May 11, 2023

The End of Title 42 (for real this time).

President Biden said to expect some chaos.

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 12 minutes.

Title 42 will officially end at midnight. What does this mean for U.S. immigration policy, Mexico, and migrants along the border? Today, we break it down. Plus, a question about 2nd amendment rights and felons.

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Changes to Tangle.

Tomorrow, we are going to be releasing a very special Friday edition explaining some new changes to Tangle's editorial policy. These changes are part of our continued effort to be one of the most neutral and balanced political outlets in the world — one that can be read and trusted by you, regardless of your political affiliations. We're going to be breaking down specific language choices and editorial decisions that are becoming part of our policy, and also seeking your feedback on these rules and suggestions for other ideas.

Because of the nature of the edition, we'll be sending it to all Tangle subscribers, but if you want to receive Friday editions going forward, you need to become a member.

Quick hits.

  1. House Republicans released a pair of reports on Wednesday tying a CIA employee to a letter aimed at helping the Biden campaign and laying out allegations of "influence peddling" in the Biden family during Biden’s time as vice president. (The details)
  2. Sen. Dianne Feinstein (D-CA) returned to the Senate, though she said she'd be keeping a "lighter schedule" as she continues to recover from shingles. (The return)
  3. The Biden administration proposed new rules to limit emissions from coal and gas-fired power plants that would reduce emissions equivalent to removing 137 million cars from the road. (The proposal)
  4. Rep. George Santos (R-NY) pleaded not guilty to 13 charges filed against him in New York. (The plea)
  5. Missouri lawmakers approved bills banning "gender-affirming care" for youth and barring trans women and girls from participating in sports in the girls and women's divisions. (The bans)

Today's topic.

Title 42. On Thursday, May 11, the controversial Trump-era public health restriction will come to an end at midnight. Title 42 was a public health order issued during the pandemic that was used to promptly turn away migrants who arrived at the U.S.-Mexico border as a way to prevent the spread of Covid-19. The order allowed border officials to deport migrants who are typically allowed to seek asylum in the U.S., sending them back to Mexico or their home country.

Since the policy began, more than 2.8 million migrants have been expelled from the border, according to U.S. Customs and Border Protection data. Now, because Biden is ending the Covid-19 public health emergency nationally, Title 42 will end, too.

Even before this moment, the border has been chaotic, with record numbers of unauthorized migrants crossing into the U.S. and border facilities overwhelmed. President Biden has suggested that the end of Title 42 could bring fresh problems, and warned reporters on Tuesday that "it's going to be chaotic for a while."

An estimated 150,000 people are already in Mexico and headed toward the U.S. as the migration restrictions end. On Sunday alone, close to 10,000 migrants were encountered by border officials. Several U.S. border cities have declared emergencies, and Biden sent an additional 1,500 active duty troops to the border to help manage the surge.

Additionally, the Biden administration has been implementing policies to prepare for the end of Title 42. They will automatically reject asylum seekers who illegally cross into the U.S. without first seeking asylum protections in one of the countries they travel through. This is a change to the United States' longtime policy, which allowed migrants to seek asylum regardless of whether they crossed the border illegally. The US will also change rules to allow more migrants to be sent back to Mexico and impose severe penalties, like a five-year ban on re-entry, for those who cross illegally.

Meanwhile, House Republicans are pushing H.R.2, the Secure the Border Act of 2023, which the House will vote on today. That bill includes some Republican-favored immigration policies like completing Trump's border wall, designating Mexican cartels as foreign terrorist organizations, and adding new restrictions on asylum-seekers.

Today, we're going to take a look at some reactions to the end of Title 42 and some commentary about what's next from the right and left. Then, my take. You can find our previous coverage of immigration issues here.

What the right is saying.

  • Many on the right criticize the Biden administration's border policies, saying this chaos is a result of his actions.
  • Some say the end of Title 42 is going to create a whole new slew of problems the administration is not prepared for.
  • Others argue Biden's decision to send troops to the border is going to be ineffective unless they’re tasked with spotting and detaining migrants.

The Wall Street Journal editorial board said the "collapse of the border is on full and painful display."

Here are some "scenes from the Biden Administration's immigration policy: More than 10,000 illegal migrant apprehensions on Tuesday, a record for a single day. Emergencies are declared in El Paso and other border cities, but also in Democratic-run New York state and Chicago, far from the border... Tens of thousands more migrants from all over the world sit across the border in Mexico, waiting for the right moment to walk or swim to the U.S. This is what failure looks like," the board said.

