The political risks and realities of the end of Title 42, the border policy encouraged by covid

When the pandemic emerged, the Trump administration saw a chance to build a different kind of wall. Using the authority it claimed under Title 42 of the U.S. Code, the government immediately began turning thousands of people back to the southern border instead of allowing them to submit to arbitration or seek relief. ‘asylum. The alleged justification was that the government wanted to reduce the number of people infected with the coronavirus entering the United States, but, during testimony before Congress, an official admitted that this decision was not based on statistics from the time. Instead, the quick withdrawal policy “may have been started for other purposes” – a fair assumption.

As a candidate, Joe Biden campaigned in direct opposition to Trump’s immigration policies. But title 42 was an exception. It persisted, month after month, despite protests from left-wing activists and even despite the resignations of administration officials in protest.

This week, the administration announced it would end the policy. One reason is that the government’s capacity to manage migrants has increased, allowing more people to enter the country to apply for residency. But it seems clear that another reason to do so is that there is no political advantage to keeping the policy — and, perhaps, political harm.

It’s all about numbers. If 200 people sought to emigrate to the United States per month, there would be little political consternation. But when 200,000 do it, things get complicated. And since Biden took office, there have been several months in which that mark has been exceeded, at least in terms of the number of stops made at the US-Mexico border.

It is important to note here that the measure of the number of people entering the United States is necessarily fuzzy. Some people enter the United States illegally and go undetected, which means they are not included in the totals published by the government. But increased border barriers after the legislation was passed in 2006 pushed more migrants to guarded crossing points where they could be stopped. So while the number of people apprehended at the border does not measure every entrant, it does measure many, if not most.

Those monthly numbers — and especially their growth relative to Trump’s presidency — have repeatedly been touted by Biden’s opponents as indicative of border laxity. In January, for example, Rep. Jim Jordan (R-Ohio) slammed the “1.9 million illegal immigrants” apprehended at the border last year. This is inaccurate and misleading for several reasons, as I explained at the time: on the one hand, not all of these arrests were of “illegal immigrants”, and on the other hand, most of those who apprehended were promptly removed under Title 42.

Month by month, you can see the difference between the two administrations under Title 42. When Trump was president, almost all migrants had to be deported quickly. Under Biden, this policy was less strict; children, for example, were allowed to stay. But it was still an important part of the administration’s approach to immigration.

In 2021, only about 300,000 people arrested at the border have been granted humanitarian release in the country pending their immigration hearings to progress – many, but far fewer than Jordan’s boasted 1.9 million.

It is important. The administration has faced a real challenge in managing the increase in migrants, making the removal policy worthwhile. But the fact that most of those arrested at the border were quickly expelled from the country did not lessen concerns about the number of migrants arriving in the United States. Jordan and other administration critics made no distinction between people who have spent little or no time in the United States and those who may be on the path to legal residency. It was all billed as “millions of people surging across the country.”

At the same time, title 42 probably made those numbers worse. The rapid withdrawal process meant that thousands of people every month would be arrested, deported – and tried again, only to be arrested again. The number of arrests was inflated by people arrested more than once, so the government began publishing data on repeat arrests. From June last year to December, more than a quarter of the arrests involved people who had already been arrested once, swelling the number of people arrested during this period from less than a million to more than 1, 3 million – although many of these people have been the same person more than once.

Those considerations were likely important in the administration’s decision-making process, but it’s also likely to respond to months of anger from a sizable portion of the Democratic base. Immigration activists were understandably furious that Biden would continue a policy instituted by Trump that barred people seeking asylum in the United States from being able to do so. Removing the policy is also politically useful simply by mitigating these criticisms. The fact that he won nothing from the right to keep the policy in place makes things easier.

Then, of course, there is the apparent justification for the policy: the pandemic. It has declined but, even before, there was no reason to think that migrants were a significant source of new infections in the United States. The immigrants were blame to spread the virus, yes, but that was rhetoric. The main driver of the surge in new infections in the country remains what it has always been: Americans.

The administration expects to have enough facilities in place to hold enough migrants as needed by May. At this point, he plans to end Title 42 — and with it another of Trump’s strategies to limit migration to the United States.


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