Title 42 was never the solution to Biden’s border crisis


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A group of migrants are processed after being apprehended by U.S. Border Patrol agents in the desert at the base of the Baboquivari Mountains, Thursday, Sept. 8, 2022, near Sasabe, Ariz. The desert region located in the Tucson sector just north of Mexico is one the deadliest stretches along the international border with rugged desert mountains, uneven topography, washes and triple-digit temperatures in the summer months. Border Patrol agents performed 3,000 rescues in the sector in the past 12 months. (AP Photo/Matt York) Matt York/AP

Title 42 was never the solution to Biden’s border crisis

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Last week, a federal judge in Washington, D.C., ordered the Biden administration to stop using the Title 42 public health policy to turn away immigrants caught illegally crossing the southern border. While the end of this program will surely cause the existing crisis at the border to worsen, conservatives should not shed a tear at its demise.

President Joe Biden already gutted Title 42’s full authority on his first day in office, cynically rewriting it on the fly for political purposes. Now that Biden is being forced to abandon his use of a public health statute to enforce immigration policy, maybe his administration will get serious about embracing existing, proven solutions to the border chaos.


While it has become shorthand for the legal basis U.S. Customs and Border Protection uses to return immigrants back to Mexico, Title 42 is actually a broad public health law that has very little to do with immigration. In fact, it is the same exact law that Biden tried to use to justify his COVID eviction moratorium.

When then-President Donald Trump first invoked Title 42 in March 2020, it was a justified precaution to stop the spread of COVID across the southern border. Biden, however, began selectively enforcing Title 42 without any regard for science or public health on his first day in office. For example, what was the scientific reason Title 42 applied to adult immigrants traveling alone but not to adult immigrants traveling with children? Biden never said — because there wasn’t one.

When pressed on the issue, Homeland Security Secretary Alejandro Mayorkas passed the buck to the Centers for Disease Control and Prevention. “Title 42 authority is a public health authority, and it is not an immigration policy,” Mayorkas said last October. “It is not an immigration policy that we in this administration would embrace, but we view it as a public health imperative as the Centers for Disease Control has so ordered.”

But that same week, when the Biden administration was asked to explain why it was not fully implementing a judge’s order to reinstate Trump’s “Remain in Mexico” policy, an anonymous Biden official said, “Title 42 will remain the primary enforcement mechanism for illegal border crossings.” So was it an immigration policy or a health policy Band-Aid over an immigration crisis? Biden and his senior officials were speaking out of both sides of their mouths.

The reality is Biden cynically used Title 42 as a loophole to rewrite immigration policy on a political whim. One day, he wouldn’t apply it to Haitians — the next day, he’d ruthlessly apply it to send a message. The result has been record-breaking lawlessness, misery, and death.

Biden doesn’t need Congress to end the crisis he created. All he needs to do is re-implement the Remain in Mexico policy his predecessor used to solve the 2019 border surge.

Republicans should not lift a finger to help Biden reform the immigration system until he has proven he has the competence and will to restore order at the southern border.


© 2022 Washington Examiner

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