Biden is hoping Americans won't notice "if only Fox News reported on the border chaos." But with Title 42 expiring, it "can't be asserted away." Remember how we got here, they write: "Democrats campaigned against the Trump Administration’s policies as cruel... President Biden ended such Trump-era policies as Remain in Mexico. The signal went out to migrants that the border was essentially open. If you entered the U.S. and claimed asylum, the chances were good you would be admitted with a future date for an asylum tribunal you may never have to show up for. Millions of migrants took the hint and came in record numbers."

In Heritage, Simon Hankinson said the end of Title 42 means the end of a secure border.

"Think of Title 42, which covers public health, as a bouncer keeping someone out of a bar. Easy, no paperwork. Then there’s Title 8, which deals with immigration. Think of it as how you evict terrible tenants from a rental property: lawyers, lots of paperwork, and very slow, even if you usually win in the end," he said. Under U.S. law, anyone arriving at the border illegally is supposed to be arrested and detained until they have their due immigration process. But with a backlog of 1.5 million asylum cases, "Some newly released migrants won’t get their first appointment for a removal hearing until 2033!"

The Biden administration believes that "almost every person" attempting to cross "should have the right to enter the U.S. and make an asylum claim, no matter how unfounded." Now, we're about "to fire the Title 42 bouncer," while "thousands of migrants are waiting in Mexico and all the way down to the Darien Gap in Panama to swarm our open borders."

John Ullyot, a U.S. Marine Corps veteran, wrote in the New York Post that Biden was wasting the skills of U.S. troops by sending them to the border to do paperwork.

"Biden’s troop-deployment gambit falls flat as a solution to the crisis. And it insults our troops by shunting them primarily to clerical and warehousing activities instead of the complex military maneuvers for which they are trained and where they could make the most difference," Ullyot said. "I know because I was one of them — and I served on the border."

"Deploying active-duty troops to the porous border is a good thing — but needs to be done in the right way," Ullyot said. Troops should be using sophisticated "thermal and night-vision equipment" to track migrants and smugglers as they cross into the U.S., then alert the Border Patrol in real time. "US reconnaissance Marines are among the best in the world for such a serious military assignment, given their ability to gather intelligence across vast areas of land with just a handful of operators and do so undetected by enemy forces, in this case dangerous smugglers and human traffickers."

What the left is saying.

  • Many on the left criticize Title 42 as ineffective and welcome its ending
  • Some point the finger for the border crisis at Congress and Republicans, saying Biden is doing his best despite an ineffective legislative branch.
  • Others say the Biden administration's new policies are cruel and ineffective, and asylum seekers have a right to seek refuge in the US.

The Los Angeles Times editorial board said that with Title 42 ending, Biden is relying on "the same failed immigration policies."

For three years, Title 42 has allowed the United States "to expel asylum-seeking migrants en masse," yet it hasn't "stopped desperate people fleeing countries ravaged by violence or authoritarian regimes from trying to cross the U.S.-Mexico border." These migrants "brave jungles teeming with bandits, travel atop dangerous trains and walk through scorching deserts for the opportunity to live and work without fear," yet our "mishmash of policies" to replace Title 42 will try to "scare migrants from arriving at the border, rather than addressing the root cause of migration."

Our system is broken because a "dysfunctional and deeply divided Congress" can't agree on how to deal with "the millions of undocumented immigrants living in the U.S., immigration and asylum case backlogs or even legislation to protect those who were brought to the country illegally when they were young." Much of the blame, the board argued, "falls on Republican legislators for their anti-immigrant rhetoric" and inability to acknowledge "the role migrants play in our economy."

The Washington Post editorial board said Biden "is doing his best" with little help from Congress.

The Biden administration's overall immigration policy "has been waffling and contradictory," the board said, and the end of Title 42 is forcing a reckoning. Republicans "have a point" that Biden's immigration policies have "crossed purposes with itself." The administration "has featured tough talk designed to dissuade migrant crossings" while "well over 1 million migrants, many of them in families, have been admitted to the country. Often those migrants pursue asylum claims that can take years to adjudicate in overwhelmed immigration courts. The result has been to encourage an ongoing crush of illegal border-crossing."

Yet Republicans’ own approach is "hardly a panacea." They've "flown and bused migrants" to Democratic states as stunts and pressed to retain the legally "unsteady" Title 42. Biden deserves credit for "vastly expanding" the admission of refugees from Ukraine and Afghanistan, ending Trump's family separation policy, and opening processing centers in Colombia and Guatemala. The asylum system was designed for another era, and "until Congress manages to act, administrations will be forced to rely on improvisations and stopgaps, inevitably challenged in court."

In The New York Times, Alejandra Oliva said we have a "legal responsibility" to those seeking refuge.

