Title 42 for Who(m)?

Get the wall finished, more storage containers and buses headed North.  Some leaders yell people illegally crossing our Southern border are headed for a dramatic increase if Title 42 is ended.  Republican attorneys general in 15 states have argued that ending Title 42 will increase the flow of migrants into the U.S.  What is Title 42 and how did it become the great gatekeeper?

Title 42 of the U.S. Government Code established July 1, 1944  grants federal authorities the power to deny entry of people into the country to limit the spread of a communicable disease.  Title 42 was rarely-used until the Trump Administration began using it in 2020 to control migrants entering illegally from our Southern border.

Keep in mind that President Trump told us not to be concerned “It’s going to disappear. One day, it’s like a miracle, it will disappear.”

In March, 2020 the Center for Disease Control and Prevention (CDC) Director Robert Redfield invoked Title 42 to authorize U.S. border officials to expel migrants.  Redfield said the expulsions were necessary to control the spread of COVID-19 in border facilities, protect U.S. agents from the virus and preserve medical resources.   Was this a proper use of Title 42 or was it wrong? 


The Title 42 expulsion policy has effectively closed the US Southern border to nearly all asylum seekers. The 1944 Public Health Service Act was to confer quarantine authority to health authorities that would apply to everyone, including US citizens, arriving from a foreign country.  Congress kept any reference to immigrants or immigration out of the law’s text because of concerns that public health authority could be used to discriminate against immigrants.

Discussions with a senior CDC official who asked to remain anonymous have made clear that the CDC order closing the border to most migrants was not based in scientifically grounded public health evidence. Instead, it was a response to political pressure.  Even more telling, to prove to other countries that it wasn’t sending people who were infected with Covid-19 back to them, DHS tested many migrants. One newspaper captured the absurdity of the policy: “ICE is making sure migrant kids don’t have Covid-19, then expelling them to ‘prevent the spread’ of Covid-19.”

In a period of nine months, the Trump administration carried out over 400,000 Title 42 expulsions along the southern border. During Mr. Biden’s tenure, U.S. border authorities have carried out over 2 million expulsions.  Apparently there are no “clean hands” with this policy.  Does that mean we should ignore it, keep it or can we find a better way?

The Biden administration sought to end Title 42 in the spring of 2022, pointing to the improving pandemic environment and drop in coronavirus infections.  A coalition of Republican-led states convinced a federal court to block the policy’s termination on procedural grounds. 

The policy has been effective in limiting immigrants crossing our Southern border.  Why should we not leave it in place?   If we consider ourselves to be a well meaning, caring and honorable nation are there any other considerations?  Reading Title 42 and its intent it seems to be a stretch to conclude that Title 42 is our best legal action.  Currently it only applies to migrants at our southern border and only to migrants specifically.  The actual law applies to everyone and logically to all our borders. 

In November, a federal judge declared Title 42 illegal, saying the government had not sufficiently explained the public health justification for the measure or considered its impact on asylum-seekers.  The US Supreme Court has recently issued a stay onTitle 42.

Under Title 42, when border officials deny migrants entry into the country it’s considered expulsion and differs from deportation because the basis for denial stems from public health concerns rather than immigration law.

Title 42 was a game changer in terms of the magnitude and the swiftness in which it was applied when people were expelled immediately back to Mexico.  Nicolas Palazzo, a senior attorney at Las Americas, an immigration advocacy group, says “There was a lot said about building a wall, and in reality, the most effective wall was Title 42.”

The Supreme Court has left Title 42 in place.   As lawyers and judges have they read the law or blindly opine for conservative political positions.  Legal intent seems irrelevant to five of the nine justices.  The Biden administration has said it is preparing for Title 42’s end by increasing personnel and resources at the southern border; increasing migrant processing capacity; expanding its use of expedited removal and prosecutions for certain migrants; enhancing its collaboration with groups that assist asylum-seekers; cracking down on human smugglers; and enlisting the help of other countries in the Western Hemisphere to reduce U.S.-bound migration. 

The administration has also been considering adopting certain policies designed to deter migration, including an asylum restriction that would render migrants ineligible for U.S. protection if they did not ask for refuge in other countries first.  The administration responded that it is not legitimate to use a health measure in place of immigration rules. It acknowledged that ending Title 42 orders “will likely lead to disruption and a temporary increase in unlawful border crossings,” and it “in no way seeks to minimize the seriousness of that problem.” But, the administration asserts, “the solution to that immigration problem cannot be to extend indefinitely a public-health measure that all now acknowledge has outlived its public-health justification.” Instead, the country needs to rely on the immigration laws.

Republicans have just killed a measure to increase funding and personnel at the border, and to extend restrictions until new facilities are built.  The problem is serious and as Americans we must address the immigration problem in a common sense and humane manner not through political pandering.









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