Mar 31, 2022

The end of Title 42.

The end of Title 42.

Plus, a question about America's attitude towards immigrants.

I’m Isaac Saul, and this is Tangle: an independent, ad-free, 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.

We're covering the end of Title 42 and what it means for the border. Plus, a question about America's attitudes toward immigrants.

U.S. Border Patrol agent apprehend migrants who surrendered to him after crossing the Rio Grand River in El Paso Texas on March 18, 2019. Photo: Mani Albrecht

See you tomorrow?

In tomorrow's subscribers-only Friday edition, we're going to be exploring the makeup of Congress — and comparing it to Americans at large. Salary? Age? Education? Benefits? Etc. We're going to take a look at how Congress looks, compare it to the U.S. as a whole, and see what we can take away from the available information.


Quick hits.

  1. President Biden took his fourth shot of Pfizer's Covid vaccine yesterday, and also announced the launch of COVID.gov, a one-stop shop for tests, vaccines and masks. (The shot)
  2. Sandy Hook families rejected a settlement offer from Infowars host Alex Jones, who was found liable for damages after claiming the 2012 mass shooting was a hoax. A trial is scheduled to determine the compensation. (The trial)
  3. Rep. Madison Cawthorn (R-NC) said he exaggerated claims he made on a YouTube show that he witnessed House Republican colleagues doing cocaine and was invited to sex parties. (The comments)
  4. The White House declassified intelligence reports suggesting Vladimir Putin is receiving bad information from advisors who are fearful of explaining the reality of what’s happening in the war in Ukraine. (The intelligence)
  5. Ukraine is sending in buses to the besieged city of Mariupol to evacuate citizens after a temporary cease-fire. (The cease fire)

Want to ask a question? You can reply to this email and write in (it goes straight to my inbox) or fill out this form.


Today's topic.

Title 42. Yesterday, The New York Times reported that the Biden administration is planning to end Title 42, the emergency CDC health order that has restricted immigration at U.S. land borders since the beginning of the pandemic. The Trump administration enacted Title 42 in March of 2020 as a temporary pandemic response, and it has been used since then to turn migrants away from the border without hearing their asylum claims.

The Biden administration's recent moves, including the construction of new migrant holding facilities and the solicitation of contracts for new transportation services, caused speculation the end of Title 42 was near. Immigration officials are bracing for an unprecedented spike in arrivals of migrants at the border when the restriction is lifted, which is currently planned for May 23. CBS News reported that the Department of Homeland Security (DHS) currently sees an average of about 7,100 migrants per day, and is creating contingency plans for the possibility of 12,000 to 18,000 migrants entering U.S. custody daily.

During 2021, there were 2 million arrests at the border, an all-time high, while some 1.7 million migrants were expelled from the country under the Title 42 order.

Title 42 is actually a public health policy, not an immigration one, as the Centers for Disease Control and Prevention (CDC) is responsible for implementing and lifting it. But public health experts have said it is ineffective at stopping the spread of Covid-19 and migrants do not pose serious transmission risks at this stage in the pandemic. Other critics of the order have said it should be lifted on humanitarian grounds, given that it prevents migrants from making their legal claims to asylum and often leaves them stranded on the Mexican side of the border in squalid and unsafe conditions.

The decision to lift the order in May has significant political risks for Democrats, who worry about a border crisis leading up to the midterms. However, they are also motivated to quiet criticism of Biden from both sides of the aisle: the left has complained that maintaining Trump’s border policy is cruel and ineffective, while the right has chided Biden as hypocritical for keeping the policy in place after criticizing it when Trump was president.

Below, we'll take a look at some arguments from the right and left about Title 42, as well as some reactions to the announcement.


What the right is saying.

  • Many on the right criticize the Biden administration's decision, saying Title 42 should remain in place until there is a replacement.
  • Some say Biden is right to end the order, but Congress should create a new measure that isn’t contingent on having a public health crisis.
  • Others warn that we can expect the situation on the border to spiral out of control.

Carine Hajjar said Biden can no longer hide behind a Title 42 order.

"The problem is that the White House currently has no comprehensive backup plan for a post–Title 42 border, which is why it’s extending the policy until late May and scrambling in preparation," Hajjar wrote. "It recently created the Southwest Border Coordinating Center to help border agencies brace for the impending surge. While most Democrats have opposed the policy and questioned the validity of its public-health purposes, Arizona’s Democratic senators Kyrsten Sinema and Mark Kelly wrote a letter to President Biden asking for Title 42 to continue until 'you are completely ready to implement and coordinate a comprehensive plan that ensures a secure, orderly, and humane process at the border.' 'Comprehensive’ currently seems like a long shot.

