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Deep Breaths and Key Reminders: Why Following Science and the Law and Lifting Title 42 is the Right Decision

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Washington, DC – Upon the news that the Biden administration will lift Title 42 restrictions at the end of May, Republicans engaged in predictable ugly and politicized attacks, heavy on fear and falsehoods while failing to offer anything approaching a real solution. 

Other observers, including some Democrats, expressed worry that lifting Title 42 will lead to a border surge and boomerang back against Democrats in the midterms. Deep breaths and a few key reminders are in order:

  • Title 42 is a public health policy. Tellingly, no one advocating keeping it intact does so through a public health lens. Title 42 is not an immigration or border policy nor part of a modern approach to combating cartels or fentanyl. Instead, it’s a public health policy that, upon the rise of COVID, Stephen Miller used to justify dismantling an accessible asylum system and as part of his larger war against immigrants. Keeping it on the books violates both established law and sound science.
  • Even as a border control measure, Title 42 was a failure. The rise in border apprehensions coincides with the implementation of Title 42 under President Trump (see American Immigration Council analysis here and Aaron Reichlin-Melnick’s tweet here). Title 42 incentivized individuals to repeatedly try to cross the border to apply for asylum, and these recidivists drove the number of “encounters” well beyond the actual number of individuals apprehended. In addition, using Title 42 prevented the federal government from using consequence delivery mechanisms available under current law. Pretending Title 42 is an effective border control strategy doesn’t hold up under scrutiny.
  • America can manage migration and live up to our best traditions as a welcoming nation. Modernizing our immigration laws, not relying on a public health fiction, will help. America can manage migration effectively, protect refugees and asylum seekers who need protection and govern our border with both order and justice. The Biden administration has a plan to restore a fair and functional immigration and asylum system as part of an intelligent regional strategy to deal with forced migration in our hemisphere. But we also need to modernize our immigration laws and reform our immigration system. But Republican obstructionism prevents long-overdue reform. When asked for policy solutions, the GOP re-ups the cruel and chaotic policies of Trump and Miller, with the centerpiece being the completion of the wasteful and failed border wall and naming it after former President Trump.
  • Republicans’ concern and criticism on Title 42 is grounded in bad faith and motivated by cynical politics. Don’t forget, the GOP and right wing media started blaming Biden for rising border numbers while Donald Trump was still President! All Republicans have to offer are attack ads, ‘open borders’ falsehoods, and the same cruel and chaotic policies that Trump and Stephen Miller advanced. See here for 5 questions to ask Republicans about immigration and the border, underscoring that the GOP has no solutions beyond their devotion to political attacks, simplistic soundbites and overt nativism.

The dominant GOP reaction mirrors that of the architect of using Title 42 as an immigration weapon. As Stephen Miller stated: “This will mean armageddon on the border. This is how nations end.” In response, the invaluable Aaron Reichlin-Melnick of the American Immigration Council noted, “Stephen Miller is a whiny baby who thinks the United States is a pathetic weakling that will crumble at the slightest pressure. I think the history of the United States has long shown that we are made stronger by adding more strivers searching for the American Dream, not weaker.” Meanwhile, Fox News and GOP surrogates keep driving the racist conspiracy theory that Democrats are trying to replace white people, rhetoric that inspired white supremacists from Charlottesville to the Tree of Life Synagogue to the Walmart in El Paso.

According to Vanessa Cárdenas, Deputy Director of America’s Voice,

Following science and the law and winding down Title 42 doesn’t mean the sky is falling. In fact, Title 42 was a failure from any number of perspectives. It used a trumped up public health justification to cover for deterring the legitimate exercise of the right under U.S. and international law to apply for refugee status. It arguably increased border apprehensions rather than reducing them. And it undermined our values as a nation that welcomes those fleeing for their lives. Excluding thousands who ask for asylum simply doesn’t hold water. It never did. 

Yes, managing our southern border and upticks in border arrivals is a challenge for the Biden administration, just as it has been for presidents of both parties going back decades. That is why we need to modernize our laws and fix an immigration system that remains broken. We need to fashion a hemispheric strategy that deals with forced migration at its roots and as an urgent matter requiring regional cooperation. To create order and justice at our southern border, we need to address challenges at the border and recognize that forced migration doesn’t start there, it starts in sending communities and countries where governments are failing to address the legitimate needs of those who live there. Most of all, addressing the challenge requires we start with analysis and policies based on data and not on fiction or fear mongering.