On January 30, the Office of Management and Budget (OMB) announced that the administration plans to extend the Covid-19 national emergency (currently set to expire on March 1) and the coronavirus public health emergency (“PHE”, due to end on April 11) to May 11, and then end both on that date. It’s unclear what effect this action will have on CDC orders directing the expulsion of migrants at the Southwest border, issued pursuant to Title 42 of the U.S. Code in response to the Covid-19 pandemic, because “Title 42” has taken on a life of its own. In any event, Biden’s facing a post-Title 42 border tsunami, and needs to save himself and his party from getting wiped out in 2024.
A Covid-19 Timeline. Covid-19 was initially detected in China in December 2019, and by January 30, 2020, had become enough of a threat to prompt the U.N. World Health Organization (WHO) to declare a “Public Health Emergency of International Concern”.
The next day, then- Health and Human Services Secretary Alex Azar issued a determination under section 319 of the Public Health Service Act that a PHE related to the “2019 Novel Coronavirus (2019-nCoV)” had existed since January 27, due to the presence of confirmed Covid-19 cases in the United States.
PHEs are good for 90 days, and this one has been extended every 90 days since it was initially issued, most recently on January 11 by current HHS Secretary Xavier Becerra.
On March 11, 2020, WHO declared a global Covid-19 pandemic, and in response, on March 13, 2020, President Trump issued Proclamation 9994, “Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak”.
A week later, on March 20, 2020, CDC issued its first Title 42 order, directing the expulsion of illegal entrants crossing the Mexican and Canadian borders and other inadmissible aliens at those borders, and it’s been off to the races since then.
Thanks to the Migrant Protection Protocols (MPP), better known as “Remain in Mexico”, and other Trump border initiatives, CBP had more or less brought the Southwest border under “operational control” by the time the first CDC Title 42 order was issued.
The agency’s 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. Of those apprehended aliens, nearly 84,500 were adults travelling with children in “family units” (FMUs).
It’s particularly difficult for CBP to respond to an influx of FMU entrants, for two reasons. First, Border Patrol facilities were built to accommodate single adult males from Mexico, who can be processed and removed in about eight hours, but not for adults with children, the processing of whom can stretch on for days.
Second, a poorly reasoned 2015 district court order requires DHS to release the children in FMUs within 20 days, and to avoid claims of “family separation”, the department almost always releases the adults as well. Smugglers know that, and encourage would-be migrants to bring a kid along, to ensure release.
With that in mind, consider the fact that in September 2019 — four months after that May FMU surge and once MPP was fully implemented — apprehensions dropped more than 63 percent from that May high (to fewer than 53,000), while FMU apprehensions fell more than 81 percent (to fewer than 16,000).
Border Patrol Southwest border 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.
Things changed, however, in April 2022, when the president announced that Title 42 would end on May 23. That prompted a group of state plaintiffs to file suit in federal court in Louisiana challenging CDC’s attempts to end Title 42 (in a case captioned Louisiana v. CDC). On May 20, Judge Robert Summerhays, the district court judge assigned to Louisiana, enjoined the end of Title 42.
The administration immediately appealed that order to the U.S. Court of Appeals for the Fifth Circuit, but abided by Judge Summerhays’ order — though it has applied Title 42 to fewer and fewer migrants apprehended at the Southwest border since that order was issued.
While Louisiana was playing out, a group of migrants and advocates were arguing in federal district court in the District of Columbia that those Title 42 orders never should have been issued at all, in a case captioned Huisha-Huisha v. Mayorkas.
On November 15, the district court judge hearing Huisha-Huisha, Judge Emmet Sullivan, vacated and enjoined Title 42 in its entirety.
Judge Sullivan had wanted his order to take effect immediately, but the next day he acceded to DOJ’s request to extend the end of Title 42 to December 20, to allow DHS to prepare for an expected onslaught of migrants post-Title 42, though he only did so, as he put it, “WITH GREAT RELUCTANCE”.