"The southern border is being inundated by migrants, with about 7,100 encounters on a daily basis and over 160,000 encounters in February alone. (In February 2021 there were 101,099 encounters and in February 2020 there were 36,687.) The situation is so dire that DHS deputy secretary John Tien asked employees to consider joining the DHS Volunteer Force," Hajjar wrote. "Despite turning over a million migrants away under Title 42, the Biden administration has been releasing thousands of families into the interior, further encouraging the current surge on the southern border."

In Newsweek, Ira Mehlman said Biden is ending the only provision currently controlling our border.

"Ending Title 42 along with other COVID restrictions would not be a problem except for the fact that, as a result of a string of other policy decisions the Biden administration has made over the past 14 months, it is the only functioning mechanism still in place to remove migrants who cross our borders illegally. The result of scrapping Title 42 without restoring other border enforcement policies that the administration has systematically jettisoned would be sheer chaos. Who says so? President Biden's own Department of Homeland Security (DHS)," Mehlman said. "According to a report by Axios citing officials within DHS, ending Title 42 would result in an immediate surge of 170,000 additional migrants attempting to enter the United States illegally.

"And the administration does have other options. For starters, the President could keep Title 42 in place," he added. "COVID may not be as big of a public health threat as it was a few months ago, but it hasn't gone away entirely. As the past two years have taught us, there are a lot of letters in the Greek alphabet, and a new variant could come roaring back with little notice," he wrote. "The administration could also reinstate the Migrant Protection Protocols (MPP) under which third-country migrants seeking asylum wait in Mexico, pending a hearing to determine if their claims have merit before being allowed to enter the U.S. While it was in place, it effectively deterred migrants from filing meritless asylum claims in an attempt to enter the country."

Charles C.W. Cooke wrote that ending Title 42 is the right call, legally, but now Congress should do something.

"Critics of the move are worried about the effect that losing Title 42 as a tool will have on illegal immigration," he wrote. "This worry 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 maintained outside of its legal context. It can’t. Our presidents are not dictators, and they are not allowed to scour the statute books for workarounds. If Congress wishes to give the executive branch more power to deal with illegal immigration — and it absolutely should want to do that — then it should get busy doing so.

"Indeed, everyone involved in this contretemps is upside-down," Cooke said. "President Biden believes that COVID-19 is still a big problem, and yet he is on the verge of rescinding Trump’s Title 42 order on the grounds that the pandemic is functionally over, while the House Freedom Caucus opposes both 'COVID-19 mandates and public health emergencies,' and yet wants Title 42 prolonged on the grounds that those mandates and emergencies still exist... if the House Freedom Caucus believes that the United States should be tougher on illegal immigrants, then it should be making the case for a broader Title-42-esque law that is in no way contingent upon the existence of 'COVID-19 mandates and public health emergencies,' or anything else so subjective. Congress sets immigration law in this country, and, under the U.S. Constitution, it has near plenary power to do so. If it wishes to, it can use that power for a change."


What the left is saying.

  • The left argues that Title 42 is inhumane, and ending it is long overdue.
  • Some call out Biden's failure to make anyone happy, saying his maintenance of the policy was a bad decision.
  • Others say Biden must deal with migrants humanely.

In The Washington Post, Greg Sargent and Paul Waldman called it an abject failure on immigration.

"The big question will be what happens when more are permitted to enter the system. That question has substantive ramifications (how will they all be processed?) and political ones (how will Democrats respond when Republicans scream?). There are no easy answers here for Democrats," they wrote. "But one way forward might be rooted in a recognition that using Title 42 to keep migrants out bought President Biden and Democrats no good will, either from Republicans or the public.

"This policy didn’t work substantively or politically," they said. "Its rationale — that it’s needed for public health purposes — has been widely denounced by public-health experts as baseless. As policy for managing the border — which isn’t even supposed to be its rationale anyway — its success has been highly questionable. As the American Immigration Council has demonstrated, Title 42 has actually led to an explosion in repeat efforts by expelled migrants to cross the border, because under the rule, there is little penalty for trying. That has inflated raw numbers of encounters at the border. Nor has this even worked politically for Biden. Republicans attacked Biden for months for having 'open borders' even though huge numbers of migrants were being expelled without due process. And Biden’s approval ratings on immigration are some of his lowest, regularly running in the mid-30s, down from the 50s when he first took office."

Elvia Diaz said former President Trump would "love" Biden's immigration policy.