"But these days the door to stability, much less economic growth, has been shut against asylum seekers even before they’re allowed to enter the country," Oliva said. There is no better example than Biden's new asylum laws, which will "bar from asylum "all non-Mexican migrants who arrive at the southern U.S. border without having first sought and been denied asylum in at least one of the countries they passed through on their journey." In order to apply, they need to make an appointment through a "notoriously glitchy phone app" that struggles to identify dark-skinned faces.

Biden's expanded parole system "to allow up to 30,000 people from Venezuela, Cuba, Haiti and Nicaragua to enter the United States per month — is purportedly a more humanitarian approach," Oliva wrote. "But it’s still fundamentally an unjust policy." Baked in are prerequisites "that exclude a large majority of people" like having a financial sponsor and arriving by plane, which necessitates a passport. Instead of "toggling from one ineffective deterrence strategy to another, or sending troops to manage people who are here looking for peaceful lives," Biden should reallocate the billions of dollars for deterrence to ensure asylum seekers can receive work permits and settle in communities that will welcome them.

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. You can reply to this email and write in. You can also leave a comment.

  • Biden's immigration policies continue to suffer from inconsistencies and contradictions.
  • Unlike Trump, there is no clear mandate, and no clear objective that brings order.
  • Without Congress doing anything, we will continue to face uncertainty and ebbs and flow of chaos.

It's been more than a year since we wrote a newsletter called "the end of Title 42."

At that time, the New York Times was reporting that Biden was planning to end Title 42 in May of 2022, but that move never came. Back then, they were already constructing new border facilities and making contingency plans for taking 12,000 to 18,000 migrants into custody every day.

Now, it's a year later, and the Biden administration is actually ending Title 42, Congress has still done nothing, and Biden’s policies continue to be all over the place. They seem to have expanded the capacity of facilities on the border, and since last March have introduced some new policies to manage the increased flow: The CBP One phone app to process applications, severe penalties and expulsions for those who cross illegally, and a parole system for migrants from certain countries. Yet the Biden administration seems to know they haven’t done enough, preemptively warning that more chaos is around the corner and cautioning overwhelmed facilities on the border that they may not get a reprieve anytime soon.

I've expressed skepticism about some of the Trump-era policies for a long time. Family separations were obviously immoral and also unhelpful. The border wall was nonsensical in most areas, ineffective in others, and more expensive than deploying technology or humans who can do a better job apprehending unauthorized migrants. Those solutions also don't require the government to seize private property or destroy important land along the Rio Grande river.

One thing Trump’s policies had that Biden’s don’t is a clear and consistent mandate. As The Washington Post put it (under "What the left is saying"), Biden's policies have been waffling and contradictory. He oscillates between the progressive vision of the border and Trump's, while seeming to implement policies that pull from both. In some arenas of policy, a person like me might applaud a "multi-faceted" and "bipartisan" approach, but the tangible result at the border has been chaos, confusion, and the worst of all worlds.

To recap: During the Biden administration, we've now covered the return of Trump's remain in Mexico policy, then the flood of Haitian migrants on the border in September of 2021, then the record 1.9 million border apprehensions in 2021, then the purported end of Title 42 that never came in March of 2022, then the new record of migrants crossing in June and July of 2022 (with an increase of asylum seekers from across the globe), then the Senate's two immigration bills that never moved, then Biden's new border plan in January of this year to turn away Cubans, Haitians and Nicaraguans, then his new immigration rules in March to punish asylum seekers crossing illegally, and now the official end of Title 42 and its ramifications.

There's no doubt Title 42 had to end. It was legally dubious even during the pandemic but is outright ridiculous with the public health emergency ending. Still, Biden has had over two years to formulate a consistent set of policies to address it, and all we have is glitchy apps and a hodgepodge of policies whose goals seem difficult to categorize into a cohesive vision for what this administration wants. Biden missed an opportunity (with full Democratic control of Congress) to burn political capital on an immigration solution, and now we're back to the congressional deadlock that has defined the last 20 years.

It's all very, very bad, and it's hard to see the way out. Despite our moral and legal obligation to give asylum seekers their day in court, we don't have the capacity to clear a backlog of over a million cases. As I've screamed from the rooftops over and over, this reality remains the central problem to me: We need more lawyers, judges, and processing centers on the border to actually evaluate the merits of asylum claims. Neither side seems to want to do that because, if this capacity existed, their side may end up on the wrong end of a functioning administrative and legal system. I actually applaud the idea for the planned 100 processing centers in the Western Hemisphere, but the administration is arguing it will take time to set those centers up and see results. The obvious point is that they have had nothing but time, and they are working from behind because they didn't take the border crisis seriously enough early on.

