Tester, Manchin, and Sinema Face Blame for Any Post-Title 42 Chaos

Biden’s appeal of court order wouldn't have been needed if just one of them voted in August for a Title 42 amendment

By Andrew R. Arthur on December 9, 2022

CDC orders directing the expulsion of illegal entrants, issued pursuant to Title 42 of the U.S. Code in response to the Covid-19 pandemic, are currently scheduled to end by court order on December 21, at which point DHS expects up to 18,000 migrants to enter illegally every day. The administration is making an 11th hour bid to continue Title 42, but if it ends — and the expected chaos ensues — key Democratic senators, including Jon Tester (Mont.), Joe Manchin (W.Va.), and Kirsten Sinema (Ariz.) as well as others will be to blame.

Title 42. With a global Covid-19 pandemic looming, CDC issued its first Title 42 expulsion order on March 20, 2020, which it followed up with similar orders in April, May, and October of that year.

Those Title 42 orders are not immigration- or border-related per se, but rather are health orders, intended to curb the introduction and spread of the novel coronavirus into and throughout the United States.

The purpose of those orders is two-fold: To prevent foreign nationals with Covid-19 from entering illegally and spreading the disease throughout the country, and to prevent illegal migrants from being held in “congregate settings” (like Border Patrol processing centers) where they could infect other aliens and U.S. government officers.

While Biden quickly reversed most of the policies that the Trump administration had implemented that had allowed DHS to gain control of the border, he left those Title 42 orders in place, at least in part and at least for a while.

“In part” because the Biden administration exempted unaccompanied alien children (UACs) from expulsion under Title 42, first by practice and then by an amendment to the CDC’s Title 42 order, though that exemption was challenged by state plaintiffs in Texas.

Also “in part” because the Biden administration enforced those “mandatory” Title 42 expulsion orders more sparingly than Trump had.

More than 87 percent of illegal entrants at the Southwest border who were subject to Title 42 were expelled under Trump, but only about 58 percent of the nearly 1.375 million aliens apprehended by Border Patrol at the U.S.-Mexico line between February and September 2021 were expelled under Title 42. Expulsions declined even more in FY 2022, when fewer than 48 percent of the more than 2.2 million illegal migrants apprehended at the Southwest border were expelled under Title 42.

“At least for a while” because on April 6, 2022, the administration published a notice in the Federal Register that it would be terminating Title 42, effective May 23. That was challenged by state plaintiffs, and on May 20, Judge Robert Summerhays of the U.S. District Court for the Western District of Louisiana enjoined CDC’s attempts to end Title 42.

The day Judge Summerhays issued that order, the administration filed an appeal of the court’s order with the Fifth Circuit, which is currently pending.

Judge Sullivan and DOJ’s Notice of Appeal. In the interim, however, the administration has continued to expel illegal migrants under Title 42, albeit at increasingly lower rates. In October, for example, just 37.4 percent of aliens apprehended by Border Patrol at the Southwest border (76,402 out of more than 204,000) were expelled under the CDC orders.

It was in that context, on November 17, that Judge Emmet Sullivan of the U.S. District Court for the District of Columbia (USDC) issued an order in Huisha-Huisha v. Mayorkas, vacating and enjoining Title 42. He later made that order effective on December 21.

That appeared to be the end of Title 42, until December 7, when DOJ notified the USDC that it would be appealing Judge Sullivan’s order to the U.S. Court of Appeals for the District of Columbia (D.C. Circuit).

In a companion notice, DOJ advised the USDC that as soon as it could docket its appeal with the D.C. Circuit, it would be asking the circuit court to hold the case in abeyance until the Fifth Circuit decides the administration’s appeal of Judge Summerhays’ order and until CDC can issue a new regulation implementing Title 42 (which was at issue before Judge Sullivan).

