Outside the Beltway

CDC Rescinds Title 42, Democrats Panic

Two April Fool's Day orders are no joke. And they're apparently causing confusion.

James Joyner · Saturday, April 2, 2022 · 4 comments

CDC: “CDC Public Health Determination and Termination of Title 42 Order” in full:

Today, following a thorough reassessment, the CDC Director is issuing a Public Health Determination and terminating an Order under 42 U.S.C. §§ 265, 268 and 42 C.F.R. § 71.40 (i.e., “Title 42”), suspending the right to introduce migrants into the United States. In consultation with the Department of Homeland Security (DHS), this termination will be implemented on May 23, 2022, to enable DHS time to implement appropriate COVID-19 mitigation protocols, such as scaling up a program to provide COVID-19 vaccinations to migrants and prepare for resumption of regular migration under Title 8.

After considering current public health conditions and an increased availability of tools to fight COVID-19 (such as highly effective vaccines and therapeutics), the CDC Director has determined that an Order suspending the right to introduce migrants into the United States is no longer necessary.

With CDC’s assistance and guidance, DHS has and will implement additional COVID-19 mitigation procedures. These measures, along with the current public health landscape where 97.1% of the U.S. population lives in a county identified as having “low” COVID-19 Community Level, will sufficiently mitigate the COVID-19 risk for U.S. communities.

DHS: “Statement by Secretary Mayorkas on CDC’s Title 42 Order Termination” in full:

Secretary of Homeland Security Alejandro N. Mayorkas released the following statement in response to the Centers for Disease Control and Prevention’s (CDC) determination that it will, effective May 23, 2022, terminate its Title 42 public health Order. Pursuant to its Title 42 authority, the CDC has, since March 2020, required the expulsion of unauthorized single adults and family units arriving at the land borders in order to protect against the spread of COVID-19.    

“Title 42 is not an immigration authority, but rather a public health authority used by the Centers for Disease Control and Prevention to protect against the spread of communicable disease. Title 42 remains in place until May 23 and, until then, DHS will continue to expel single adults and families encountered at the Southwest border. 

“Once the Title 42 Order is no longer in place, DHS will process individuals encountered at the border pursuant to Title 8, which is the standard procedure we use to place individuals in removal proceedings. Nonetheless, we know that smugglers will spread misinformation to take advantage of vulnerable migrants. Let me be clear: those unable to establish a legal basis to remain in the United States will be removed.  

“We have put in place a comprehensive, whole-of-government strategy to manage any potential increase in the number of migrants encountered at our border. We are increasing our capacity to process new arrivals, evaluate asylum requests, and quickly remove those who do not qualify for protection. We will increase personnel and resources as needed and have already redeployed more than 600 law enforcement officers to the border. We are referring smugglers and certain border crossers for criminal prosecution. Over the next two months, we are putting in place additional, appropriate COVID-19 protocols, including ramping up our vaccination program.  

“The root causes fueling irregular migration predate today’s announcement, and we have experienced increases in migration over the past decade and long before. DHS is always preparing for the ebb and flow of migration patterns. We will continue to work with countries throughout the Western Hemisphere to offer safe and legal pathways for migrants seeking protection or resettlement, streamline repatriations, address root causes, and take enforcement actions against the smuggling networks that entice migrants to take the dangerous and often deadly journey to our land borders.  

“The Biden-Harris Administration is committed to pursuing every avenue within our authority to secure our borders, enforce our laws, and stay true to our values. Yet a long-term solution can only come from comprehensive legislation that brings lasting reform to a fundamentally broken system.” 

That would seem to be clear enough: the COVID emergency order that applied to the border is going to be rescinded based on the current state of the pandemic but we’re still planning to enforce our immigration laws. Alas, apparently not.

NPR (“The U.S. is ending its pandemic border rules. It could mean a surge in migration“):

The Biden administration is moving to end sweeping pandemic border restrictions known as Title 42 on May 23. The official announcement came Friday in an order from the Centers for Disease Control and Prevention.

The spread of COVID-19 by migrants apprehended at the U.S.-Mexico border has “ceased to be a serious danger to the public health,” CDC Director Rochelle Walensky wrote.

