The Title 42 Fight Is Proof Congress Would Rather Turn to Lawlessness Than Actually Make Policy

Rather than fix the immigration system, lawmakers seek to extend emergency measures indefinitely while Republicans use the issue for political theater. Title 42 is a provision of the United States federal code containing a World War II-era public-health law that, when invoked, allows border officials to promptly deport people arriving from countries where a contagious disease is raging. When the Covid-19 pandemic hit the U.S. in March 2020, the Trump administration invoked the provision despite some reported opposition within the Centers for Disease Control. Our normal legal regime for people who arrive at the border—including interviewing asylum-seekers to assess their claims around how much danger they face back home—went out the window. While advocates for immigrant rights have said the rule has been abused, and Trump clearly had interest in it as a method of instituting a sweeping crackdown at the southern border, he at least had a legitimate claim to invoke it during the pandemic crisis. Now, though, the United States has come to the consensus that our state-of-emergency posture in response to the pandemic should end, and we should roll back our related legal restrictions. The Biden administration, which has extended the use of Title 42, has also lost multiple cases in federal court over it, and so has decided to phase the policy out in late May, returning to the legal regime that governed our border enforcement prior to March 2020. Except Congress is in revolt against this move. Well, Republicans and some Democrats in the Senate, anyway. Are they concerned that we're rolling this back too fast because COVID-19 is still too serious a threat? They say so, at least in part: "With encounters along our southern border surging and the highly-transmissible Omicron BA.2 subvariant emerging as the [dominant] strain in the United States, now is not the time to throw caution to the wind," Senator Joe Manchin said in a letter to the Centers for Disease Control on Tuesday. xcept Manchin and the others do not support continuing COVID restrictions in other areas, and some are fairly explicit that this is about fearing a surge of migrants arriving. (Left unsaid: that it's a midterm election year). Senator Maggie Hassan, Democrat of New Hampshire, said the Biden administration "does not appear to be ready" for such a surge. Those two, plus Mark Kelly and Kyrsten Sinema of Arizona and Jon Tester of Montana, have joined Republicans in attempting to insert a provision constructing procedural hurdles for ending Title 42 in the proposed bill funding COVID-19 funding bill now making its way through Congress. That bill earmarks $10 billion for vaccines, tests, and therapeutic treatments. In fairness, one hurdle they wish to construct would mandate the Biden administration first end the federal Covid-19 public-health emergency declaration before rolling back Title 42. Other proposals from this crew make less sense. But regardless, even if you believe the situation at the border is out of control, the fact is that this is a lawless approach to fixing it. You can't extend an emergency provision indefinitely—while rolling back our emergency response policies most everywhere else in our society—to essentially erase asylum rights. If Congress believes that the way we process asylum-seekers and other immigrants does not work and must be changed, Congress should pass a law properly reforming the system, not adapt the strategies of disaster capitalism to our immigration law regime. If you're concerned that a large number—as much as 40 percent—of migrants are now hailing from outside Mexico, Honduras, Guatemala, and El Salvador (countries we've struck agreements with allowing for swifter deportations), then make a law addressing that. You're Congress. But that would require genuine interest from members of Congress, particularly Republicans, in actually addressing the issue. We know that is not there based on the failed attempts at comprehensive immigration reform in the Obama years, torpedoed by the Republican right wing. That was followed by the Trump years, where the situation was thrown in sharp relief: that administration did not just oppose illegal immigration, they restricted legal immigration, too. A responsible political culture would address the large influx of people attempting to come here extralegally by creating a clear, orderly, and fair process for people to come legally. They could honor the most essential thread of the American story while beefing up the security of our immigration and naturalization process. But we do not have a responsible political culture. We have a culture where Ted Cruz is a highly prominent American politico—"legislator" would be a misnomer—and he works hand-in-hand with the reckless governor of Texas to turn immigration debates into theatrical performances for The Base: It's not so much that Cruz and Greg Abbott believe there aren't already immigrants—documented and not—in liberal enclaves. They may not even think The Base believes that. What The Base demands is this kind of ritual combat, of grand gestures communicating that The Enemies are getting theirs. Anything that needles, bothers, sticks it to Them is championed and cheered. That's how you get this piece of theater—not unlike the various Republican governors loudly announcing they'd send their own National Guard troops to the border—where the Texas authorities will send immigrants to places where there are already plenty of immigrants. That's not to say this pantomime politics doesn't have real consequences, though. It makes real policymaking by Congress, policy that will bridge presidential administrations and offer a stable vision of what it involves to become an American, impossible. And it will immiserate countless people who just want a shot at a better life, just like the ancestors of Ted Cruz and Greg Abbott and Joe Manchin and Jack Holmes, whose Irish forebears came here in the hull of a coffin ship and didn't exactly have their papers in order. That's not to say our system should be as laissez-faire as it was in the mid-19th century. But as it stands, we are filling gaps in the law with still more lawlessness, all because the current legal limbo allows some of the worst powerful people in our society to bash the powerless for their own political gain with complete impunity. As usual, no one is interested in taking any sort of political hit to do the right thing, and the strategy among the most militant is to stop government from working then attack the people trying to make the government work as somewhere between naive and evil—the feckless and all-powerful enemies within. That's not dangerous at all. Visit us for more information at: http://www.beverlyhillsimmigrationlaw.com/index.html