ICE Told to Stand Down in Advance of Post-Title 42 Onslaught

We shouldn't have to choose between criminal aliens on the streets or criminal migrants at the borders

By Andrew R. Arthur on December 14, 2022

On December 12, the Washington Times reported that ICE officers have been directed to limit the number of arrests that they are making, to free up detention beds for an anticipated post-Title 42 onslaught at the Southwest border. The American people — citizens and lawful immigrants alike — should not have to choose between dangerous criminal aliens on their streets or dangerous criminal migrants and terrorists at their borders.

Title 42, in Brief. The phrase “Title 42” refers to a series of orders issued by CDC pursuant to Title 42 of the U.S. Code in response to the Covid-19 pandemic. Those Title 42 orders direct the expulsion of illegal migrants at the borders to stem the introduction and spread of the novel coronavirus.

The first of those orders was issued during the Trump administration on March 20, 2020, when the global pandemic was declared, but CDC has reissued those orders several times thereafter (with amendments and modifications), well into the Biden administration.

Although the Title 42 CDC expulsion orders are mandatory, DHS implemented them much more vigorously under Trump than it has under Biden.

More than 87 percent of illegal Southwest border migrants subject to Title 42 were expelled during the Trump administration, a figure that dropped to around 58 percent between February and September 2021. Expulsions further declined in FY 2022, as fewer than 48 percent of the more than 2.2 million illegal migrants apprehended at the Southwest border last fiscal year were expelled under Title 42.

The Oversized Importance of Title 42. Those Title 42 orders are not immigration- or border-related per se, but rather are health-related. Still, they have taken on oversized importance when it comes to border security under the Biden administration.

In a December 7 article, D.C. newspaper The Hill asserted:

Title 42, crafted in the early days of COVID-19 by the Trump administration, was marketed as a pandemic response policy, but many observers deemed it a transparent attempt to use the pandemic as an excuse to gut the asylum program.

Notably, the journal does not cite any of those “many observers” it references, but I strongly question the premise, for two reasons.

First, Covid-19 was a much-feared and little-understood disease during its early days. Remember “15 days to slow the spread”? That expanded to a year-plus of shutdowns, and as CNBC explained (one year later) that campaign “shows how little we knew about Covid”.

It would have been both reckless and unacceptable to shutter schools and churches in the face of a global contagion while leaving the Southwest border wide open.

Second, Trump didn’t need much help controlling the Southwest border when Title 42 took effect in late March 2020.

Faced with a surge of migrants — the majority of whom were adults travelling with children in family units (FMUs) — during the “border emergency” of FY 2019, the Trump administration implemented a series of policies to deter migrants from entering the United States illegally.

The most successful were the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”. Under MPP, non-Mexican aliens — including those in FMUs — apprehended entering illegally at the Southwest border were sent back to Mexico to await their removal hearings.

As DHS determined in its October 2019 assessment of the program, MPP was “an indispensable tool in addressing the ongoing crisis at the southern border and restoring integrity to the immigration system”, particularly as related to alien families. Asylum cases were expedited under the program, and MPP removed incentives for aliens to make weak or bogus claims when apprehended.

The apprehension statistics tell the story: In May 2019, before Remain in Mexico was fully implemented, Border Patrol agents at the Southwest border apprehended more than 144,000 illegal migrants, nearly 84,500 of whom were in FMUs.

By September 2019 — four months later and after full implementation of MPP — apprehensions dropped more than 63 percent (to fewer than 53,000), while FMU apprehensions fell more than 81 percent (to fewer than 16,000).

Apprehensions continued to drop throughout the fall and early winter, never exceeding 36,000 in any given month thereafter before Title 42 was implemented in March 2020.

Remain in Mexico wasn’t Trump’s only successful border policy, but it was the most effective. Consequently, Biden inherited what his first Border Patrol Chief, Rodney Scott, described in a September 2021 letter to Senate leadership as “arguably the most effective border security in” U.S. history.

As Chief Scott noted, however, that security rapidly disintegrated once Biden took control. Then-candidate Joe Biden attacked MPP during his 2020 presidential campaign, and his DHS secretary has attempted to end the program — twice — since Biden took office.

In fact, since April 2021 his administration has been fighting federal litigation brought by state plaintiffs to force DHS to reinstate the eminently effective MPP program — thus far successfully, albeit largely on technical grounds.

This is the same Joe Biden who, a month before taking office, had promised to reverse Trump’s border policies, but who averred he would do so “at a slower pace than he initially promised, to avoid winding up with ‘2 million people on our border’” and only after erecting “guardrails” to prevent a border surge.

That was a hollow vow. Biden quickly dispensed not only with Trump’s policies but also — in a break with every one of his predecessors — any policy of deterring foreign nationals from entering the United States illegally. Worse, DHS attempted — unsuccessfully — to prosecute agents who tried to prevent aliens from entering illegally at Del Rio, Texas, in September 2021.

Consequently, Border Patrol agents have been facing a relentless surge at the Southwest border since Biden took office, setting new yearly records for apprehensions in FY 2021 (when they stopped nearly 1.66 million illegal entrants), and again in FY 2022, when, as noted, apprehensions soared past 2.2 million.

