When the Biden Administration announced on Friday that it will end Title 42, a controversial pandemic-era measure that has been used to conduct nearly two million expulsions of migrants since March 2020, both Republicans and centrist Democrats in Washington have been quick to sound the alarm, blaming the President for what they predict will be an influx of migrants at the U.S.-Mexico border.
A group of five Democratic and six Republican senators are expected to introduce a new bill Thursday calling on President Biden to come up with a plan to prevent a wave of migration before ending Title 42—the latest in a series of announcements this week criticizing the Administration’s decision.
On Monday, Republican attorneys general in Missouri, Arizona, and Louisiana sued the Administration. On Tuesday, Senate Republicans attempted to link a vote on Title 42 to a $10 billion COVID-19 relief package requested by the White House—a move that will likely delay a vote on the spending package—and House Republicans launched an inquiry into the decision to “turn the humanitarian and national security crisis on the U.S. southern border into a catastrophe.”
During a press conference on Wednesday, Gov. Greg Abbott told reporters that he plans to bus migrants who cross after Title 42 ends to Washington D.C. Last week, a group of former Trump officials in Texas called on Abbott to enact emergency measures to protect the state from an “invasion” by deploying the National Guard and the Texas State Guard, the Associated Press reports. The rapid and furious response seemed to signal that Republicans plan to make immigration a key issue in the November midterms.
“Both parties have a playbook,” says Theresa Cardinal Brown, managing director of Immigration and Cross-Border Policy at the Bipartisan Policy Center (BPC), a Washington think tank. “If you find an issue that seems to resonate with the electorate that hits the other side, you want to take every opportunity you can to magnify that the closer you get to election, and both sides do it on different issues, but that’s certainly happening here.”
Progressive Democrats mostly cheered the Administration’s move, saying that Title 42 violated United States and international law by allowing border agents to expel migrants before they could seek asylum in the U.S. But moderate Democrats were less enthused. The four Senate Democrats who face the toughest reelection campaigns in November’s midterm elections—Sens. Maggie Hassan of New Hampshire, Mark Kelly of Arizona, Raphael Warnock of Georgia and Catherine Cortez Masto of Nevada—all publicly lamented the Administration’s move.
Republicans return to a familiar legal argument
The Centers for Disease Control and Prevention (CDC), which oversees Title 42, announced on April 1 that the measure would no longer be enforced after May 23, explaining that it was no longer necessary “considering current public health conditions and an increased availability of tools to fight COVID-19.” Three days later, the states attorneys general filed their lawsuit in U.S. District Court Western District of Louisiana, arguing that the Administration failed to follow the Administrative Procedure Act by “unlawfully” flouting the notice-and-comment period for rule-making, a process in which officials publish a plan in the Federal Register and allow for a comment period before issuing a final rule.
Republican attorneys general used a similar argument in April 2021 to protest the Biden Administration’s attempt to end another Trump-era policy, Migrant Protection Protocols (MPP), or “Remain in Mexico.” On Aug. 31, the U.S. District Court for the Northern District of Texas issued an injunction and ordered the Administration to reimplement the policy.
On Tuesday, Senate Republicans blocked a $10 billion spending bill that would provide COVID-19 relief after a bipartisan agreement on the budget had already be reached. Sens. Mitt Romney and Chuck Schumer were pushing to bring the package to a vote before a two-week recess; the Republicans’ move will likely delay the vote until after the recess, Cardinal Brown says.
“There’s no rules to what happens in political bargaining, especially on budget,” says Muzaffar Chishti, senior fellow at the Migration Policy Institute, a nonpartisan research organization. “The Republican leadership has chosen to focus on this as their pound of flesh. It works well for the political narrative because they have decided that the border, or the perception of an uncontrolled border, sells very, very well in the political narrative today.”
Whether these Republican efforts will force the Biden Administration to continue to implement Title 42 is unclear. The states’ lawsuit may not go anywhere because of how it mischaracterizes Title 42, both Chishti and Cardinal Brown note—Title 42 is a CDC health authority with a sunset provision and was never implemented through a notice-and-comment process, therefore calling on the Administration to end Title 42 expulsions through notice-and-comment may be irrelevant.
In the Senate, however, there are signs that some Democrats may side with Republicans if Title 42 were called for a vote. In addition to Democratic Sens. Hassan, Kelly, Warnock, and Masto, Kyrsten Sinema of Arizona has been vocally critical of the decision to end Title 42.
Title 42 as a useful political tool
Republican lawmakers have said for months that they plan to use the Biden Administrations’s handling of the U.S.-Mexico border as campaign fodder before the midterm elections, says Cardinal Brown. “Republicans have been talking about Biden’s border policies since before he came in office,” she says. “So they’ve been hammering on this…It’s not a new line of attack. This is just, I think, probably the highest profile move on border issues that has happened, so far anyway.”
During a Wednesday House hearing, Republican lawmakers underscored that DHS is preparing to handle up to 18,000 encounters per day once Title 42 officially ends on May 23. They also shared their concerns over increases in drug smuggling. Hearing panelists, including Aaron Reichlin-Melnick, senior policy counsel at the American Immigration Council, attempted to counter that argument, citing DHS’s statistics that most narcotics make their way across the border in vehicles through ports of entry, not in migrant’s backpacks.
DHS announced on April 1 that it would increase official personnel at the U.S.-Mexico border to prepare for the likely increase in encounters as Title 42 comes to an end. It will also increase capacity to hold people who cross, and will ramp up COVID-19 measures and vaccinations. In March, the Administration announced it would change asylum procedure to grant asylum officers the authority to make a decision on some asylum cases, rather than the asylum claim making its way through the backlogged immigration court system.
Migration at the U.S.-Mexico border has long been used as a political tool during election seasons—whether or not the data supports claims made on either side of the aisle. Though DHS officials have said they expect an increase in migration flows to the border following the Title 42 announcement, Cardinal Brown says comparing migration to an “invasion,” as some Republicans have, is inaccurate.
“I do think that maybe some of the ‘it’s going to be chaos,’ ‘it’s going to be Armageddon,’ ‘it’s going to be a tsunami,’— I think that’s overblown rhetoric,” Cardinal Brown says. “I think there are definitely ways to manage what’s happening [at the U.S.-Mexico border] much better than has been done, but I don’t think Title 42 is the panacea that maybe people think it is or ought to be.”
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