Opinion | Title 42 is indefensible. So is Congress’s failure to pass immigration reform. – The Washington Post
For more than two years, U.S. border agents have expelled thousands of unauthorized border crossers daily without affording them the chance to apply for asylum, a right enshrined in U.S. law and international treaties. About 2 million people have been turned back over the Mexican frontier since March 2020 in this manner, under a measure originally invoked by the Trump administration in the name of combating the coronavirus. That measure, known as Title 42, has been a border-control tool masquerading as a public health order. It needs to end.
The Biden administration is now preparing to lift Title 42. On the facts, the logic and the law, not to mention the politics — the pressure to scrap it from the Democratic base was intense — it had little choice. The truth is that covid-19 has waxed and waned in the United States for reasons having nothing to do with illegal immigration. In the face of that reality, using a public health measure as a pretext to choke off asylum processing is an act of cynicism.
That hasn’t deterred attacks by Republicans, for whom cynicism on immigration policy is a defining feature. The decision to lift Title 42, taken last month by the Centers for Disease Control and Prevention, has triggered lawsuits by GOP state attorneys general and calumny directed at Homeland Security Secretary Alejandro Mayorkas, who inherited a dysfunctional immigration system. Mr. Mayorkas is charged with managing the likely surge of lawless border-crossing expected to result from Title 42’s expiration, now scheduled for May 23 — if the courts allow it.
It is fair to doubt whether the administration is ready for the mess that might ensue. Last week, Mr. Mayorkas announced a more elaborate plan to deal with the possibility of thousands of additional daily border crossings than the skeletal blueprint that his department published earlier. It includes thousands of new beds in tent facilities to hold detainees, quicker processing of initial asylum claims and more rapid deportations of those whose claims are unfounded. That last provision is key. One reason that Title 42 has become flimsy as a deterrent to illegal entry is that migrants who are expelled under its authority suffer no ill consequences for repeated attempts to cross the border. Not so for formal deportees, who can be charged criminally if they reenter the country.
Whatever the numbers of migrant crossings that follow in Title 42’s wake, GOP lawmakers will use them to skewer Mr. Mayorkas and even amplify calls for his impeachment — a possibility some are now raising in the event that the party takes control of Congress after midterm elections this fall. That might be a fine piece of political theater; it would also be preposterous on the merits. Notwithstanding the Biden administration’s floundering performance and mixed messaging on the border, the real immigration policy failure has been Congress’s. Its proven inability over decades to enact meaningful reform has left the nation, and Mr. Mayorkas, to grapple with dysfunction.