Those agents are so overwhelmed they are now unable to secure the border, as Chief Scott explained.

In FY 2021, an estimated 389,000 “got-aways” — illegal migrants who didn’t want to be caught — evaded agents and successfully made their way into the United States, as did an additional 599,000 in FY 2022. Fox News has reported that there were 137,000 got-aways in just the first two months of FY 2023, including a record number (73,000-plus) in November alone.

Which brings me back to Title 42. Again, it’s not a border policy so much as it is a health order, but as noted it’s the only quasi-border policy implemented by the Trump administration that Biden saw fit to maintain. Thus, it’s the only thing standing between the ongoing chaos at the Southwest border and a total breakdown in border security and erasure of national sovereignty.

DHS has warned that once Title 42 ends, up to 18,000 aliens daily will cross the Southwest border illegally, up from an already unsustainable daily average of 7,686 (both apprehensions and got-aways) in FY 2022.

Despite that dire warning, on April 6 the Biden administration announced it would end Title 42 on May 23. That action was challenged by state plaintiffs, and on May 20, Judge Robert Summerhays of the U.S. District Court for the Western District of Louisiana blocked the administration’s attempt to end Title 42.

The administration appealed but complied with that order (reluctantly), but then, on November 17, Judge Emmet Sullivan of the U.S. District Court for the District of Columbia issued a separate order vacating and enjoining Title 42, in a case brought by migrants and advocates.

That order was supposed to be effective immediately, but Judge Sullivan acceded to an administration request to end Title 42 as of December 21.

The administration has made an 11th-hour bid to maintain Title 42 by appealing Judge Sullivan’s decision to the U.S. Court of Appeals for the District of Columbia, but it’s questionable whether the D.C. Circuit will grant that request.

In any event, as a recent migrant surge in El Paso, Texas, reveals, foreign nationals are already gearing up on the other side of the border for the end of Title 42.

DHS’s Preparations. DHS has begun preparing for the onslaught that will follow once those CDC expulsion orders are no longer in effect.

Back in the spring, the federal government set up the Southwest Border Coordination Center (SBCC), which reporting at the time described as “essentially a war room to coordinate an interagency response”. The purpose of the SBCC was to bring together representatives from the State, Justice, Defense, and Health and Human Services departments to craft a response to the expected surge.

DHS also prepared a euphemistically named “Southwest Border Mass Irregular Migration Contingency Plan” to respond to the human flood of migrants. The parameters of that plan have not been released, but the department will apparently surge resources to the Southwest border from a variety of agencies to care for and process thousands of migrants per day.

Speaking of “resources”, the president has sent a budget request to the Hill seeking billions of dollars for its border response: $2 billion for CBP, $2 billion for ICE, and $820 million for Federal Emergency Management Agency (FEMA) Emergency Food and Shelter — Humanitarian grants.

Some of that money will go to process, detain, and remove illegal entrants, but much of it will be used to release and transport apprehended migrants into the United States — where they will remain indefinitely, if not forever.

Which raises the question of why, as the Washington Times reported, certain ICE officers are being told to curtail their enforcement activities in the United States.

The detention of illegal migrants — a congressional mandate the Biden administration has largely ignored — is key to deterring illegal migration. Simply put, for all foreign nationals who enter the United States illegally to live and work here, detention (like MPP) prevents them from doing so unless and until they are granted asylum. If release is not guaranteed, they are much less likely to arrive.

As noted, however, Biden has eschewed deterrence as a border strategy, which is why in his FY 2023 budget he asked Congress to cut detention funding by about 20 percent and why he has ended FMU detention entirely.

The president now finds himself in a trap of his own making, facing the prospect of a half-million illegal entrants (or more) per month and only around 34,000 detention beds to put them in. Given the choice between not deterring the criminals and terrorists CBP will encounter post-Title 42, or not detaining the serious criminals already present in the United States, he is opting for the former.

I am not saying that’s a high crime and misdemeanor, but it is presidential malpractice and a risk the White House should have known was coming.

The Adults in the Room. Chief Scott described the roots of Biden’s border problem thusly: “Common sense border security recommendations from experienced career professionals are being ignored and stymied by inexperienced political employees”.

It’s unclear who the president is taking his immigration advice from, but it’s well past time that the adults in the room — who understand border security and the dangers an undefended border poses — start calling the shots.

Back in October 2021, former President Obama explained:

Immigration is tough. It always has been because, on the one hand, I think we are naturally a people that wants to help others. And we see tragedy and hardship and families that are desperately trying to get here so that their kids are safe, and they're in some cases fleeing violence or catastrophe. ... At the same time, we're a nation state. We have borders. The idea that we can just have open borders is something that ... as a practical matter, is unsustainable.

The American people — who pay trillions to support the federal government annually — should not have to choose between DHS taking dangerous criminal aliens off their streets or detaining increasing numbers of dangerous criminal migrants and terrorists at their borders. The president’s experiment with open borders must come to an end. It’s “unsustainable” — and dangerous.