A controversial Trump-era policy that has allowed the US to expel migrants en masse is ending Thursday, radically altering US immigration policy at a moment that’s seen an increasingly large influx of migrants at the southern border.
The so-called Title 42 policy was first implemented by former President Donald Trump using emergency powers granted to the executive branch in the event of a public health emergency. Trump, and later President Joe Biden, claimed — on dubious grounds — that migrants needed to be turned away to help prevent the spread of Covid-19. Biden’s choice to continue the policy for more than two years, despite the pandemic waning, has led to lawsuits and the resignation of a senior administration official, and has become a political flashpoint on the left.
Keeping Title 42 in place solved a problem for the Biden administration: It summarily got rid of migrants that the US is not equipped to humanely process and absorb. The policy has allowed the US to expel migrants more than 2.8 million times since 2020, with many being expelled multiple times after reattempting to cross the border.
Biden warned reporters Tuesday that it’s “going to be chaotic for a while” on the border following the expiration of Title 42. The Biden administration has been planning for more than a year for the policy’s end, including by establishing new protocols for processing asylum seekers, creating new legal pathways to the US, and bulking up on resources at the border.
Some critics have argued that the administration hasn’t gone far enough in preparing; others have accused the executive branch of being too draconian and are attempting to use the courts to block Biden’s new policies. When asked whether the administration is prepared for the influx, Biden said “it remains to be seen.”
“We’re doing all we can,” he said.
Here’s what you need to know about the policy and what it means for migrants, the border, and the 2024 campaign.
What is Title 42, and why is it ending?
Title 42 is a previously little-known section of US health law that allows the US government to temporarily block noncitizens from entering the US “when doing so is required in the interest of public health.”
When the Trump administration invoked Title 42 in March 2020 at the outset of the pandemic, White House officials argued that it had been recommended by public health officials to prevent the spread of Covid-19 among migrants in crowded Border Patrol stations.
But public health officials weren’t the ones pushing the policy. In fact, there was notable outcry from public health experts about the wisdom and potential effectiveness of the policy. Instead, the effort was led by Stephen Miller, a former senior adviser to Trump and the chief architect of his nativist immigration policy, which focused on reducing overall immigration levels to the US, at times by deliberately cruel means. Even before the pandemic, Miller had been looking for opportunities to use Title 42 to expel migrants, including when there was a mumps outbreak in immigration detention and flu spread in Border Patrol stations in 2019.
The policy has effectively shut out migrants arriving at the southern border from legal pathways to enter the US, with some limited exceptions. Before Title 42, migrants would have been processed at Border Patrol facilities and evaluated for eligibility for asylum and other humanitarian protections that would allow them to remain in the US. Migrants have a legal right, enshrined in US and international law, to seek asylum. But under Title 42, migrants are returned to Mexico within a matter of hours and without any such opportunity.
Biden refused to roll back the policy for more than a year as a means of managing the border. When the administration finally moved to end the policy last May, Republican attorneys general challenged the decision, arguing that it had been rushed and would potentially trigger a surge of migrant crossings in their border states. Courts have since delayed the policy’s expiration, but now that the national emergency related to Covid-19 is ending Thursday, so too is any public health rationale for keeping Title 42 in place.
The state of play at the border right now
Homeland Security Secretary Alejandro Mayorkas warned in a press conference Wednesday that, even after two years of preparation, his agency was still expecting large numbers of migrants at the southern border in the days and weeks following Title 42’s expiration.
“We are already seeing high numbers of encounters in certain sectors,” he said. “This places an incredible strain on our personnel, our facilities, and our communities with whom we partner closely. Our plan will deliver results, but it will take time for those results to be fully realized.”
On Tuesday alone, 11,000 migrants were intercepted while trying to cross the border without authorization, up from an average of about 6,000 daily in March, the latest month for which data is available. The administration has previously projected that unauthorized crossings could spike as high as 13,000 a day in Title 42’s absence.
The current level of migrant crossings is already stretching DHS’s resources. NBC reported that the administration had temporarily started releasing migrants Wednesday for fear of overcrowding in DHS facilities — which were already well above their 18,500-person capacity — without giving them a date to appear in court or having any means of tracking them.
Biden’s plan to manage the southern border
Biden has expanded lawful pathways for migrants to come to the US with the aim of reducing pressure on the southern border. The Biden administration has already created a program under which the US-based family members of migrants from Venezuela, Haiti, Cuba, and Nicaragua — who have arrived in increasingly large numbers at the southern border in the last year — can apply to bring them to the US legally.
The administration has outlined a plan that involves opening new processing centers in Central and South America where migrants can apply to come to the US, Spain, or Canada legally. It’s unclear, however, when those processing centers will open. It has also pledged to accept 100,000 people from El Salvador, Guatemala, and Honduras under another family reunification program.
Some of those programs have proved successful. But they’re still not enough on their own to meet the current need for legal migration channels, after years in which Trump administration policies created pent-up demand, said Doug Rivlin, a spokesperson for the immigrant advocacy group America’s Voice.
“That’s not enough. And it can’t replace the need to have a functioning asylum system at the border,” he said.
To that end, the administration is also planning to speed up processing on the border, quickly identifying individuals who have valid asylum claims and turning away those who don’t. Those who cross the border without authorization will be barred from legally reentering the US for five years.
Biden is surging personnel to the border to make all of that happen, including 1,400 DHS staffers, 1,000 asylum officers, and an additional 1,500 active-duty troops on top of the 2,500 military personnel already at the border, Mayorkas said. DHS has assured that the troops would be “performing non-law enforcement duties” — including “detection and monitoring, data entry, and warehouse support” — and would not “interact with migrants.”
“All of these individuals will allow our law enforcement officers to stay in the field and focus on their critical mission,” Mayorkas said.
