Immigration was the animating issue for Donald Trump’s political career, the focus of his campaign announcement in 2015 and the reason that he emerged as the front-runner in the 2016 Republican presidential nominating contest. He made impossible pledges about what he’d do as president — cover the border with a wall; make Mexico pay for it — that he was unable to fulfill. But he tried, declaring a dubious national emergency that allowed him to shift funds from the Defense Department to start building a barrier.
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When the coronavirus pandemic emerged, Trump had the opportunity to enact a change he’d flirted with previously. The little-understood virus allowed the Centers for Disease Control and Prevention to apply a section of U.S. Code — Title 42 — intended to address the “serious danger of the introduction of disease into the United States.” In short order, Border Patrol agents began simply turning migrants away, denying them the opportunity to apply for asylum.
Testifying before the House select subcommittee on the coronavirus crisis this year, CDC Principal Deputy Director Anne Schuchat suggested that the decision to deploy Title 42 was rooted more in politics than public health.
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“I’m familiar with the CDC’s presentation of data about the relative risks of disease on different sides of the border,” she explained in excerpts from her testimony released Friday. “At that time, there was a lot more disease in the U.S. than south of the border. But the decision-making process that led to that I wasn’t familiar with, but that case wasn’t based on a public health assessment at the time.”
In other words, she said, there was more reason to be worried about community spread in the U.S. than spread from Mexico into this country. She indicated that Martin Cetron, the CDC’s director for the Division of Global Migration and Quarantine, declined to sign the order implementing Title 42.
“His view was that the facts on the ground didn’t call for this from a public health reason,” Schuchat said, “and that the decision wasn’t being made based on criteria for quarantine. It may have been initiated for other purposes.”
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A bit later, she stated that CDC Director Robert Redfield “was put in many impossible situations over the course of his position,” referring to the political pressure he faced.
In other words, even within the CDC, the use of Title 42 to address migration was seen by some as a decision being made for political, not public health, reasons.
This would certainly be in keeping with Trump administration policy. After all, the predicate for the wall construction was the declaration of a national emergency that was linked to data that quickly declined. The emergency remained in place. So one might assume that once President Biden took office, Title 42 would be abandoned.
It wasn’t. In fact, far more migrants have been removed from the United States under Title 42 this year than were last year. When you hear news stories about the hundreds of thousands of people who’ve been stopped at the border since Biden took office, it should carry the asterisk that more than half of those stopped were then removed under Title 42. That so many people have been ejected from the country so quickly is also why the number of repeat apprehensions is so high: in June, for example, a third of those stopped at the border had been stopped previously, more than twice the rate seen from 2014 to 2019.
Given that the policy eliminates the ability of migrants to legally apply for asylum, immigration advocates have been angry about the use of Title 42 since it was first introduced. Under the Biden administration, there was one tweak: unaccompanied children who arrive at the border are not expelled using the rule. Otherwise, its use is largely unchanged.
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In fact, the Biden administration has actively defended use of the policy in court. In September, Homeland Security Secretary Alejandro Mayorkas argued that it was necessary “to protect the American public, to protect the communities along the border and to protect the migrants themselves.” At the time, the administration was facing sharp (and unwarranted) criticism that the fourth surge in coronavirus cases was a function of migration from Mexico and not spread within the United States. It was also facing criticism from health experts, scores of whom signed a letter asking that the policy be abandoned.
“With every day that goes by, the application of Title 42 exacts a terrible toll on the lives and well-being of asylum seekers turned away from the U.S. border and denied their right to seek asylum,” the letter read, echoing the long-standing complaints of immigration advocates. Early last month, a senior State Department official announced his resignation, pointing specifically to the removal policy: “this administration’s current implementation of the Title 42 authority continues to violate our legal obligation not to expel or return … individuals who fear persecution, death, or torture.”
The Biden administration’s calculus seems fairly obvious. Biden has faced enormous criticism for the number of migrants trying to enter the country, a surge for which his opponents argue he deserves full blame. By removing a large number of those migrants, Biden can — accurately — argue that the number of migrants actually staying in the country is far lower than the top-line numbers. Of course, he’s also doing himself a disservice in that so many of those removed simply try to enter again, counting as apprehended migrants twice instead of once. (In an editorial over the weekend opposing the use of Title 42, the New York Times reported that half of single adults removed under Title 42 are later apprehended again.) Without Title 42, the number of apprehensions would probably be lower and the number of asylum seekers higher. The administration, it seems, is willing to take that trade-off.
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The newly released testimony excerpts from Schuchat, though, undercut the central argument for use of Title 42, the one Mayorkas tried to elevate. The genesis of the policy was not rooted in public health, she suggested, making it very fair to wonder if it is at this point — when vaccine availability is broad and understanding of transmission thorough. For an administration that’s proved very willing to challenge Trump’s decision-making, one can guess why this one is being treated differently.