Since March 2020, the U.S. Department of Homeland Security has used the controversial public health order to quickly expel migrants at the border due to health concerns related to the coronavirus pandemic.

The Biden administration has largely continued this Trump-era policy despite criticism from immigrant advocates, who say the policy puts migrants in danger by forcing them to go to places like Haiti and Mexican border towns.

[…]

Many expect that lifting Title 42 will propel even more people to try to cross the border. With that restriction gone, smugglers and cartels in Central America will likely tell migrants it means that the border is open.

In a letter to DHS last week, a group of Republican senators, led by Florida’s Rick Scott, asked about the agency’s preparations for “the anticipated surge of illegal border crossings.” They said Title 42 had been “an effective deterrent” to such crossings.

DHS Secretary Alejandro Mayorkas has repeatedly said that Title 42 is a public health measure, not an immigration policy.

The Hill (“Manchin: Biden’s repeal of Title 42 order ‘a frightening decision’“):

Sen. Joe Manchin (D-W.Va.) on Friday slammed President Biden‘s decision to rescind Title 42, a Trump-era health order used to rapidly deport people who cross the border without authorization, as “a frightening decision” that would likely increase the volume of migrants at the southern border.  

“Today’s announcement by the CDC [Centers for Disease Control and Prevention] and the Biden Administration is a frightening decision,” Manchin said in a statement after Biden’s announcement.   

“Title 42 has been an essential tool in combatting the spread of COVID-19 and controlling the influx of migrants at our southern border. We are already facing an unprecedented increase in migrants this year, and that will only get worse if the Administration ends the Title 42 policy,” Manchin warned. 

His office noted that U.S. Customs and Border Protection announced a record 1.7 million migrant encounters at the U.S.-Mexico border in 2021, a number four times higher than what was reported in 2020.  

Border officials expect to break that record in 2022 — Border Patrol officers had 838,000 migrant encounters at the southern border during the first three months of the year.  

“We are nowhere near prepared to deal with that influx. Until we have comprehensive, bipartisan immigration reform that commits to securing our borders and providing a pathway to citizenship for qualified immigrants, Title 42 must stay in place,” he said.  

Fellow centrist Sen. Kyrsten Sinema (D-Ariz.) joined Manchin in pushing back against the administration, warning it would “risk the health and safety” of her constituents.  

“Prematurely ending Title 42 without a comprehensive, workable plan would put at risk the health and safety of Arizona communities and migrants. Today’s decision to announce an end to Title 42 despite not yet having a comprehensive plan ready shows a lack of understanding about the crisis at our border,” she said in a statement.  

She was supported by Sen. Mark Kelly (D-Ariz.), a top GOP target in November’s midterm elections.   

“This is the wrong decision. It’s unacceptable to end Title 42 without a plan and coordination in place to ensure a secure, orderly, and humane process at the border,” Kelly said in a joint statement with Sinema.  

“From my numerous visits to the southern border and conversations with Arizona’s law enforcement, community leaders, mayors, and non-profits, it’s clear that this administration’s lack of a plan to deal with this crisis will further strain our border communities,” he added. 

Sen. Maggie Hassan (D-N.H.), who is facing a competitive reelection race this fall, also criticized the administration’s decision.  

“Ending Title 42 prematurely will likely lead to a migrant surge that the administration does not appear to be ready for,” she tweeted on Friday.  

“I’ll keep pushing the administration to strengthen border security & look forward to hearing directly from border agents during my upcoming trip to the border,” she said.  

Biden‘s decision to repeal Title 42 comes after more than a year of pressure from immigrant advocate groups that argued it improperly used health concerns about the spread of COVID-19 to deny migrants due process and asylum rights.  

The rollout of this is rather strange, with dueling releases coming from different agencies, rather than a single announcement from the administration outlining the policy. To the extent that the state of the pandemic no longer justifies an emergency order at the border, rescinding the policy makes sense. If President Biden plans to use this to radically increase the number of people granted asylum—which I would be inclined to support but would want to hear more about before deciding—he should say so. Otherwise, though, I assume we’ll go back to something quite like the standard immigration policy we had in place toward the end of the Obama administration.