"There is no other way of saying it," Diaz wrote. "President Biden is only using Title 42 to expel asylum seekers from what former President Donald Trump called 's—hole countries.' No one can say that’s not true when Biden is exempting Ukrainians fleeing the Russian invasion from the public health rule that Trump imposed in 2020 because of the COVID-19 pandemic. The U.S. will take in some 100,000 Ukrainians with open arms. Can anyone really imagine boarding all these Ukrainians in airplanes and flying them back to their country under siege? Of course not. That would be inhumane and against international law.

"Why is it OK, then, to do exactly the same thing to Haitians, for instance, who also face brutality and even death?" Diaz asked. "Why do the same thing to Central Americans or to Africans fleeing violence? We can’t ignore the obvious any longer. Biden has expelled more than 1.7 million migrants and asylum seekers under Title 42. Many of them are Black Haitians fleeing the island’s violent political turmoil, as well as poor Central Americans and Africans fleeing violence... But are we to believe that Ukrainians pose no health risks just because they’re white Europeans? Earlier this month, U.S. Customs and Border Protection reminded its staff in a memo obtained by Politico that they are permitted to make exceptions, including for Ukrainian nationals. How convenient, right?"

The New York Daily News editorial board said Biden must deal with migrants humanely.

"Over the past few days, migrants fleeing the war in Ukraine have made their way to northern Mexico and been waved through the U.S. southern border, putting an end to a short but harrowing journey to seek safety in a foreign land," the board said. "Yards away, equally desperate travelers from Central and South America, Haiti, Cameroon and elsewhere watched as the Ukrainians were afforded the very same opportunity they’d waited months for. Little better illustrates the absurdity of Title 42.

"[Ending Title 42] won’t be a smooth process. Thousands have waited in the border area for months to access their legal right to asylum, and news that the restriction is being scrapped is certain to prompt many more to make the trek," the board added. "[The Biden administration] must not let the aftermath descend into chaos; that would be an additional injustice to those who’ve already waited so long for the orderly humanitarian process that they’re guaranteed, and a perfectly wrapped gift to Republicans hungering to point to dysfunction ahead of the midterms. Biden officials should also understand that GOP commentators will call his an open-borders administration no matter what, and cannot take the bait with a gratuitously heavy-handed approach."


My take.

This is the right call.

However you feel about Title 42, it is clear there is no longer a justification for keeping it in place as an immigration deterrent or a public health measure. Even if you think it is a legitimate public health measure, there is simply no explanation for selectively waiving it for certain migrants as we have been for Ukrainians. If you think it is a legitimate immigration deterrent, then you're in denial about the law's actual purpose and are supporting a lawless and illegitimate way to manage migrants.

Reporting, writing and thinking about immigration is something I've done for most of my political writing career. So I've seen enough freak-outs about an incoming border crisis to know that it may not come to be. The Biden administration has a full two months to prepare for the lifting of Title 42, and they have clearly been preparing for weeks to manage an influx of migrants. It is totally possible that the system collapses or becomes disordered, but I'm not going to knock them for that before it even happens.

What I will knock them for is the failure to implement any real, cogent immigration policy over the last year. When people across the political spectrum are pissed off about something, it often indicates compromise or moderation. In this case, though, it really is a product of the worst of both worlds. There have been an unprecedented number of migrant crossings that are overwhelming the border law enforcement system. There has also been plenty of inhumane treatment and unfairly selective enforcement of policies like Title 42. It is a mess.

Immigration has vexed every president in my lifetime and so far Biden is no exception. On the raw number of border crossings, Trump's presidency (before Covid-19) saw far fewer than Biden's. But it came with horrific "deterrent" policy decisions like the separation of children from their parents and the encampment of migrants in unthinkable conditions in Mexico, as well as wasteful spending like the barely-constructed border wall. Even so, Trump faced his own record-breaking waves of migrants before Covid-19 shut the world down.

Now Biden is at the helm as things worsen. A combination of a friendlier posture, the fading of the pandemic, the dropping of the inhumane border policies and job opportunities have accelerated the increase in migration numbers. The border surge we saw over the last year was predictable. It happens seasonally, like clockwork, and was always going to be unprecedented given the backlog in demand from Covid-19 lockdowns. But it's also getting more complex. Rather than just migrants from Mexico and the Northern Triangle (El Salvador, Guatemala, and Honduras), we're seeing a huge influx of migrants from Cuba, Nicaragua and Venezuela. The demographics are changing.

Still missing from any path forward is a comprehensive border solution from Congress, which is where it should come from. For the last decade, we've gotten nothing more than a rotating bit of executive action throwing buckets of water on a forest fire.

