The Title 42 policy that began during the Trump administration, and that enables federal officials to swiftly expel migrants from the U.S. borders, has lasted longer than many Democratic leaders and immigration activists had hoped.
After pushback from advocacy groups, the Biden administration had planned to end the Title 42 policy May 23, but U.S. District Judge Robert R. Summerhays in Louisiana stopped the administration days before. Then U.S. District Judge Emmet G. Sullivan in the District of Columbia vacated the policy in November and set a deadline for Title 42 to end Dec. 21.
Republican officials in 19 states, including Arizona and Texas, have attempted to keep Title 42 from ending. A D.C. appeals court panel ruled last week that the states’ efforts came too late.
The Republicans then appealed to the Supreme Court, where Chief Justice John G. Roberts Jr. on Monday issued a temporary administrative stay while he considers the states’ request to keep the policy in place.
The Biden administration told the Supreme Court on Tuesday that it should be allowed to end the pandemic-era policy. But the government asked the court for a few days of breathing room until after the Christmas holiday to prepare for the change at the U.S. border.
Ending Title 42 is projected to attract thousands more migrants to the border, adding to the record number of people who have been apprehended over the past two fiscal years. Some are seeking to work in the rebounding U.S. economy, while others are fleeing persecution and wish to claim asylum. Political battles over the border and the humanitarian challenge of caring for diverse and fast-changing flows of people — with different languages and reasons for coming to the United States — are likely to dominate the legislative agenda next year.
Here’s more about Title 42 and its implications for politics and the border:
What is Title 42?
Title 42 is a public health law, but the term has become shorthand for a Centers for Disease Control and Prevention order based on a section of the law that authorizes the government to restrict migration to prevent the spread of communicable diseases — in this case, the coronavirus.
The order allows the government to send migrants back to their home countries immediately upon apprehending them.
Previously, these migrants would be held in detention facilities and charged with immigration offenses or released to await a hearing in the backlogged immigration courts, months or years in the future. Many hoped to request asylum, which could allow them to stay permanently. And given the backlog of asylum cases, they could be allowed to live in the country legally for several years while they waited for a judge to fully adjudicate their case.
With Title 42, migrants are removed from the country after they are caught by the Border Patrol, and they can’t request asylum proceedings.
The Trump administration implemented the Title 42 order in March 2020, as the pandemic was taking off. Activists argued that President Donald Trump used the pandemic as a pretext to close the borders to asylum seekers, something courts had not allowed him to do. Trump otherwise downplayed the virus as it rampaged across the United States and morphed into one of the country’s leading causes of death.
The Biden administration has kept Title 42 in place, although some immigration and civil rights activists have chipped away at it in court. Border crossings — and apprehensions — went from their nadir around the time the policy was implemented to some of the highest levels ever. (Crossings rose partly because, under Title 42, migrants are expelled without a mark on their record, so many tried crossing multiple times.)
Why is it controversial?
A few reasons.
Activists argue that this is an inhumane way to treat people seeking refuge. Federal law says people who set foot on U.S. soil should be allowed to request asylum. And they argue that the policy violates the international principle of not sending people to countries where they might be persecuted.
Also, migrants’ countries of origin may not be their current home. In 2021, during a surge of Haitian migrants at the border (sparked by the pandemic, political upheaval and a worsening global economy, among other reasons), the Biden administration used Title 42 to send many to Haiti. But for a number of those migrants, who had been living and working in Brazil, Chile or other South American countries for years, home wasn’t in Haiti anymore.
In September 2021, the U.S. special envoy to Haiti resigned in protest of this practice. “I will not be associated with the United States’ inhumane, counterproductive decision to deport thousands of Haitian refugees and illegal immigrants to Haiti, a country where American officials are confined to secure compounds because of the dangers posed by armed gangs in control of daily life,” Daniel Foote wrote to Secretary of State Antony Blinken. (The Department of Homeland Security has since granted tens of thousands of Haitians who recently crossed the border “temporary protected status,” and it has discouraged others from paying smugglers to take them to the border.)
Nonprofits such as the American Civil Liberties Union filed lawsuits during the Trump administration to stop the expulsions of unaccompanied minors and migrant families. Biden exempted unaccompanied minors from the policy early on. But he continued expelling many families and single adults, the largest group crossing by far.
In March, a federal appeals court in D.C. said the Biden administration could keep using Title 42 but couldn’t send people back to countries where they would face persecution, citing “stomach-churning evidence” that the U.S. government had delivered people to places where they faced rape, torture and death.
The next month, the CDC declared that Title 42 would end May 23.
