Title 42 Isn’t Going Anywhere, but Why Are Republicans Helping Biden?

By Mark Krikorian on April 21, 2022

Early this month the administration announced it would lift the Title 42 order (a pandemic measure allowing the immediate expulsion of illegal border-jumpers, without hearings, to limit the spread of Covid) on May 23.

It ain’t gonna happen, at least not that soon.

Trump issued the Title 42 order early in the pandemic when it made sense. Biden railed against it on the campaign trail but kept it partly in place (applying it almost exclusively to single adult illegals) thinking it would help keep the border down to a dull roar while his administration put up the “guardrails” he’d promised to prevent a mass rush for the border as he rolled back Trump’s other immigration policies.

Some guardrails. As anyone with sense could have predicted, the situation at the border has spun out of control since Biden’s “La Invitación” to illegal aliens. Arrests (sorry, “encounters”) at the Southwest border exceeded 200,000 last month and the total number of illegal border-crossers (including “unaccompanied” “minors”) released into the U.S. by this administration has reached 1 million.

It’s against this background that the administration’s announcement that it would lift the Title 42 order caused consternation, both among border law enforcement and Democratic politicians. DHS is preparing for a rush of as many as 18,000 illegal border-jumpers a day, well over double the current unsustainable rate, and 18 times more than the 1,000 a day that Obama’s DHS secretary, Jeh Johnson, said signified a “bad day” for the border during his tenure. One Border Patrol agent in South Texas I spoke with recently chuckled in bemused despair when I asked what he expected was going to happen when Title 42 was lifted, given that in March about half the illegals “encountered” by the Border Patrol were expelled under Title 42.

We’re talking Lucy in the chocolate factory.

More important for the White House, congressional Democrats have started to panic. Vulnerable New Hampshire Democrat senator Maggie Hassan rushed to do a border tour, complete with a video in front of the wall, calling for gaps in the “physical barrier” to be filled and a delay in the lifting of Title 42. Other Democratic Senators fearing defeat in November, including Kelly, Warnock, and Cortez Masto, also demanded delay, and have even signed on to bipartisan legislation to keep Title 42 in place.

Michigan’s Senator Gary Peters, head of the Democrats’ Senate campaign committee, recognizes that the consequences of lifting Title 42 could be an extinction-level event for the cause of mass immigration and, perhaps more to the point, for the Democratic Party; so he has likewise called for delaying the end of Title 42.

That’s why, less than three weeks after announcing the coming end of Title 42, the White House is now considering delay. I’m willing to bet a car payment that the CDC will discover new variants over the next month (is there a Pi Variant yet? Rho? Psi?) and that Title 42 expulsions are still going to be conducted on May 24.

But why are Republicans playing along, joining the Democrats in trying to save the Biden administration from the logic of its nutty immigration policies?

While Title 42 could be defended at the beginning of the pandemic, along with lockdowns and mask mandates and the rest, there’s no longer a public-health justification for keeping it in place. And the Biden White House has never even pretended to support it for public-health reasons, but instead openly uses it as a crutch to avoid actually enforcing actual immigration law.

Now, I’d be all for a law — the old-fashioned kind, enacted by Congress — that made something like Title 42, untethered to public-health concerns, permanent. No third-country national passing through Mexico should be permitted even to apply for asylum, whether it’s flu season or not. His very presence at the U.S. border means he’s forum-shopping, as it were, having declined to make asylum claims at the many countries along the way where he can’t even pretend to have been persecuted.

But that’s not the state of the law currently. Title 42 is specifically for public-health emergencies, and the ACLU and its comrades are understandably suing to end it. But at the same time, 21 Republican state attorneys general are suing to keep it in place. I understand their concern, but this is a case of “worse is better.” Denial of the Title 42 crutch would force the administration either to own the results of its immigration radicalism, or abandon it. Only that way can we ever address the “root cause” of the border crisis, which is located in the White House.

The Democratic Party establishment has become alarmingly radical on immigration in recent years, even before Trump. Continuing Republican support for Title 42 merely helps the Biden administration hide that radicalism from voters. The Republicans’ goal should not be muddling through on immigration, in hopes that today’s historic disaster at the border doesn’t turn into tomorrow’s biblical mega-disaster. Instead, what’s needed is political clarity, in order to either force a reversal of Biden’s radical approach to immigration, or expose it and let the voters render their judgment.