In just over two years, President Biden has overseen the recovery of the nation after a pandemic that took the world, and the U.S., by storm. His administration entered the White House at the beginning of the comprehensive vaccine rollout and state-by-state return to normalcy. His administration also entered the White House when the American people were more polarized than ever. Specifically in Southern border states, conservatives have criticized Biden’s more welcoming approach to migrants seeking asylum, while his supporters may be disappointed with his lack of action. With the COVID-19 public health emergency set to end in May, it is possible that the Trump-era border policy— Title 42— will end with it.
What is Title 42, and what are the legal challenges surrounding it?
Title 42 grants the Surgeon General the power to determine if the existence of an infectious disease in another country creates danger through the introduction of said disease into the United States, limiting the entrance of people or property from these countries. The process must be approved by the President and can last until deemed necessary.
With the global spread of COVID-19 in early 2020, the Centers for Disease Control and Prevention (CDC) and the Trump administration enacted a public health emergency, enacting Title 42. U.S. Customs and Border Protection agents were granted permission to quickly deport asylum seekers in response to the spike in border crossings, which resulted in nearly 2 million asylum seekers being removed from the U.S.
Roughly one year later, CDC Director Rochelle Walensky announced that the Title 42 restrictions would be lifted, stating that she “no longer found a public health justification” for the statute to continue. A group of GOP-led states then successfully challenged the decision, enabling Title 42 to stay in place today. The Supreme Court is set to hear a case challenging the Biden Administration’s attempts to end Title 42 on March 1, 2023. Biden’s administration and the Department of Justice are requesting that the case be dropped, arguing that the conclusion of the COVID-19 public emergency on May 11, 2023, would “render this case moot.” CDC regulations on Title 42 state that the policy should end when the Secretary of Health and Human Services' declaration of a “public health emergency” from the pandemic expires.
Title 42 as a political weapon
“Stopping the spread of infectious diseases,” as specified in Title 42, proved to be a convenient cover-up for Trump and his administration, who hoped the policy would mitigate the number of immigrants entering the U.S. from Central and South America. President Biden has taken a more open stance on immigration and was expected to overturn the policy early in his term. Aides in the Biden administration have expressed concern about how to adapt Title 42: either (1) removing the policy and combating a flood of migrants and Republican opposition or (2) leaving it in place and continuing to frustrate immigration activists and other Democrats who expected a shift in attitudes towards immigrants.
The end of Title 42 would propel Republican arguments into further extremism against immigrants while also appeasing immigration activists, increasing tension and possibly political polarization at a time when it is already at an all-time high. President Biden has had difficulty appealing to both sides of the aisle throughout his term, especially on high-stakes issues such as immigration. It appears the current attempt to remove Title 42 extends as far as the plea to drop the Supreme Court case, which is unlikely to be thrown out over a tentative date ending the COVID-19 emergency.
Surges At the Border and Asylum Numbers
According to the Department of Health and Services, 4,000 refugees entered the U.S. in August of 2021, with only 1,000 affirmative asylums granted. A continuation of this imbalance could continue to strain the immigration system, with more refugees seeking asylum than immigration officials can process. When Title 42 was introduced, migration at the southern border had reached its highest point since 2006. By November 2022, it reached a peak unrecorded since before 2000.
There are multiple ways of entry into the U.S. for legal residency, specifically for those seeking legal asylum. Migrants must demonstrate that they have suffered persecution or have a “well-founded fear” of further persecution if they continue to live in their home country. Military conflict and gang violence in Latin American nations are exacerbating the number of families attempting to enter the U.S., who would then typically argue their case in the courts. Over half of the asylum applications that were processed by the United States Citizenship and Immigration Services (UCSIS) came from Central and South America in 2021. As a result of Title 42, there has been a 26% decrease in asylum seekers since 2019, despite peak numbers of migrants at the southern border.
Title 42 has effectively lowered the number of migrants seeking asylum, which border security proponents will celebrate, while activists who seek fairness and justice for immigrants will criticize the policy. Inconsistencies in Biden’s administration’s immigration policies have been brought to light as he wishes to simultaneously reform the legal system to allow more migrants while also cracking down on illegal border crossings. His request for the Supreme Court to drop the Title 42 case, and remove the policy altogether after May 11, occurs during one of the peak months for migration across the southern border, proving spring to be a defining moment for Title 42. When the cherry blossoms bloom in the nation’s capital, President Biden and immigration officials will face challenges to explain and implement a cohesive border policy.