For many months, the Biden administration has kept the southern border largely closed to asylum seekers, turning them away without hearings while relying on a covid-19 related directive to do so. But this is dubious as a public health rationale, and it’s long been obvious that the real goal was to manage and reduce the flow of migrants for other reasons, substantive and political alike.
Now the administration may be about to end the policy. If so, President Biden and Democrats should ask themselves what on Earth they gained politically from this approach — the answer is little to nothing — and what can be learned from this.
At issue is the Title 42 public health order that since 2020 has let the government block noncitizens from entering the country. The administration has largely kept this policy in place since taking power in 2021, expelling adult migrants and families while lifting the restriction for unaccompanied child migrants, who are being admitted and processed.
CNN and the Associated Press are now reporting that the administration is likely to lift the policy sometime in May, now that covid is receding. This might result in more asylum-seeking adults trying to enter the country, as CNN notes:
Homeland Security Department officials are preparing for a worst-case scenario of up to 18,000 people trying to cross the border daily, a number sure to overwhelm the already full border facilities.
The administration is setting up mechanisms to process rising arrivals, but it’s likely that the news will be awash in scenes of overwhelmed border facilities. And Republicans, who are already denouncing the specter of lifting the Title 42 ban, will escalate attacks on “Biden’s border crisis.”
Some Democrats are already spooked by this, Politico reports. The administration may mollify them by phasing out the policy over time, but even so, Democrats will face new political challenges.
Title 42 used a public health rationale as the reason to deny asylum seekers their legal right to have their case heard. For complicated reasons, some asylum seekers are being processed and released into the interior with monitoring devices, but many more than that are being expelled. In February, nearly 100,000 interceptions at the border led to expulsion under the policy.
The big question will be what happens when more are permitted to enter the system. That question has substantive ramifications (how will they all be processed?) and political ones (how will Democrats respond when Republicans scream?).
There are no easy answers here for Democrats. But one way forward might be rooted in a recognition that using Title 42 to keep migrants out bought President Biden and Democrats no good will, either from Republicans or the public.
This policy didn’t work substantively or politically. Its rationale — that it’s needed for public health purposes — has been widely denounced by public-health experts as baseless. As policy for managing the border — which isn’t even supposed to be its rationale anyway — its success has been highly questionable.
As the American Immigration Council has demonstrated, Title 42 has actually led to an explosion in repeat efforts by expelled migrants to cross the border, because under the rule, there is little penalty for trying. That has inflated raw numbers of encounters at the border.
“Title 42 directly caused hundreds of thousands of additional encounters by creating a significant incentive to cross the border again after being expelled,” Aaron Reichlin-Melnick of the American Immigration Council told us.
Nor has this even worked politically for Biden. Republicans attacked Biden for months for having “open borders” even though huge numbers of migrants were being expelled without due process. And Biden’s approval ratings on immigration are some of his lowest, regularly running in the mid-30s, down from the 50s when he first took office.
Biden does have a plan to manage the situation. It combines a number of elements, such as scaling up processing of asylum seekers in their home countries, making the processing of asylum seekers here more efficient by letting asylum officers adjudicate their cases, and creating new facilities to process arrivals more quickly.
But this will continue to be a profoundly difficult problem to manage. And the truth is, as long as that remains the case, Biden’s approval on the issue will likely remain in the doldrums. That is understandable: The public wants the problem handled, and rightly so.
So a better political approach might be to explain these challenges forthrightly to the public. Explain that this is a hard problem, that excluding all asylum seekers isn’t an answer, and that rationalizing the system is worth attempting, deserves public patience, and could produce a better outcome than mass expulsion has.
That approach would push a lot of Democrats out of their political comfort zones. But the alternative of expelling as many migrants as possible hasn’t worked, either.
It’s been indefensible on the merits. It hasn’t bought Democrats any points from the public. And it has ceded the field to the Republican media machine without offering any clear direction to the American people about what Democrats hope for from our immigration system. It’s time to try something else.