The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Tomorrow, the Biden Administration will finally end Title 42 "public health" expulsion of migrants on the southern border, after 3 years and some 2.7 million people expelled. The use of Title 42 caused great suffering for little or no benefit. It was also an egregious example of the abuse of "public health" emergency powers for unrelated policy goals. Biden plans to replace Title 42 with a combination of new policies, some of them good, but others very bad.
Though it is sometimes forgotten today, the ostensible rationale for the use of Title 42 was the need to curb the spread of the coronavirus pandemic. Indeed, the authorizing statute is a public health power granted to the Centers for Disease Control in order to prevent the "introduction" of diseases into the United States.
As a public health measure, Title 42 was a dismal failure. The original Covid variant and later ones such as Delta and Omicron all still quickly got into the US and swiftly spread throughout the country, despite Title 42 and other migration restrictions. Public health experts in both the Trump and Biden administrations knew early on that Title 42 had little if any effect on the spread of Covid. But first Trump and then Biden continued the policy for other reasons: Trump as part of his general anti-immigration agenda, and Biden because he hoped it would help curb politically damaging perceptions of disorder at the border.
In this way, the invocation of Title 42 over the last three years has been a particularly egregious case of the abuse of public health powers for the purpose of pursuing unrelated political goals. Conservatives and others who oppose such shenanigans in other contexts should object to it here, too. On top of that, the use of Title 42 under Trump and Biden was also illegal. The power to block "introduction" of a disease into the United States surely does not apply to a virus that has already established itself here on a large scale. Biden and Trump's broad interpretation of the statute would give the CDC nearly limitless authority over immigration, thereby violating the major questions doctrine, and constitutional nondelegation constraints.
Biden's imminent termination of Title 42 by ending the Covid-19 state of emergency is likely to moot out ongoing litigation over the policy. But these legal issues may well recur in the future, as the use of Title 42 in the Covid crisis may have set a dangerous precedent for its future invocation.
In the meantime, Biden plans to replace Title 42 with a set of new policies. Andrew Selee, president of the Migration Policy Institute, has a detailed overview here. As Selee notes, some of them involve expanding pathways to legal entry for would-be migrants, such as a new private sponsorship parole policy for migrants from four Latin American nations, which has already greatly reduced illegal border crossings by citizens of those nations.
But there is also a new set of restrictions on migrants seeking asylum that will make it far more difficult for them to try to obtain it by crossing into the US. I summarized and critiqued this policy in a February post (the actual rule is very similar to the preliminary draft proposal announced then):
The new rule would summarily expel most asylum seekers unless they have 1) been rejected for asylum in a third country they have passed through (usually Mexico), 2) they have used the CBP One cellphone app to make an appointment for an asylum interview with a Customs and Border Protection (CBP) official, or 3) they can prove that an "ongoing and serious obstacle" prevents them from doing one of the above (the burden of proof is on the asylum seeker).
Critics rightly point out that many asylum seekers don't have access to cellphones or cannot use the app for other reasons. Among other problems, it is notoriously prone to various glitches. Even if the app works as it is supposed to, migrants who use it may have to wait months to get an interview, during which time they are likely to be exposed to dangerous conditions in Mexico or Central America.
These and other flaws have led opponents to compare the new Biden policy to Trump-era initiatives designed to bar asylum seekers. In response, the administration points out they have given would-be migrants some alternative options, such as the app, and applying for private sponsorship …. The latter is open to would-be migrants from Cuba, Nicaragua, Venezuela and Haiti. Trump's proposals didn't include any such workarounds.
But even if Biden's new proposal isn't fully Trumpian, it is certainly Trump-lite. While it does not categorically bar all asylum seekers, it does effectively do so for the many who do not qualify for private sponsorship…. and cannot effectively use the app….
Sadly, the administration has not yet fully figured out that the best way to prevent border disorder is to make legal migration easy, even though its new policy of using the parole power to grant entry to migrants from four nations is a step in the right direction…. If implemented, the new Biden asylum policy will incentivize many asylum seekers to become illegal migrants, as that would be their only way to find relative safety and opportunity in the US.
The new asylum policy is certain to be challenged in court (the ACLU has already indicated it plans to sue), and it may well be struck down, as was a similar Trump policy invalidated in 2019. I won't try to address the legal issues here. But I believe there's a strong argument that Biden's policy, like Trump's before it, violates both statutory law and international treaty commitments blocking the US from expelling migrants who qualify under the legal definition of "refugee."
Like Title 42 before it, the new Biden asylum policy—if it survives legal challenges—is also likely to incentivize at least as much illegal migration as it deters. Just as Prohibition expanded the size of the illegal market in alcoholic beverages, so restrictions on legal migration increase the illegal kind. It's possible, however, that new Biden policies expanding legal pathways will offset this effect of the asylum policy.
Overall, Biden's immigration policies have been a significant improvement over Trump's and in some ways over previous Democratic presidents. But that should not excuse abuses such as his prolonged continuation of the Title 42 expulsions and the new asylum policy.
Finally, it's worth noting that the public debate over asylum policy ignores the fact that even the most generous possible version of current policy is constrained by very narrow criteria for eligibility that exclude many migrants fleeing horrific violence and oppression. That problem deserves much greater attention.