Title 42 Expulsions Made the Border Less Secure

The Trump administration invoked Title 42 in late March 2020. Biden repeatedly extended it. Now, a federal judge has blocked the administration from lifting the order.

When President Joe Biden announced in April that he would not extend a controversial public health order that allowed U.S. immigration officials to expel migrants, many on the right criticized the move as premature or misguided. But the order has actually made the border less secure.

The Public Health Service Act, part of Title 42 of the U.S. Code, authorizes federal officials to control the interstate and international spread of diseases. The Trump administration invoked Title 42 in late March 2020 to keep would-be migrants from crossing into the U.S. from Canada and Mexico, ostensibly to prevent the spread of COVID-19. Biden repeatedly extended the order despite the harm to migrants and objections from U.S. physician groups. A federal judge has now blocked the administration from lifting the order, signaling a potential legal battle ahead.

Customs and Border Protection (CBP) invoked Title 42 in nearly 1.8 million migrant encounters between April 2020 and March 2022, amounting to 61 percent of total encounters. Title 42 allowed immediate expulsion and barred affected migrants from applying for asylum.

Although immigration opponents pointed to those numbers as proof of the policy's necessity, the figures were inflated. Because Title 42 is a health measure, immigration officials could not impose reentry penalties on expelled migrants. With no disincentive for reentry, the share of encounters that involved repeat crossers jumped to 27 percent in 2021, nearly four times higher than in 2019.

Excluding repeat crossings, the number of border apprehensions resembled pre-pandemic levels. Border hard-liners ignored that point, pointing to headlines announcing record CBP apprehensions. Meanwhile, most would-be migrants were unable to request asylum at a port of entry, opting instead to congregate at the border. That was the natural result of shutting down more orderly immigration channels.

Smugglers have been among the major beneficiaries of Title 42 expulsions. "It's great for us," one told Reuters, saying he could charge migrants $14,000 for three attempts at crossing into the United States. Reuters also reported that smugglers were saving money because Title 42 expulsions dropped migrants off close to the border rather than sending them back to their home countries. For migrants attempting the journey multiple times, smugglers did not have to pay the cost of transporting them north again.

The Title 42 order has led to more frequent and less predictable migrant inflows. With proper planning, its phaseout could result in more efficient processing at the border. Restoring the asylum-seeking process, coupled with expanding opportunities for temporary work visas and economic migration, could help prevent both harm to migrants and chaotic scenes at the border.