On November 20, the state plaintiffs in Louisiana filed a motion to intervene in Huisha-Huisha to protect their interests (the administration later filed a motion to appeal Judge Sullivan’s order, but did not seek a further stay). On December 16, the U.S. Court of Appeals for the District of Columbia (D.C. Circuit) denied the state plaintiffs’ motion to intervene.
Somewhat expectedly, the states then turned to Chief Justice John Roberts (the circuit justice for the D.C. Circuit), filing an emergency application for a stay pending certiorari (Supreme Court review) of the D.C. Circuit order on December 19.
The chief justice granted that stay the same day to give his fellow justices the opportunity to consider the states’ arguments. That matter is now captioned Arizona v. Mayorkas because the question before the Court is not whether Title 42 should be continued, but whether the states should be allowed to intervene to seek its continuance.
January 30 Statement of Administration Policy. Which brings me back to the January 30 “Statement of Administration Policy”, which was formally issued by OMB.
That statement was purportedly issued in response to two pending pieces of legislation in the House of Representatives: H.R. 382, the “Pandemic is Over Act”, which would terminate Azar’s Covid-19-related PHE; and H.J. Res. 7, a joint resolution that would terminate Trump’s Proclamation 9994.
Note that each of these pieces of legislation would have to pass both houses of Congress and be signed by the president to take effect, so even in the unlikely event that either made it through the Republican-controlled House and then garnered the 60 votes required in the Democratic-controlled Senate, Biden could effectively block them.
In fact, he has expressed a willingness to do so, as the January 30 OMB statement makes clear: “The Administration strongly opposes enactment of H.R. 382 and H.J. Res. 7, which would be a grave disservice to the American people”. That strongly suggests Biden’s not planning on going along.
Nonetheless, OMB contends that “ending these emergency declarations in the manner contemplated by H.R. 382 and H.J. Res. 7 would have two highly significant impacts on our nation’s health system and government operations”.
Most of those impacts have to do with Medicaid funding extensions, and I leave it to experts in that area to weigh in on the strength of those claims. With respect to Title 42, however, OMB asserts that if H.R. 382 were enacted, it “would lift Title 42 immediately, and result in a substantial additional inflow of migrants at the Southwest border”.
OMB then disclaims any responsibility for the ensuring chaos:
The Administration supports an orderly, predictable wind-down of Title 42, with sufficient time to put alternative policies in place. But if H.R. 382 becomes law and the Title 42 restrictions end precipitously, Congress will effectively be requiring the Administration to allow thousands of migrants per day into the country immediately without the necessary policies in place.
There’s a lot to unpack there.
“Biden’s Border Fiasco”. With due respect to OMB, neither H.R. 382 nor its sponsors would bear the blame for the thousands of migrants who will pour into the United States per day once Title 42 ends. That blame starts and ends at the White House.
In one of his first acts as president, Biden suspended Remain in Mexico, an action that prompted the states of Texas and Missouri in April 2021 to file suit in federal district court in Texas to force DHS to continue that Trump-era policy, in a case captioned Texas v. Biden.
Even while Texas was pending consideration, DHS Secretary Alejandro Mayorkas formally terminated MPP on June 1, 2021. The district court judge hearing Texas, Matthew Kacsmaryk, enjoined DHS from terminating the program in August 2021, and effectively forced the administration to continue returning migrants to Mexico under the program.
The administration appealed that decision to the Fifth Circuit, but days before the three-judge panel was supposed to consider that appeal, Mayorkas terminated MPP again, on October 29.
That didn’t sit well with the Fifth Circuit, which ignored the second termination and affirmed Judge Kacsmaryk’s injunction in December 2021.
The administration asked the Supreme Court to review that decision, and in June, the justices ruled that Judge Kacsmaryk lacked authority to enjoin Mayorkas’ actions, sending Texas back to the lower courts (on largely technical grounds) to consider the second MPP termination.