The only real solution in my eyes has been the one I've been advocating for years: A massive increase in judges, lawyers and administrative officials to properly adjudicate asylum claims. Biden should get credit for the reported increase of personnel on the border. But the only way to follow the law, act humanely, and organize the border is to give migrants their legal right to make their asylum case, judge it, and then make a determination about whether or not to allow them in. Any other policy — whether it's expelling millions of asylum seekers under the cover of an unnecessary health order or catching and releasing millions before properly processing them — ends in a disorderly or inhumane process, or both.

There are few priorities Congress and Biden should be putting ahead of this problem, and few excuses left to not overhaul the system entirely. Unfortunately, it looks like the best we're going to get is another patchwork of executive action, federal rules and disparate local enforcement. And as long as that is the case, the system will continue to deteriorate.

Have thoughts about "my take?" You can reply to this email and write in or leave a comment if you're a subscriber.


Your questions, answered.

Q: Why are Americans so afraid of immigrants coming to America? What is the real reason? We are a country built of immigrants.

— Kat, Allentown, Pennsylvania

Tangle: I think it is a combination of all the reasons you've probably heard: Jobs, racism, crime, and human nature. I'll say from the outset that I think the data is fairly conclusive that both legal and undocumented immigrants are much less likely to commit crime than citizens born in the U.S. What makes the issue so radioactive is that when an undocumented immigrant does commit a crime — like drunk driving or assault or murder — it often becomes front page news.

The data on jobs and wages is more contentious. There's plenty of evidence that employers will hire undocumented immigrants to keep wages low. There's also evidence that undocumented immigrants mostly take jobs Americans don't want. When you get into legal immigration, it becomes a lot trickier. Plenty of highly-skilled immigrants are taking desirable jobs in the U.S., but that is also the kind of immigration that many immigration restrictionists support. So it's a nuanced issue.

I think the single most important thing, though, is just human nature. We are basically hard wired to be wary of people who look, sound or act differently than we do, and to protect ourselves against perceived “outsiders.” That's the great challenge of America's cultural melting pot. And it's not just America. I think many U.S. citizens believe we are uniquely racist or uniquely anti-immigrant, and your question sort of implies that, too.

But the truth is really the opposite. Immigration restrictionists have prominent political power in most countries. Go ahead and explore the policies of basically any country in the world and you’ll find this. You can even look at the countries we have traditionally tricky immigration relationships with, like Mexico. Many Americans are familiar with the political factions here who are wary of or outright opposed to Mexicans immigrating into America.

But migrants arriving in Mexico from Haiti or Central America are also treated horribly. Polling shows that Mexican citizens don't want to grant asylum to Central Americans just as many Americans don't want to grant asylum to Mexicans. The anti-immigrant sentiments in Mexico are just as strong as they are here; in many European countries, they’re stronger.

So, yeah. It's complicated and multi-faceted. It’s certainly not as simple as jobs or xenophobia alone. And it is definitely not a uniquely American issue.

Want to ask a question? You can reply to this email and write in (it goes straight to my inbox) or fill out this form.


A story that matters.

President Biden announced a plan to release an additional one million barrels of oil per day from the nation's strategic petroleum reserve. The new plan is the latest administration effort to get control of rising gas prices. It's unclear how long the release will go on, but some expect it could last for several months. As we explained in our recent deep-dive, this is one way an administration can move the needle on gas prices. Oil dropped by $5 per barrel in a matter of minutes after news of the plan was released. The Associated Press has the story.


Numbers.

  • 1.7 million. The number of border encounters in Fiscal Year 2021, according to the CBP.
  • 977,000. The number of border encounters in Fiscal Year 2019, according to the CBP.
  • 46.2 million. The total number of legal and illegal immigrants in the United States.
  • 10.5 million. The estimated number of undocumented immigrants in the U.S. in 2017, according to Pew's latest research.
  • 59%. The percentage of Americans who say immigrants make the country stronger, according to a 2018 global Pew survey.
  • 34%. The percentage of Americans who say immigrants are a burden, according to a 2018 global Pew survey.

Have a nice day.

The Ukrainian soldier who went viral for cursing out a Russian warship has been returned home in a prisoner swap — and then awarded a medal. Roman Hrybov became a global sensation after a recording of him cursing out a Russian warship insisting he surrender Snake Island was shared online. Initial reports were that Hrybov had died alongside 13 other border guards on the island, but news outlets later discovered they had actually been taken prisoner. Ukraine's parliament then announced that there were actually 19 soldiers, and some had been returned to Ukraine in a prisoner swap while others were killed. On Tuesday, Hrybov received a medal in his hometown of Cherkasy for his actions on the island. The Guardian has the story.


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