The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Officially, the Biden Administration wants to end Title 42 "public health" expulsions of migrants at the southern border, and the flawed recent Supreme Court decision indirectly requiring them to continue was a defeat for the White House. But, as Washington Post columnist Catherine Rampell explains in an excellent recent article, Biden may actually be playing a double game here. Even as he says he wants to terminate the policy, he has offered only a tepid legal defense of those efforts, while simultaneously actually expanding the use of Title 42 to cover more people:
"Title 42" is shorthand for what is effectively an abuse of a public health authority to circumvent U.S. asylum laws. Beginning in March 2020, the Trump administration used an obscure public health statute to automatically expel migrants without allowing them to first apply for asylum, as is their right under U.S. law and international treaty….
As a presidential candidate, Joe Biden pledged to restore the integrity of the asylum system. He promised that anyone qualifying for an asylum claim would "be admitted to the country through an orderly process." As president, though, Biden dragged his feet in terminating Title 42. He finally agreed to end the program this past spring. But termination has since been delayed by complicated court rulings, which Biden officials seem to have fought only half-heartedly…..
Instead, Biden officials seem to have seized the opportunity to make yet more immigrant groups subject to automatic expulsions.
In October, the Biden administration announced it would begin using Title 42 to expel Venezuelans, who had previously been exempted due to difficulties in deporting them back to their (unstable) home country. And on Wednesday, Reuters reported that the administration plans to soon use Title 42 to expel Cuban, Nicaraguan and Haitian migrants caught at the southwestern border, too. As had been the case with Venezuelans, these groups have generally not been subjected to the automatic expulsion policy, also largely because of diplomatic complications.
Additional evidence of the administration's foot-dragging is that, while they have appealed a federal Texas district court ruling that blocks termination of the policy, they have not requested that the court of appeals stay the district court decision (which means the latter remains in force as litigation continues). This district court ruling is currently the main legal obstacle to ending the policy. The recent Supreme Court decision ties the administration's hands only in so far as it indirectly allows that district court ruling to remain in place.
Furthermore, the Administration has not initiated a notice and comment process for the rule terminating the expulsions. The district court decision blocking the end of the policy is based on the theory that such a process is required by the Administrative Procedure Act. Whether the APA actually requires the use of that procedure here is debatable. If you believe—as I and many other critics do—that the Title 42 expulsion policy is itself illegal, then it is not protected by the APA. But the Biden Administration (like Trump before it) has taken the position that the policy is legal, which makes it harder (though admittedly not impossible) to defend against the APA claims filed by various GOP state governments. Going through notice and comment would at least have strengthened the Administration's position.
If the Administration is indeed playing a double game, the most likely explanation is that they want to use Title 42 to help alleviate perceptions that there is a crisis at the border. But, as Rampell points out, Title 42 has done little to alleviate the problem, which is actually the result of the lack of legal alternatives for most migrants:
Whatever its intentions, [Title 42] didn't reduce stress at the border; instead, it increased attempted border crossings, as many people expelled without consequence or due process turned right around and tried again to enter the United States….
So what should the administration and Congress be doing instead?
Most important: Create more legal, safe, orderly pathways for people to come to the United States, both to seek protection from persecution and to pursue economic opportunities.
Americans often complain that immigrants should come here "the right way," but for many migrants, showing up at the border unannounced and turning themselves in is the only legal pathway available. If given options to come here that don't require paying gangs and crossing deserts, people would gladly take them — which would in turn alleviate stress at the border.
Among the more obvious steps: Send more resources to border communities, including to the many faith-based organizations assisting migrants. Beef up the asylum system so that cases can be adjudicated more efficiently and expeditiously.
Also, enable asylum seekers to apply for work permits much earlier — currently they must wait six months before they can even submit an application — so they can achieve the financial independence necessary to leave shelters.
Pressure at the border could also be alleviated by empowering state governments that want additional migrants to issue their own state-based visas. The Administration would do well to end the foot-dragging, make a stronger effort to end Title 42, and adopt these ideas instead.
In the meantime, Biden - like Trump before him - is perpetuating a policy that uses public health emergency powers as a pretext for pursuing other ends, undermines the constitutional separation of powers, and inflicts massive cruelty on migrants fleeing poverty and oppression.
The expansion of Title 42 to cover Venezuelans, Cubans, and Nicaraguans is particularly reprehensible, given that these migrants are fleeing brutally oppressive communist and socialist governments. There was a time when conservatives would have condemned Biden for barring refugees from communism. Today, most of them actually support this step and demand its indefinite continuation.
It would be a mistake to conclude that Biden's immigration policies are just a continuation of Trump's. On many issues, he has made major improvements. But when it comes to Title 42 expulsions, he has perpetuated and in some ways even expanded a cruel and illegal policy he had promised to end.