Republican officials from 24 states sued in federal court in Louisiana, and a judge temporarily halted plans to end it, saying the federal government did not follow the proper notice-and-comment procedure for ending it.
Six months later, in November, a federal judge in D.C. vacated the policy entirely as unlawful and ordered it to end by Dec. 21, which lawyers say obliterated the need for public comment.
Why did the Biden administration decide to keep this in place for so long?
It framed Title 42 as temporary. But as recently as January, it argued in court that the policy is necessary to protect public health and stop the coronavirus from spreading in crowded detention centers along the border.
That argument became less tenable as vaccine doses became easier to come by and coronavirus case numbers dropped. And federal courts found no evidence that the policy had prevented the spread of the virus, which rampaged across the United States as the Trump administration downplayed the virus away from the border. “At this point, it’s become nearly impossible to justify Title 42,” said Jessica Bolter, formerly of the nonpartisan Migration Policy Institute.
Some officials and observers say that lifting Title 42 could lead to significant problems on the border.
It could implicitly encourage migrants to come and seek asylum, in hopes of winning release in the United States.
“Intelligence suggests that there will be a lot more people migrating on the border,” Attorney General Merrick Garland told Congress in April, when asked about the possible effects of lifting Title 42.
Biden has struggled politically with the border. Attempted crossings spiked as he took office, amid the belief that he would be more lenient to migrants than Trump was. As a result, immigration was one of the dark spots in Biden’s polling early in his administration. Troubling images arose from crowded border situations, like that of a White Border Patrol agent on horseback trying to catch Haitian men. “I was horrified by what I saw,” Homeland Security Secretary Alejandro Mayorkas said at the time.
An internal investigation later concluded that the Border Patrol agents who confronted Haitian families in September 2021 in Del Rio, Tex., did not strike migrants with their reins but used “unnecessary” force and lacked proper guidance from supervisors.
Democrats soon will give up control of the House of Representatives after losing the majority in November’s elections. Republicans have signaled that they intend to hold the Biden administration accountable for the border, though bipartisan efforts to pass bills that would improve border security have fizzled out.
Many officials have worried that an increase in border crossings could send an influx of migrants to communities along the U.S.-Mexico border that aren’t prepared to handle them. The border city of El Paso declared a disaster last weekend, and New York Mayor Eric Adams said the city is in “urgent need” of help to resettle new arrivals. The city has absorbed more than 31,000 asylum seekers, he said, and expects more than 1,000 newcomers a week once Title 42 lifts.
What are the political implications of ending Title 42?
Making it easier for migrants to cross the border is not a popular move on Capitol Hill. Some Democrats have joined Republicans in expressing concern about losing Title 42, while others have pressured Biden to end it.
Two Democrats, Sen. Joe Manchin III of West Virginia and Rep. Henry Cuellar of Texas, joined two Texas Republicans, Sen. John Cornyn and Rep. Tony Gonzales, in a letter to Biden on Dec. 13 urging his administration to extend Title 42 beyond the Dec. 21 deadline. They called the measure “our only effective tool for controlling unlawful migration.”
“While admittedly imperfect, termination of the CDC’s Title 42 order at this time will result in a complete loss of operational control over the southern border, a profoundly negative impact on border communities, and significant suffering and fatalities among the migrants unlawfully entering the United States,” the lawmakers wrote.
These Democrats are at odds with immigration activists in their party, as well as leaders such as Senate Majority Leader Charles E. Schumer (D-N.Y.) and Sen. Robert Menendez (D-N.J.), chair of the Senate Foreign Relations Committee, who have called for the policy to end.
Meanwhile, Republicans have jumped at the opportunity to appear strong on border politics.
Texas Gov. Greg Abbott (R) used the ending of Title 42 as a reason to implement state inspections of trucks at the border (which already undergo federal inspections), creating miles-long backups for food and other goods headed into the United States. He pulled back amid complaints, but on Dec. 13 the Texas Department of Public Safety (DPS) said it had renewed “frequent” and “enhanced” inspections of trucks as they cross the border into Texas.
“Cartels do not care about the condition of the vehicles they send into Texas any more than they do about the human lives they cram into tractor-trailers or those lost to a fentanyl overdose,” DPS Director Steven McCraw said in a statement.
Abbott has also said he has bused thousands of migrants to liberal Northern cities, crowding shelters in places such as New York, to punish those cities for adopting policies that Republicans say shelter undocumented immigrants. Arizona’s governor has also bused migrants to other cities, and Florida Gov. Ron DeSantis spent government money to fly two planeloads of migrants from Texas to the Massachusetts island of Martha’s Vineyard, without alerting local officials that they were coming.
Ann E. Marimow contributed to this report.
This article has been updated.