Democrats fractured on response to end of Title 42

The Biden administration’s decision to end to Title 42, a Trump-era policy restricting asylum claims, garnered a fractured response from Democratic lawmakers, advocates and the administration itself.  

Progressives and immigration advocates lauded the decision, arguing it was long overdue after President Biden pledged to end the rule during his 2020 campaign.  

However, moderate Senate Democrats issued a rebuke of the recission, claiming that the administration is not ready to manage a surge of migrants they say will come once the rule is nixed.   

The administration rescinded the rule on Friday, and administration officials distanced themselves politically from the decision, which they said was motivated by public health considerations. 

Under Title 42, which is slated to end May 23, migrants at the border were summarily expelled from the country, rather than being processed under regular immigration rules and allowed to exercise their right to claim asylum. 

The Biden administration used Title 42 around 1.7 million times, sometimes returning individuals back to Mexico on the same day, sometimes taking weeks to repatriate men, women and children to dangerous conditions in Haiti. 

While some Democrats openly celebrated the administration’s decision and called it a win, top Biden administration officials adopted a much more somber tone, warning the move could trigger an influx of migrants. 

“We have put in place a comprehensive, whole-of-government strategy to manage any potential increase in the number of migrants encountered at our border,” said Homeland Security Secretary Alejandro Mayorkas in a statement. 

Technically, Centers for Disease Control and Prevention (CDC) Rochelle Wollensky had sole authority to keep or remove Title 42, but few observers believe health care to be the true reasoning behind the policy. 

“It was increasingly hard to hear anybody with a straight face say this is completely about public health and not about immigration,” said Theresa Cardinal Brown, managing director of immigration and cross-border policy at the Bipartisan Policy Center. 

Brown added that migrants were expelled under Title 42 depending on various factors like their place of origin, “without regard to, honestly, the health risks from any particular group.” 

Still, top administration officials defended the sanitary reasoning both for keeping Title 42 for so long, and for announcing its upcoming end. 

“Title 42 is not an immigration authority, but rather a public health authority used by the Centers for Disease Control and Prevention to protect against the spread of communicable disease. Title 42 remains in place until May 23 and, until then, [the Department of Homeland Security] will continue to expel single adults and families encountered at the Southwest border,” said Mayorkas. 

Senate Majority Leader Chuck Schumer (D-N.Y.) was a leading critic of the Biden administration’s continued use of Title 42. 

Those critics were quiet shortly after the announcement, while other Democrats who were more reserved in picking a fight with the White House quickly came out to cheer the decision. 

“Today is a bright spot in our nation’s history with the end of the Trump-initiated Title 42 policy,” said Congressional Hispanic Caucus (CHC) Chair Rep. Raúl Ruiz (D-Calif.) in a statement. 

“The CHC repeatedly called for the end of this policy, which was fueled by Trump’s anti-immigrant hate and fear agenda that used the pandemic as an excuse to deny asylum seekers their legal right to due process,” he added. 

Progressives also celebrated the decision, crediting the Biden administration with doing the “right” and “moral” thing.  

“This is a momentous day for immigrant rights activists, and immigrants and refugees everywhere. Title 42 was a cruel and discriminatory policy that circumvented U.S. law, preventing people from accessing protections established by Congress,” said Congressional Progressive Caucus Chair Rep. Pramila Jayapal (D-Wash.) in a statement. 

“Today is the product of years of advocacy from both inside and outside Congress. I’m thrilled to see the Biden Administration do the right and moral thing by ending this extremely harmful, xenophobic, and shortsighted policy that disproportionately impacted Black and Brown migrants,” added Jayapal. 

Other progressives celebrated the announcement, withholding praise for administration officials. 

“After consistently calling on President Biden to end Title 42, I’m relieved to see the Administration has finally heeded our calls. Asylum seekers and their allies in the movement and in Congress have been organizing day in and day out to repeal this harmful policy,” said Rep. Ayanna Pressley (D-Mass.) 

“This long-overdue action will undoubtedly save lives and is a critical step towards building a fair and effective asylum system for all,” she added. 

Rep. Raúl Grijalva (D-Ariz.) took on a more diplomatic tone, neither celebrating nor criticizing the administration, but calling for a border management reset. 

“The Biden administration must use this transition period to continue to address the longstanding backlog in the courts and the implementation of a comprehensive immigration plan that addresses not only enforcement, but rebuilds an asylum-seeking system that is just and humane,” said Grijalva in a statement. 

Some Democrats, however, came out hard against the rescission of Title 42, arguing that move would be disastrous for border management. 

Sen. Joe Manchin called its striking “a frightening decision” for an administration “nowhere near prepared” for an influx at the border. 

Both of Arizona’s Democratic senators sounded similar notes.  

“This is the wrong decision. It’s unacceptable to end Title 42 without a plan and coordination in place to ensure a secure, orderly, and humane process at the border,” Sen. Mark Kelly wrote. 

Sen. Kyrsten Sinema said the decision to end Title 42 “despite not yet having a comprehensive plan ready shows a lack of understanding about the crisis at our border.” 

Sen. Maggie Hassan (D-N.H.) who is up for reelection this year, also weighed in on Title 42 twice this week, saying Biden lifting the order “prematurely” would likely lead to a migrant surge “that the administration does not appear to be ready for.” 

Democratic Sens. Bob Menendez (N.J.) and Corey Booker (N.J. stated that while they supported the end of Title 42, but believed that it should be done in phases.

“While we support ending Title 42, extending this policy until the end of May will only incentivize more irregular migration to the border and create an unnecessary bottleneck effect when it finally sunsets,” they wrote.

“We hope the administration will expand exemptions to the original order and start lifting Title 42 in phases,” they added.

But amid the varied reactions, there is little data on whether the end of Title 42 will in fact cause a surge of migrants at the border, or how the Department of Homeland Security will deal with changing migration patterns.  

“As an immigration person, I’m thinking I still have no idea what’s going to happen to any individual person encountered,” said Brown, a former policy advisor at Customs and Border Protection (CBP).