President Biden is forced to end Title 42, Congress is forced to tell him what to do next

A Border Patrol helicopter searches for immigrants who illegally crossed the border from Mexico into the United States in the Rio Grande Valley area near McAllen, Texas, April 2, 2018. (Loren Elliott/Reuters)

Zach reports that:

The Biden administration will end the Title 42 public health order that allows border agents to immediately deport illegal border crossers, according to multiple reports.

The order was originally issued under the Trump administration at the start of the Covid pandemic, and renewed by the Biden administration in August 2021.

Legally, that’s the right call. Title 42 of the Public Health Services Act of 1944 grants the President no permanent powers; rather, it is an emergency measure that allows the executive branch to take action against “the introduction of communicable diseases” from foreign countries. The Trump administration and the Biden administration have proposed that the provision was activated by the existence of COVID-19, and that when applied to contemporary immigration law, it has allowed the federal government to deport foreigners who cross the border illegally without treating them under regular rules. order or examining their asylum applications. Naturally, this claim has been disputed. But we don’t actually need to reach its merits to understand that, without there being an underlying “communicable disease” to prevent, Title 42 cannot come into play. at all. Why is President Biden rescinding the order? Because the order relied for its legitimacy on a set of circumstances which, fortunately, no longer exist for good.

Critics of the move worry about the effect the loss of Title 42 as a tool will have on illegal immigration. Here’s ABC News describing the most likely outcome:

The Department of Homeland Security is preparing to accommodate up to 18,000 migrants a day at the southern border if Title 42 is revoked, according to senior DHS officials who briefed reporters on Tuesday.

. . .

Officials said they had gone through three scenarios and the highest number of migrants crossing the border per day was 18,000. They stressed that this was only a prediction and that they were ready for anything . DHS has also established a joint information center with officials from across the federal government.

This concern is justified. In fact, I share it myself. But that Title 42 has proven to be a useful weapon against illegal immigration does not mean that it can be kept outside its legal framework. It is not possible. Our presidents are not dictators, and they are not allowed to wade through the law books to find workarounds. If Congress wishes to give the executive more power to deal with illegal immigration – and it is absolutely should want to do it – then he should be busy doing it.

Fox News reports that:

The House Freedom Caucus is calling on House Democrats to support a discharge petition that would force a vote on Republican-drafted legislation to keep Title 42 border protections in place for the foreseeable future — just as the policy needs to be renewed.

The conservative group, in a letter to Democrats, calls on them to sign Rep. Chip Roy, R-Texas’ discharge petition, which would force a vote on Rep. Yvette Herrell, RN.M. “Act on PAUSE”. This bill would keep Title 42 protections in place until all COVID-19 mandates and public health emergencies are over and until the Centers for Disease Control (CDC) reduces the risk to the travel health for Canada and Mexico at level 1.

It doesn’t make much sense. Indeed, everyone involved in this setback is upside down. President Biden believes COVID-19 is still a big deal, yet he’s set to overturn Trump’s Title 42 order on the grounds that the pandemic is functionally over, while the House Freedom Caucus stands opposes both “COVID-19 warrants and health emergencies”, yet wants Title 42 extended on the grounds that those warrants and emergencies still exist. I guess there’s a bit of politics here – read with with a Machiavellian eye, one could conclude that the House Freedom Caucus is trying to make Biden live up to its own presumptions – but, even if there are, the approach is the wrong one if one cares at all If the House Freedom Caucus believes the United States should be tougher on illegal immigrants, then they should advocate for a broader title-42-ish law which is in in no way contingent about the existence of “COVID-19 mandates and public health emergencies,” or anything else that subjective. Congress sets the law for immigration to this country, and under the US Constitution has near-plenum power to do so. If he wishes, he can use this power to change.

I have no interest in endorsing, justifying or excusing President Biden’s disastrous border policy, nor do I intend to ignore how utterly irresponsible it is that, knowing for some time that the title 42 would finally reach its expiration date, the White House seems to have drawn up no contingency plan. But here, as elsewhere, I must insist that if we are to have ’emergency powers’ in our laws, they must be used only in emergencies. As was the case when President Biden illegally attempted to extend the federal eviction moratorium, Congress’s role in addressing these shortcomings is neither to beg the executive branch to abuse or stretch its statutory authority, not to declare permanent emergencies, but to pass clear and constitutional decisions sound laws and demand that the President carry them out faithfully. If it’s true that we have an ongoing border crisis – and if it’s true that Title 42 powers are the only thing that can meaningfully address it – the answer is not for the legislature or executive to hijack COVID-19 in perpetuity, but to tell the White House exactly what is expected of it going forward.

Leave a Reply

Your email address will not be published.