A new rule, set to go into effect when Title 42 ends Thursday, and the subject of a lawsuit from immigrant advocates, will also restrict access to asylum in the US for individuals who cross through another country without first applying for protections there. It is likely to face court challenges and could very well be overturned.
“This rule will only jeopardize the lives of people seeking safety and create even more chaos and as the administration well knows, it’s also blatantly illegal,” Melissa Crow, a litigator at the Center for Gender and Refugee Studies, said in a press call. “Essentially, the new rule combines and repackages to Trump-era asylum bans that President Biden himself denounced on the campaign trail [and that] were struck down as unlawful in federal court.”
Though the Biden administration is releasing some people into the US on an ad hoc basis for now, it is establishing a new program that will allow it to track migrant families released into the US and subject to fast-tracked deportation proceedings, including by requiring them to abide by a curfew and stay in one of four cities.
Congress’s solutions to the end of Title 42
Mayorkas said Wednesday that the pressure placed on the border by the end of Title 42 is a direct result of Congress’s failure to pass new immigration laws. He also said that the agency had requested additional funding in December, but lawmakers only delivered about half of what was needed.
“I cannot overemphasize that our current situation is the outcome of Congress leaving a broken, outdated immigration system in place for over two decades, despite unanimous agreement that we desperately need legislative reform,” he said.
The House GOP and a bipartisan group of senators, including centrist Democrat Joe Manchin and independent Kyrsten Sinema, have recently put forth legislative proposals to bolster border security.
The GOP proposal, which is expected to go to a House vote Thursday, would continue building the wall on the southern border that Trump started, and end the program that has allowed the Biden administration to fast-track the processing of migrants from Venezuela, Haiti, Cuba, and Nicaragua. It would also make it harder for migrants to apply for and receive asylum, introducing a $50 fee and making the criteria stricter.
The bipartisan Senate proposal would essentially replace Title 42 with a substantially similar program, allowing the federal government to rapidly expel migrants who cross the border without authorization for a period of two years.
Biden has already threatened to veto the GOP proposal if it is passed, and Kerri Talbot, deputy director for the immigrant advocacy group Immigration Hub, said that the Senate bill isn’t any more likely to become law.
“There is no way that that bill will see the light of day on the Senate floor,” she said. “It’s just not going to have bipartisan support because it doesn’t provide enough protection to asylum seekers.”
The primary purpose of those bills might be messaging, but it’s possible that different legislation designed to fill the gaps in DHS’s funding could actually draw bipartisan support. That could come either through ongoing negotiations over the budget or through a separate, supplemental spending bill, as Rep. Ruben Gallego (D-AZ) has proposed.
Democrats are starting to line up behind Gallego’s proposal. “We need to modernize those ports, we need to invest in processing immigrants. And we need to invest in the border organizations that are doing the work of connecting people and making sure they get to where they need to go, making sure they’re housed and fed,” said Rep. Pramila Jayapal (D-WA), the ranking member on the House immigration subcommittee.
And while some Republicans, including Texas Sen. John Cornyn, have already come out against supplemental funding absent additional border reforms, others have said they are open to the idea.
What Title 42’s expiration and the influx of migrants mean for the 2024 election
Biden came into office following a campaign in which he promised to renew the US’s focus on protecting vulnerable immigrant populations. And he began his tenure making an effort to distinguish himself from Trump’s cruelty on the border as well as the harsh immigration enforcement policies of the Obama administration, which oversaw record deportations.
But the issue has proved intractable, in part because Republicans have used the border as a political cudgel against the president. In a CNN town hall Wednesday night, Trump said that Thursday, the day Title 42 ends, was “going to be a day of infamy” and accused Democrats of “destroying our country” by letting it expire. In recent months, some members of the GOP have called for the impeachment of Secretary Mayorkas, and the Republican-controlled House launched an investigation of Biden’s border policies.
Even if Republicans fell short of expectations in border districts amid a lackluster midterm performance nationally, they were able to narrow the margins in south Texas with their messaging on immigration in 2022. They may be looking to double down on that strategy ahead of 2024.
“There’s been a lot of glee on the part of Republicans to have people coming to the border,” Rivlin said.
But even consensus among Democrats has proved hard to come by. Progressives and those who have long been working on immigration issues have been openly critical of the president’s move to further militarize the border. But some vocal moderates have advocated for a continuation of Title 42 or something like it. That includes Manchin and Sinema, as well as Sen. Mark Kelly (D-AZ), who has recently called for tougher border security measures. He proposed increasing the number of Border Patrol agents, improving technology at the border, and constructing new barriers in places “where they make sense” to deter unauthorized crossings.
“I think that the vast majority of the Democratic caucus actually is united,” Jayapal said. “When there are specific proposals that are just about the border, then it becomes very difficult because people don’t want to be called ‘soft on the border.’”
Ahead of 2024, Biden has been wary of the same criticism being levied against him. And absent the possibility of congressional action, he’s in a tough position to defend politically. Polls conducted in the first months of 2023 have repeatedly shown that voters are divided over Biden’s strategy on the border. An April poll by Global Strategy Group, for instance, found that more than half of voters across seven battleground states disapproved of his handling of immigration and thought that he was ignoring problems at the border.
“House Republicans are showing their hand this week with their extreme legislation. They’ve made it clear they don’t plan to be reasonable and come to the table and seek real solutions,” Talbot said. “So unfortunately, it’s left to the agency to do the best they can with the resources that it has.”
Correction, May 11, 2:45 pm ET: An earlier version of this story misstated Kyrsten Sinema’s party affiliation.
Updated, May 12, 1:30 pm ET: This story, originally published on May 11, has been updated to reflect the lawsuit the Biden administration faces over its new policy of limiting certain migrants’ access to asylum proceedings.