Biden Administration: Title 42 Termination “Will Likely Lead to ... a Temporary Increase in Unlawful Border Crossings”

By George Fishman on December 23, 2022

Per the order of Chief Justice John Roberts, Solicitor General Elizabeth Prelogar earlier this week filed the federal government’s “Opposition to the Application for a Stay Pending Certiorari” made by a group of states seeking to prevent execution of U.S. District Court Judge Judge Emmet Sullivan’s termination order for Title 42.

Prelogar, no surprise, argues that the Supreme Court should lift Roberts’ stay (after a few days) and allow our southwest border to descend into a level of chaos bordering on Apocalypse Now. She at least admits that DHS’s mission is to “secure the Nation’s borders”, but that is a mere formality, since to the Biden administration the borders are already secure, thank you.

She also “recognizes that the end of the Title 42 orders will likely lead to disruption and a temporary increase in unlawful border crossings” and that “The government in no way seeks to minimize the seriousness of that problem.” That sort of language is maybe appropriate for an online retailer to break it to a customer that their order will not arrive in time for Christmas, but not really appropriate to describe DHS’s own estimate that illegal border crossings could rise to over 18,000 per day — or six and a half million per year — following the termination of Title 42. As my colleague Andrew Arthur has warned, at such point “the United States will have no borders and will cease being a ‘nation state’ or a nation.”

Prelogar decisively proclaims that these “disruptive consequences ... will require a response”[!]. She then telegraphs to the Supreme Court and the nation what the Biden administration’s response will entail (derived from its puerile "Update on Southwest Border Security and Preparedness Ahead of Court Ordered Lifting of Title 42", which I discussed a few days ago).

I'll let the Solicitor General describe the Biden administration’s “solution”:

  • [R]ely on the immigration laws Congress has prescribed in Title 8. The government is prepared to do that, including by surging resources and invoking its Title 8 authorities to implement new policies in response to the temporary disruption that is likely to occur whenever the Title 42 orders end.

  • DHS [has] begun to bring in a large number of [asylum] officers to assist with credible fear screening in expedited-removal proceedings under Title 8. The government has also had to work ... with local governments and non-governmental organizations in the United States that support noncitizens who are provisionally released pending removal proceedings.

Let me translate the Biden administration’s “solution” into English:

  1. A vast proportion of the 18,000 a day will dubiously claim a "fear of return".
  2. The airdropped asylum officers will find about 90 percent of these claims to be “credible” and the aliens will either be told to show up to immigration court for removal/asylum proceedings in a few years, or (under a new Biden administration regulation) the asylum officers themselves can hand out grants of asylum like drunken sailors, leading to lawful permanent residence and access to federal welfare benefits unavailable even to most other lawful permanent residents.
  3. For those sent to immigration court, DHS will “parole” (release) pretty much of all them into our communities (with eventual work authorization), busing or flying many to desired destinations, despite the Immigration and Nationality Act’s mandate that they be detained.
  4. For those released on parole, many will simply abscond and become fugitives.

The Solicitor General lectures the states that if they “are dissatisfied with the immigration system Congress has prescribed in Title 8, their remedy is to ask Congress to change the law” and that “The public interest requires respect for Congress’s judgment regarding the statutory framework — Title 8 — that should govern to prevent or contain a potential surge in migration at the southern border.” Since I don’t think Prelogar really believes that Title 8 will “prevent” a “potential surge”, what does she mean by “contain”? Well, it’s fair to say that the aliens who will take part in the surge will be happy to be “contained” within the United States.

Prelogar does display a lot of chutzpah. While the Biden administration and the Obama administration before it have certainly asked Congress to change the immigration laws, when they get frustrated by Congress’s failure to capitulate, they simply make the changes they want by administrative fiat, an abuse of power not available to the states. And it is one thing to lecture anyone concerned about the state of the border to show a little “respect for Congress’s judgment” —  it would be another thing entirely for the Biden administration itself to show such respect. It releases en masse illegal aliens whom Congress ordered detained, twists the quite limited parole power into a mechanism to create a shadow immigration law irrespective of that passed by Congress, and is averse to using the congressionally authorized Migrant Protection Protocols, one of the few effective legal tools within Title 8 that DHS could use in place of Title 42. And, of course, the last administration that President Biden was part of created the DACA program out of whole cloth after President Obama’s prior conclusion that he didn’t have the power to do so was ruled politically inexpedient.

As to the Solicitor General’s response to the states’ plea to intervene in the Sullivan case, she at the very same time argues 1) that the states “have long known that the [federal] government’s interests diverge from theirs in precisely the way that [the states] now contend justifies intervention” and 2) that the federal government’s “appeal would adequately represent the [states’] interests” and that the states’ “position on the merits is aligned with the government’s”. I wouldn’t recommend that any law student mash-up those arguments on a final exam.

In case the Supreme Court doesn’t follow through on the promise of Justice Roberts’ stay, let me queue up a song by the Doors. You know, “The End”.