Worse yet, one of the core elements of Biden's new plan is both a reversion to what Trump was doing and legally dubious. He is going to try to use Title 8 and a slew of new rules to quickly expel migrants who haven't first applied for asylum in Mexico, which is the kind of policy apparatus that federal courts struck down in the Trump era. So not only is Biden reverting to policies that he could have left in place, he's also likely to face legal challenges as he steps backward. The combined effect would be an already broken system becoming more dysfunctional, and more time wasted.

As always, real action needs to take place in Congress. I feel like a (very) broken record, but there is no president who can do this with executive actions and administrative rules alone. Without Congress actually passing a comprehensive immigration bill, which we seem to have been talking about for decades now, we're just going to keep ending up back here with ebbs and flows of dysfunction on the border. That dysfunction hurts American citizens, it hurts the migrants who want to come here for a better life, and it creates more and more animosity between all the groups involved. I wish I had any hope Congress would get to work, but the prospect seems increasingly unlikely, especially with a new presidential election around the corner.

Your questions, answered.

Q: You state that convicted felons who serve their time should have their rights restored.  What about their 2nd Amendment rights?

— Bill from Sanibel, Florida

Tangle: That's a great question. Speaking generally, as I was, yes — I meant their full rights, which includes their 2nd Amendment rights. Though I would offer one caveat to that and my comments about voting rights: I think there are legitimate arguments to permanently remove those rights in the wake of certain criminal convictions.

For instance, I made the case that all felons should have their voting rights restored once their time was served. However, imagine if someone was a felon because they organized a massive election fraud scheme to win a city council race. If a judge ruled that this person was permanently barred from voting or running for a city council race again, I think I could get behind that kind of ruling. Especially if that punishment were tied to more leniency on something like a jail sentence. It's a specific and targeted punishment that fits the crime well.

Similarly, if someone were convicted of a violent crime with a gun, I think it'd be fair for a judge to allow them out on parole or to make it a part of their sentence that they forfeited their right to a firearm permit. That is a targeted, specific punishment, the same way someone convicted of child molestation might be allowed out of prison but prohibited from entering school zones or certain settings where there were children.

So, yes: Broadly speaking, if someone serves their time, they should re-enter society with their rights fully restored. The point of our justice system should be to punish, rehabilitate, and deter, and I don't think punishing people in perpetuity is the best way forward (like having laws that ban all felons from voting). But I do think there are circumstances where the targeted removal of certain privileges or rights in response to related crimes might be appropriate and just.

Want to have a question answered in the newsletter? You can reply to this email (it goes straight to my inbox) or fill out this form.

Under the radar.

Sen. Joe Manchin (D-WV) hasn't announced any plans to run as a third party candidate, but he sure is acting like he will. Manchin took time away from his Senate schedule to gather with Iowa business and community leaders, and has been running a "no-mercy campaign" against President Biden on his "radical climate agenda." Manchin might be Democrats' most endangered incumbent senator, and the group No Labels is raising money to build a presidential launchpad for a bipartisan ticket. Meanwhile, some bipartisan groups, like Third Way, are expressing horror that a Manchin ticket could throw a potential 2020 rematch to Trump. Axios has the story.


  • 2.4 million. The number of migrant encounters on the border in fiscal year 2022.
  • 250,000. The number of migrant encounters on the border in December 2022 alone.
  • ~25%. The estimated percentage of these encounters that are with previously expelled individuals.
  • 45%. The estimated percentage of encounters that ended with Title 42 expulsion.
  • 1.5 million. The estimated number of U.S. immigration cases that are waiting to be heard.

The extras.

  • New YouTube just dropped: We have a new YouTube video up. Check it out here (and don't forget the bloopers at the end).
  • One year ago today, we were covering inflation starting to spiral.
  • The most clicked link in yesterday's newsletter was The Guardian story on the stroller hero.
  • Justice: 68% of Tangle readers say they believed it was more likely than not Trump sexually abused E. Jean Carroll, and that the outcome was fair.
  • Nothing to do with politics: A giant, fat turtle nicknamed "Chonkosaurus" is winning over visitors to the Chicago river. And going viral.

Have a nice day.

Philadelphia has implemented a plastic bag ban that actually appears to be working. In the last year, the ban on plastic bags has prevented 200 million plastic bag uses in the city, roughly equivalent to filling City Hall with plastic bags every eight months, according to a new study. Retailers can no longer give out single use plastic bags or paper bags that aren't made up of at least 40% recyclable material. As a result, the use of reusable bags has skyrocketed in the city, and other Pennsylvania towns are now following their lead. “This success of the Plastic Bag Ban Ordinance shows how the city, together with local business and consumers, can stop waste before it starts,” Philadelphia Mayor Jim Kenney said. As a newly minted Philly resident, I can attest to the ease of bringing reusable bags to the grocery store. The Philadelphia Inquirer has the story.

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