WWhen the Biden administration announced that Title 42 would be ending, an controversial anti-pandemic measure used for nearly two million expulsions from migrants each year since March 2020. Washington Republicans quickly raised alarm. They blamed President Trump for what they believe will lead to an increase in migrants crossing the border to Mexico.
Tuesday saw Republican attorneys general from Missouri, Arizona, Louisiana sue the Administration. On Tuesday, Senate Republicans attempted to link a vote on Title 42 to a $10 billion COVID-19 relief package requested by the White House—a move that will likely delay a vote on the spending package—and House Republicans launched an inquiry into the decision to “turn the humanitarian and national security crisis on the U.S. southern border into a catastrophe.”
On Wednesday, Governor. Greg Abbott told reporters that he plans to bus migrants who cross after Title 42 ends to Washington D.C. Last week, a group of former Trump officials in Texas called on Abbott to enact emergency measures to protect the state from an “invasion” by deploying the National Guard and the Texas State Guard, the Associated Press reports. It seemed that Republicans planned to make immigration one of their key issues in November’s midterm elections.
“Both parties have a playbook,” says Theresa Cardinal Brown, managing director of Immigration and Cross-Border Policy at the Bipartisan Policy Center (BPC), a Washington think tank. “If you find an issue that seems to resonate with the electorate that hits the other side, you want to take every opportunity you can to magnify that the closer you get to election, and both sides do it on different issues, but that’s certainly happening here.”
Progressive Democrats mostly cheered the Administration’s move, saying that Title 42 violated United States and international law by allowing border agents to expel migrants before they could seek asylum in the U.S. Moderate Democrats, however, were not as enthusiastic. The four Senate Democrats who face the toughest reelection campaigns in November’s midterm elections—Sens. Maggie Hassan of New Hampshire, Mark Kelly of Arizona, Raphael Warnock of Georgia and Catherine Cortez Masto of Nevada—all publicly lamented the Administration’s move.
Republicans are back at their old legal argument
The Centers for Disease Control and Prevention (CDC), which oversees Title 42, announced on April 1 that the measure would no longer be enforced after May 23, explaining that it was no longer necessary “considering current public health conditions and an increased availability of tools to fight COVID-19.” Three days later, the states attorneys general filed their lawsuit in U.S. District Court Western District of Louisiana, arguing that the Administration failed to follow the Administrative Procedure Act by “unlawfully” flouting the notice-and-comment period for rule-making, a process in which officials publish a plan in the Federal Register and allow for a comment period before issuing a final rule.
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Republican attorneys general used a similar argument in April 2021 to protest the Biden Administration’s attempt to end another Trump-era policy, Migrant Protection Protocols (MPP), or “Remain in Mexico.” On Aug. 31, the U.S. District Court for the Northern District of Texas issued an injunction and ordered the Administration to reimplement the policy.
After a bipartisan deal on the budget, Senate Republicans rejected a spending bill worth $10 billion that would have provided COVID-19 relief. Sens. Mitt Romney and Chuck Schumer were pushing to bring the package to a vote before a two-week recess; the Republicans’ move will likely delay the vote until after the recess, Cardinal Brown says.
“There’s no rules to what happens in political bargaining, especially on budget,” says Muzaffar Chishti, senior fellow at the Migration Policy Institute, a nonpartisan research organization. “The Republican leadership has chosen to focus on this as their pound of flesh. It works well for the political narrative because they have decided that the border, or the perception of an uncontrolled border, sells very, very well in the political narrative today.”
Uncertain whether the Republican effort will cause the Biden Administration not to keep implementing Title 42 is another matter. The states’ lawsuit may not go anywhere because of how it mischaracterizes Title 42, both Chishti and Cardinal Brown note—Title 42 is a CDC health authority with a sunset provision and was never implemented through a notice-and-comment process, therefore calling on the Administration to end Title 42 expulsions through notice-and-comment may be irrelevant.
However, some signs are present in the Senate that Democrats could side with Republicans should Title 42 be brought up for a vote. Other than Democratic senators. Hassan, Kelly and Warnock. Has beenVoicefully critical of Title 42’s end.
Title 42: A useful tool for politics
Republican lawmakers have said for months that they plan to use the Biden Administrations’s handling of the U.S.-Mexico border as campaign fodder before the midterm elections, says Cardinal Brown. “Republicans have been talking about Biden’s border policies since before he came in office,” she says. “So they’ve been hammering on this…It’s not a new line of attack. This is just, I think, probably the highest profile move on border issues that has happened, so far anyway.”
Republican lawmakers highlighted the fact that DHS has plans to manage up to 18,000 daily encounters once Title 42 expires on Wednesday at the House. Their concerns about drug smuggling were also raised. Hearing panelists, including Aaron Reichlin-Melnick, senior policy counsel at the American Immigration Council, attempted to counter that argument, citing DHS’s statistics that most narcotics make their way across the border in vehicles through ports of entry, not in migrant’s backpacks.
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DHS declared on April 1 it will increase the U.S./Mexico border official staff to be ready for the increase in encounters due to Title 42 ending. They will be able to keep more people from crossing the border and increase COVID-19 vaccinations and measures. In March the Administration stated that they would alter the asylum procedure so that asylum officers have the power to rule on some cases.
Migration at the U.S.-Mexico border has long been used as a political tool during election seasons—whether or not the data supports claims made on either side of the aisle. Though DHS officials have said they expect an increase in migration flows to the border following the Title 42 announcement, Cardinal Brown says comparing migration to an “invasion,” as some Republicans have, is inaccurate.
“I do think that maybe some of the ‘it’s going to be chaos,’ ‘it’s going to be Armageddon,’ ‘it’s going to be a tsunami,’— I think that’s overblown rhetoric,” Cardinal Brown says. “I think there are definitely ways to manage what’s happening [at the U.S.-Mexico border] much better than has been done, but I don’t think Title 42 is the panacea that maybe people think it is or ought to be.”
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