In December, Judge Kacsmaryk vacated the second Mayorkas memo terminating MPP.
All of this matters because, in its October 2019 assessment of MPP, DHS determined that it 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.
Nonetheless, Biden quickly terminated not only Remain in Mexico, but every other Trump initiative that had brought operational control to the Southwest border.
Worse, however, he broke a pre-inauguration vow to terminate those programs “at a slower pace than he initially promised, to avoid winding up with '2 million people on our border’”, and only after “’setting up the guardrails’ to find a solution to the immigration issue”.
Not only were there no guardrails to prevent millions of illegal migrants from crossing illegally, but in a break from every one of his predecessors, Biden has expressly rejected any policy that would deter those migrants from coming here to begin with. Why? To ensure that any alien who shows up illegally can apply for asylum — which expulsion under Title 42 prevents them from doing.
That’s the reason why, suddenly, large numbers of migrants from as far away as Afghanistan, Nepal, and Sri Lanka are making their way to the Southwest border of the United States. Mexico must agree to take expelled third-country migrants back, and it refuses to take most who aren’t from El Salvador, Guatemala, or Honduras — so all those other migrants are coming knowing they’ll be here indefinitely, if not forever.
The Administration’s Post-Title 42 Plans. As for the administration’s efforts to prepare for that post-Title 42 onslaught, Biden was wholly unready when it looked like Title 42 would end in late December, and his latest proposal to respond to that surge consists of little more than an attempt to bribe Venezuelans, Nicaraguans, Haitians, and Cubans from entering illegally by offering to usher them into the United States (illegally) through the side door.
OMB can attempt to deflect blame for the humanitarian disaster that will follow in the wake of the end of Title 42 on the sponsors of H.R. 382 and H.J. Res. 7, but the White House knows that this feint is disingenuous at best. Not that it won’t fool gullible reporters or so-called “experts”, many of whom oppose border enforcement to begin with.
What Happens Next? Fortunately, from the perspective of those who don’t share such views, it’s not clear that Biden’s efforts to end the Covid-19 Public Health Emergency and rescind Proclamation 9994 on May 11 will affect the continued vitality of CDC’s Title 42 expulsion orders.
The Supreme Court’s stay of the termination of Title 42 will remain in effect until it issues an opinion in Arizona, and if past is prologue, it won’t be in any hurry to do so (its MPP decision in Texas was issued on the last day of the Court’s 2021 term).
That stay could well remain in place if the Court decides that the D.C. Circuit erred in denying the states the opportunity to intervene in Huisha-Huisha, and if that happens, reconsideration along the lines of any Supreme Court opinion could take a while, as would the appeal itself.
That said, I have no idea what the justices will do — particularly given the fact that four of them asserted they wouldn’t have considered Arizona on certiorari — and the D.C. Circuit is always a wild card.
That means that either the White House will have to get serious about border enforcement in the interim, or Congress will have to use “the power of the purse” to restrict executive branch spending to force Biden to change course on how he deals with illegal migrants.
The former may not be as unlikely as you might think. A recent Gallup poll asked respondents what they thought was “the most important problem facing this country today”. In response, 21 percent said the “government”, 15 percent responded “inflation”, and 11 percent said “immigration”.
When asked that question in a poll Gallup conducted in late November into December, however, just 8 percent of respondents said immigration was the biggest problem, putting it in fourth place after the “economy in general” at 16 percent.
That earlier poll was conducted before respondents saw the administration scrambling around just before Christmas to deal with a surge of migrants who had jumped the gun on the end of Title 42. I have no doubt that the administration’s feckless response then was the reason why immigration is surging as an issue now.
Biden’s facing a migrant tsunami post-Title 42, which will hit just as the 2024 presidential election season heats up. If he wants to save himself and his party, he’ll need a real border course direction, not some self-serving and tendentious “statement” from OMB. And if he not willing to bring control to the Southwest border, there are plenty of Republicans in the House willing to force him to try.