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Democrats face tough questions as border saga enters new chapter

The Biden administration is grappling with the political fallout from the end of Title 42, a pandemic-era policy established under the Trump administration that turned most migrants away from the border. I spoke with Zolan Kanno-Youngs and Michael D. Shear, who recently reported on the administration’s divisions on immigration policy.

Our conversation has been edited for length and clarity.

LEAH ASKARINAM: Why don’t you start by telling us a bit about Title 42. Why do we hear so much about it these days?

ZOLAN KANNO-YOUNGS: Title 42 is a public health measure that the Trump administration – and I don’t think it’s talked about enough – tried to put in place before the pandemic in an effort to quickly turn back migrants. We now know it as a border policy that the Biden administration relied on to turn away most asylum seekers.

MICHAEL D. SHEAR: It’s true – I think readers of The Times will recall that President Donald Trump and Stephen Miller, the architect of his immigration agenda, were always looking for ways to limit immigration.

And so they found this provision in the public health code that allowed them to say, “let’s deprive people of the possibility of seeking asylum for public health reasons”, basically to prevent the disease from entering the country. They tried to put this in place before the pandemic and weren’t successful, but when the pandemic came it was a pretty natural thing for them to try to use.

And there were plenty of immigration advocates who believed that while there was clearly a pandemic going on, the real intentions behind the Trump administration’s establishment were truly darker motives, intended to keep migrants which Trump had so harshly criticized outside the country. , and to use the public health rule as an excuse.

KANNO-YOUNGS: Biden has often campaigned to break away from the Trump administration’s restrictive border policies. It’s a policy he didn’t mention much during the campaign. The administration relied on the policy until this month, when it said it would lift it on May 23.

ASKARINAM: How is it applied? This is not an administrative action, is it?

MOW: Title 42 is a large section of the US Code that includes tens of thousands of pages of federal regulations and statutes. The relevant part of Title 42 is its public health section.

At one point, Congress passed a series of laws that essentially delegate to the director of the Centers for Disease Control and Prevention the ability to restrict entry into the United States when the director of the agency deems that a health emergency public would be made worse by letting people into the country.

Then the rest of the government, including Border Patrol agents, steps in to enforce it. It is a very broad power that has been used very few times.

KANNO-YOUNGS: For example, when I went to the border in 2019, a family of asylum seekers was walking across US soil and Border Patrol agents were basically taking them into custody. The family may be in a detention center for days before finally being released into the country or transferred to Immigration and Customs Enforcement.

With Title 42, the government is essentially turning these people away. Some might be interrogated for a while, and it was debated whether they could make their case for protection, but for the most part they are turned away and returned to the south.

ASKARINAM: You both reported on the lifespan of Title 42, breaking original news that Trump was invoking it and writing about border politics under Trump and Biden. How was it to cover this trajectory?

MOW: It’s been a really interesting arc. If you go back to the beginning, there was a tremendous amount of suspicion as to why the Trump administration was doing this. This was at the very start of the pandemic, and many comparisons have been made to the early days of the Trump administration when it imposed travel bans on people coming from several predominantly Muslim countries.

Fast forward to the middle period, with Biden in power and the pandemic still raging, and there was more debate. A lot of people, including administration officials, looked back at the Title 42 issue and said, “You know what, that’s not crazy.” When you have the Delta variant and the Omicron variant, it’s not crazy to think that some restrictions would keep people out. Obviously, there were dissenters, some who disagreed quite strongly.

And now we’ve come full circle, where the pandemic may be receding a bit and a lot of people are being vaccinated. People are asking again: how do you let in people from other places in the world, but you keep the logic of title 42 and say that we are not going to let in people who cross the border on foot?

KANNO-YOUNGS: Mike, I’m curious what you think about it. Has there been an immigration policy that – if your measure of success is reducing border crossings and turning asylum seekers away – has achieved its goal more effectively than Title 42?

MOW: The problem with Title 42 is that it is the most brutal all-or-nothing policy. Most of the other attempts by the Trump administration were complicated policy changes that involved a lot of legal gibberish.

Title 42 is much more black or white. Generally speaking, it doesn’t say that you have to be this or that type of immigrant or come from this or that country or be afraid of this or not be afraid of that. He just says we’re not going to let anyone in. The Trump administration finally found a method that could not be challenged in court.

KANNO-YOUNGS: Which makes it even more baffling that the Biden administration embraced it. It’s not necessarily surprising that a Democratic administration leans toward deterrence or restraint. But that’s surprising given the brutality of this policy, especially after months of Democrats criticizing the Trump administration for passing policies that have subjected migrants to violence, assaults and kidnappings south of the border.

It’s also worth noting that Title 42’s ability to reduce border crossings has been pushed back. Previously, migrants were detained for an extended period while waiting to seek protection, but using this rule to turn them back quickly had the unintended effect of giving them a greater chance of crossing the border illegally. Many migrants at the border in recent years have been repeat franchisees.

You’re seeing a real momentum here, where it’s not just moderate Democrats, but even someone like Beto O’Rourke, one of the leading critics of the Trump administration’s immigration policies, turning their attention to the Biden administration for a lack of preparation. It’s a political quagmire for Democrats.

ASKARINAM: So what does the history of Title 42 reveal about the challenges that politicians face when it comes to immigration policy?

KANNO-YOUNGS: I think what Title 42 shows, and what Mike and I would hear from our sources, is that we knew what the Trump administration wanted with respect to the border: to deport people, to use maximum deterrence – even if it goes into cruelty – to keep people out of the country.

Although the Trump administration has been very clear about its position, I’m not sure the Democrats know exactly where they stand on the border. Campaigning against Trump’s policies was one thing. It’s a lot more difficult once you’ve gotten into the job and you need to have your own position.

MOW: Yes, I agree with all of that. Title 42 highlights what has been the problem for a long time: it’s not just about finding solutions – which is hard enough – but it’s about defining what you really think is the problem.

Trump and his allies have defined the problem one way. Someone on the Democratic side might define the problem as a lack of ability to quickly provide an asylum seeker with an answer as to whether or not they should be allowed to stay in the United States permanently.

Yet someone else might say we have to decide: do we want to let people in? And if so, let’s see what kind of person deserves to be here. Do we want someone to come to the country fleeing political persecution? Yes. What about someone fleeing gang violence? What about someone fleeing poverty? What about someone fleeing sexual assault?

Until the country really comes to grips with all of this, it’s going to continue to be a mess at the border.

— Leah (Blake is on vacation)

Is there anything you think we’re missing? Something you want to see more? We would love to hear from you. Email us at onpolitics@nytimes.com.

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