WASHINGTON — In the early days of the pandemic, as the coronavirus closed schools and businesses and governments imposed travel restrictions, the Trump administration turned to an obscure public health law to close the southern border to migrants. Ostensibly, the rationale was that the restriction was necessary to control the pandemic.
But nearly three years later, both the Trump and Biden administrations have relied on it as a tool to prevent record numbers of migrants — often fleeing persecution and violence — from entering the country. Democrats and Republicans have largely dropped the pretense of public health concerns and are instead using the law as a bargaining chip to try to strike a deal on border security and immigration.
The once rarely used rule — known as Title 42 — has enabled border agents to quickly turn down migrants who would otherwise qualify for asylum. Now it is treated almost exclusively as a stopgap measure for a spate of border crossings likely to increase in the coming months.
Justice Neil Gorsuch accused the government of using the law as a pretext when the Supreme Court on Tuesday night reversed an examining magistrate’s ruling that would have lifted the measure.
“The current border crisis is not a Covid crisis,” Judge Gorsuch said in his dissenting opinion. “And courts should not be perpetuating administrative edicts designed for just one emergency because elected officials have failed to address another emergency.”
While the rule is debated as a means of deterring migration, the authority to maintain Title 42, which is part of the Public Health Service Act of 1944, rests with the Centers for Disease Control and Prevention. The Biden administration, which first announced last spring it would lift the policy before it was hampered by lawsuits from Republican-led states, said decisions about whether to extend or lift the rule would fall solely with public health officials.
Officials from both administrations have repeatedly argued that the policy was not an immigration policy, but rather a public health measure. But since the Trump administration’s first use of the rule, some CDC officials have questioned the effectiveness of the border restriction as a public health tool.
Kyle McGowan, the CDC’s chief of staff under former President Donald J. Trump, said that in the weeks leading up to the implementation of Title 42 in March 2020, the policy was “discussed intensely and we balked.” Martin Cetron, the director of the agency’s Global Migration and Quarantine division, later told a House committee that the policy “came from outside the CDC experts” and was “handed to us.” He added that Stephen Miller, the chief architect of Mr Trump’s anti-immigration policy, was involved in implementing the rule.
Mr. Miller even tried to use Title 42 several times before the pandemic during outbreaks of mumps in detention centers in six states and again when border stations were hit with the flu. In most cases he was talked down by cabinet secretaries and lawyers.
Public health officials continued to question the rule under Biden. In the summer of 2021, CDC officials told Mr Biden’s top aides that it was not clear there was still a public health justification for keeping the border closed to most migrants. White House officials argued that Title 42 was necessary to prevent the spread of disease in detention centers, especially as variants emerged. Privately, Mr Biden’s top aides, including his chief of staff, Ron Klain, and domestic policy adviser, Susan Rice, feared that lifting the rule would lead to a wave of migrants and partisan attacks against the Biden administration would intensify.
Dr. Anthony Fauci, the chief medical adviser to the White House, questioned the effectiveness of the border rule as a public health measure when he told DailyExpertNews last year, “The solution to an outbreak.”
The idea that immigrants bring infections to the country reflects a racist idea with a long history in the United States that associates minorities with disease.
“This is not about the pandemic anymore,” Mr McGowan said. “This is what more than 20 years of Congressional inactivity to address immigration looks like.”
On the ground, the rule has not deterred illegal migration. Since its implementation, the policy has been used approximately 2.5 million times to deport migrants – many of them asylum seekers. But many migrants are still admitted: The Biden administration has carved out a number of humanitarian exemptions for vulnerable migrants. Migrants from certain countries are also unable to be repatriated due to strained diplomatic ties, and sometimes border agents are unable to return migrants to Mexico due to reception restrictions there.
Title 42 has also had the unintended effect of giving migrants more opportunities to cross the border illegally, as many try to cross the border again after their deportation. Homeland Security officials estimate that 30 percent of illegal crossings during the pandemic were repeat offenders.
According to Customs and Border Protection data, Title 42 deportations represent only half of illegal crossing enforcements in the past fiscal year. Border agents have still had to arrest and process hundreds of thousands of migrants who could not be turned away using Title 42, leaving both border agents and border communities overwhelmed with limited resources to provide assistance to migrants.
Still, brandishing Title 42 is a way for some lawmakers and politicians in both parties to flaunt an aggressive stance at the border in the absence of a coherent immigration policy.
Title 42 “is an easy way for government officials to get immigration on their mind without doing the hard work,” Mr McGowan said. “It’s just a Band-Aid. No, I don’t believe it has anything to do with public health at this point.”
“I thought when the Biden administration came in, this would be one of the first things to be rolled back, and it wasn’t,” he added.
Democrats have used Title 42 as a shield against accusations that they are weak on border security, and the possible lifting of the rule has provided an opening for Republicans to attack the Biden White House. In the months leading up to the tightly contested midterm elections, some Democrats became more outspoken on the issue.
“We need assurances that we have security on the border and that we protect communities on this side of the border,” Georgia Democrat Senator Raphael Warnock said ahead of his re-election race when asked about the rule’s lifting. Before Nevada Democrat Senator Catherine Cortez Masto won another term last month, she too criticized the removal of Title 42, saying it would “leave the administration unprepared for a wave at the border.”
In June 2020, Ms. Cortez Masto had signed a letter with other Democratic senators accusing the Trump administration of using Title 42 “to advance an ongoing agenda to exclude asylum seekers, contrary to the plain word and the intent of Congress.” This came after one letter criticism of Title 42 signed in April by Senate Judiciary Committee Democrats, including Kamala Harris at the time.
Other lawmakers have tried to use the public health rule to broker an agreement on immigration reform. Senator Kyrsten Sinema of Arizona, who left the Democratic Party to become independent earlier this month, and Senator Thom Tillis, Republican of North Carolina, devised an immigration framework that would have extended Title 42 and provided a path to citizenship for about two million undocumented children brought to the United States as children. The deal did not receive enough support in Congress.
Asked if Title 42 was ever really a pandemic-era tool to contain outbreaks rather than an immigration tool, Mr Tillis said the policy was “the logical next step” after other Covid-19 restrictions were lifted in 2020 imposed.
“They’re at a point where I don’t think the courts will last long,” Mr Tillis said. “And that’s why we thought, talking to Border Patrol, they think it’s a really useful weapon to reduce power.”
Emily Cochrane reporting contributed.