If the D.C. Circuit grants that request (which is a big “if”), Title 42 will continue, at least unless and until the Fifth Circuit vacates Judge Summerhays’ order. That said, if the Fifth Circuit were to vacate his order, Title 42 would end.

None of This Would Have Been Necessary. Note, however, that none of this would have been necessary had any one of several Democratic senators — including Tester, Manchin, and Sinema, or Sens. Cortez-Masto (Nev.), Mark Kelly (Ariz.), Maggie Hassan (N.H.), or Raphael Warnock (Ga.) — voted for an August 6 amendment offered by Sen. Jim Lankford (R-Okla.) on that would have extended Title 42.

Lankford offered that as an amendment to H.R. 5376, the “Inflation Reduction Act of 2022”, which as I have explained previously lavishes hundreds of billions of dollars on climate-related causes and funds 87,000 new IRS employees.

H.R. 5376 was presented as a “reconciliation” bill, which gave it special treatment in the Senate. Usually (and I will spare you the details), bills must receive 60 votes in the Senate to pass, but reconciliation bills — and amendments thereto that are found to be “in order” under Senate rules — can be passed with a simple 51-vote majority.

Lankford’s amendment, which was found to be in order, would have funded an extension of Title 42 until 120 days after the expiration of the termination of the Covid-19 public health emergency declaration. The first such declaration was issued on January 31, 2020, and there have been 10 others without break since then, the most recent issued on October 13 (which remains in effect).

Lankford explained:

Title 42 authority is the last line of defense that our Border Patrol agents have to protect our Nation, and my Democratic colleagues said they agreed with that idea back in April. The situation has only worsened since that time so surely they will agree with me more today.

His Democratic colleagues did not agree with him, however, and his amendment failed on a party-line vote, 50 to 50.

In other words, had Tester, Sinema, Manchin, Cortez-Masto, Kelly, Hassan, or Warnock — or any other Democratic senator for that matter — voted for the Lankford amendment, it would have passed, and given Democrats’ enthusiasm for H.R. 5376, would have become law.

To provide the Democrats with cover, however, Tester immediately offered a separate amendment, which was almost identical except that it did not contain the funding element that was necessary for the Lankford amendment to be found in order.

Absent that funding element, the Tester amendment was subject to a point of order by Sen. Richard Durbin (D-Ill.), triggering an up or down vote that would have required 60 senators’ agreement to have been accepted.

Every Republican senator voted to accept the Tester amendment, as did six Democrats: Tester, Sinema, Cortez-Masto, Hassan, Kelly, and Warnock — the latter four in seemingly tight reelection bids.

Fifty-six is four less than 60, so the Tester amendment failed, as Lankford had anticipated, explaining before the vote on the Tester amendment: “This is the reason people get so angry at Washington, D.C., because people will say: Oh, I didn't really mean to do that; I meant to do this.” There is some truth to that statement.

Sinema-Tillis. Somewhat ironically, however, Sinema is now offering a quasi-Title 42 migrant expulsion provision, which would remain in effect for one year, as part of a proposal that she is floating with Sen. Thom Tillis (R-N.C.).

A rough outline of that proposal reveals that it would grant amnesty to two million (or more) so-called “DREAMers”, aliens unlawfully present who could prove that they were brought to this country as children and place them on a path to citizenship.

Except for provisions that would authorize a handful of new Border Patrol agents and CBP officers, there is little in that proposal — aside from the quasi-Title 42 provision — that would do much if anything to stop the unabated humanitarian disaster at the Southwest border. In fact, in toto, it would simply make our immigration system worse.

The Border Hangs in the Balance. The future of Title 42 hangs on the D.C. Circuit’s decision whether to hold Judge Sullivan’s order ending Title 42 on December 21 in abeyance. Given that Title 42 is all that stands between the current chaos at the Southwest border and the effective erasure of that border, there is a lot riding on that decision. An 11th-hour race to the courts, however, would not have been necessary had any one of many Democratic senators simply voted to continue Title 42 in August.