White House Communications Director Kate Bedingfield unveiled the policy change at a briefing Wednesday, telling reporters that the move is being made on the recommendation of leading federal health authorities.
“This is a decision we have long outsourced to the CDC (Centers for Disease Control and Prevention),” she said. The CDC, saying it consulted the Department of Homeland Security, announced that the change would take effect in late May.
The time has come to dismiss Title 42: It was a bad policy under the Trump administration and it was a bad policy under Biden. Title 42 is legally questionable and morally untenable. Its use put migrants at risk on the dubious rationale of public health.
Title 42 is part of the 1944 Health Act, which prohibits people from entering the United States when there is a “serious danger of being introduced [a communicable] diseases in the United States ”. The Trump administration invoked this policy in March 2020, when the Covid-19 virus was spreading rapidly across the country and around the world with no vaccine in sight. Since then, US Customs and Border Conservation statistics show that 1.7 million migrants have been sent across the US southern border to Mexico or repatriated to their country of origin. From the outset, Trump’s invocation of title 42 was driven by politics, not by legitimate health concerns. when the Trump administration struggled to implement the law, the CDC physician who oversaw the regulation refused to comply. Instead, then-vice-president Mike Pence used his powers to issue a border closure order to migrants. Olivia Troye, Pence’s adviser at the White House, who later said that … has resigned from the Trump administration’s handling of Covid-19, denounced the measure as “special Stephen Miller” – a reference to a senior former Trump adviser known for his extreme anti-immigration stance. Title 42 has always been a border control measure masquerading as public health policy. Covid-19 was already raging in the United States before this policy went into effect, and the law has never been applied to air travelers or US citizens crossing the border. It was used only as an excuse to contain migrants who were mostly brown, black and economically weak. Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, said expelling migrants “is not the answer to the epidemic.” Meanwhile, an article in the New England Journal of Medicine last month found that “there is no public health evidence that singling out asylum seekers or other migrants … is effective in stopping the spread of Covid-19.”
In addition to being immoral and ineffective, the use of Title 42 as a border control measure is also likely illegal.
Under US law, asylum seekers have the right to apply for humanitarian aid. The United States is a signatory to international treaties that recognize similar rights for refugees. Title 42 trampled on these rights, allowing immigration authorities to expel migrants without giving them an opportunity to file for asylum. In 2021, the UN High Commissioner for Refugees called on Washington to abolish Title 42 so that migrants could gain access to the asylum process “in line with international legal obligations and human rights.”
Part of what made Title 42 so morally reprehensible is that it has put thousands of migrants in danger. The 2021 Doctors for Human Rights Research Team found that those expelled under the measure were subjected to violence after returning to Mexican border towns. And Title 42 was used inconsistently: refugees from Ukraine were allowed to apply for asylum at the border, and those from Haiti were expelled and sent to unsafe conditions at home. This blatant double standard is simply unacceptable.
Now that restrictions on Covid-19 have been lifted nationwide, there is even less justification for continuing to hold Title 42 as a US policy. For all these reasons, the annulment of Title 42 cannot be done quickly enough.
The Republicans will use this move by the Biden administration as evidence of an “open borders” policy. They will paint extermination scenarios of migrants crossing the border. However, GOP legislators have never proposed any constructive immigration or asylum solutions of their own. They prefer to torment when speaking about the so-called Biden border crisis.
What this country really has to deal with are decades of neglect and inappropriate conduct of US immigration policy by successive presidential administrations.
Granted, there is a backlog of migrants desperate to enter the United States, and many of them are likely to cross the border after Title 42 is canceled. But that doesn’t mean we should be afraid or demonized. The Biden administration is already working on contingency plans to prepare for the expected increase in border arrivals.
Two additional solutions could be recruiting more civilian workers in the processing centers and working with non-profit organizations that specialize in caring for vulnerable people. This will enable Border Guard officers to focus on their primary mission of securing the border and help ensure that migrants are treated with the compassion they need and deserve.
The United States has a legal obligation to help people escape danger and persecution. Now that the Biden administration is taking the long-overdue step towards abolishing Title 42, the United States can finally rebuild an asylum system that respects a fair trial and human dignity.