EDITORIAL: Title 42 a sad substitute for real immigration policy
Supreme Court intervention delays the inevitable.
January 3, 2023 - 9:01 pm
The U.S. Supreme Court did the Biden administration a favor when it ruled the White House could continue to use pandemic powers to turn away migrants who might otherwise qualify for entry. The decision makes it easier for the president to keep dawdling over the border crisis.
When the pandemic began, the Trump administration invoked Title 42, an obscure codicil of a 1944 public health law, to expel many of those entering the country illegally under the premise that the rule would help limit the spread of COVID. While President Joe Biden attacked Mr. Trump’s “inhumane” approach at the border, he has continued and even expanded the policy rather than do the heavy lifting necessary to reach a political compromise on immigration.
The New York Times reports that Title 42 has been used 2.5 million times in the past three years.
But on what basis is it legal to use a public health emergency statute as a de facto immigration tourniquet when the public health emergency no longer exists? Many Republicans seek to keep the measure in place as a means of limiting chaos at the southern border and stanching the flow of illegal entrants. Meanwhile, the White House — while publicly vowing to end the policy — has cynically embraced Title 42 to cover its failures and avoid further political backlash for a mess of its own creation.
“This is not about the pandemic anymore,” Kyle McGowan, chief of staff for the Centers for Disease Control and Prevention under Mr. Trump, told the Times. “This is what 20-plus years of Congress’s inaction to address immigration looks like.”
In December, a federal court rejected efforts by a handful of Republican governors to stop the Biden administration from terminating Title 42. Just weeks later, however, a divided Supreme Court voted to stay that ruling until it considers in February whether the governors have standing to intervene. But Justice Neil Gorsuch, who sided with the three liberal justices in the minority, saw through the ruse.
“The current border crisis is not a COVID crisis,” he wrote in dissent. “And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency.”
The issue isn’t whether lifting Title 42 would worsen the problem at the border. It’s whether the Biden administration has the legal authority to wield the policy long after the public health emergency has evaporated. Had the justices called Mr. Biden’s bluff on terminating Title 42, it would have put immense pressure on the White House and Democrats to seriously engage on the immigration crisis or risk exacerbating an already untenable situation. As it is, the justices have allowed Congress and the administration to do what they do best: kick the can farther down the road.