Vulnerable Senate Democrats undercut Biden on Title 42

Moderate Democrats are undercutting the Biden administration’s months of careful messaging on Title 42 that cast its retention of the Trump-era policy as a public health necessity rather than a border management tool. 

The Centers for Disease Control and Prevention (CDC) announced Friday it would on May 23 rescind the order that blocks migrants from seeking asylum in the U.S. as the country learns to mitigate the effects of the coronavirus pandemic.

But rather than view it as a public health victory, some moderate Democrats see a huge political liability, leaving them furious that the White House ended policy ahead of a tough midterm election.

In the days since the decision, Democratic Senate moderates have warned of chaos at the border, echoing talking points previously pushed largely by the GOP.

Sen. Joe Manchin (D-W.Va.) called it a “frightening decision.” Sen. Mark Kelly (D-Ariz.) called it “wrong.” And Sen. Maggie Hassan (D-N.H.) said the Biden administration “does not appear to be ready” for the surge in migration that could result. Kelly and Hassan both face difficult reelection battles in November.

For advocates who have long argued the policy was an illegal and inhumane holdover, moderate Democrats are finally saying the quiet part out loud.

“A lot of the pushback on Title 42 shows it has nothing to do with public health and is viewed purely as a migration deterrent policy, which is completely illegal. So a lot of those statements prove our point: that this policy had nothing to do with public health and everything to do with evading U.S. refugee law,” Kennji Kizuka with Human Rights First said.

The friendly fire is in many ways a result of the Biden administration’s failure to define the Trump-era policy for itself, at once decrying it as a bad immigration tool and defending it as a public health necessity.

Few observers believed either the Trump or Biden administrations’ insistence on the public health reasoning, but the growing debate over Title 42 gave the policy notoriety that is now being exploited by Republicans as a political cudgel.

It’s forced vulnerable Democrats up for reelection this year to break from colleagues who have spent months furious with the Biden administration for keeping the policy in place.

“I am concerned that there is not a sufficient plan in place to address the steep increase in border crossings that could result from this reported decision,” Hassan said even before the move was formally announced. 

“This preemptive repeal threatens border security at a time when the administration should be focused on strengthening it.”

Others have likewise talked about the policy almost exclusively in migration terms.

“I think this is not the right time, and we have not seen a detailed plan from the administration. We need assurances that we have security at the border and that we protect communities on this side of the border,” Sen. Raphael Warnock (D-Ga.), who is also in a tight race, said. “I think this is the wrong time, and I haven’t seen a plan that gives me comfort.”

And Sen. Catherine Cortez Masto (D-Nev.) blasted the decision despite previously signing on to letters pushing to rescind the Trump-era policy.

“This is the wrong way to do this and it will leave the administration unprepared for a surge at the border,” she said in a statement this week.

“We should be working to fix our immigration system by investing in border security and treating immigrant families with dignity. Instead, the administration is acting without a detailed plan.”

Cortez Masto joined a letter written just a few months into the Trump administration’s use of Title 42 that referred to it as the “CDC asylum ban” and warned it was “designed to further an ongoing agenda to exclude asylum seekers.”

In announcing why she signed on to the letter Cortez Masto, said former President Trump had “dismantled the United States’ asylum system” and called for the policy’s reversal.

While most observers expected Democratic senators like Manchin and Sen. Kyrsten Sinema (Ariz.) to oppose the termination of Title 42, many were surprised to see the likes of Cortez Masto and Warnock jump on the border security bandwagon.

Immigration advocates have spent the last year blasting the Biden administration over its continued use of Title 42, warning the policy could be a factor in depressing the turnout of immigration-conscious voters in November.

The issue could play a crucial role among Hispanic voters in states like Arizona, Nevada or Georgia, where the Latino vote could tip the scales in close Senate elections.

“Just about any Democrat in America today needs Latinos to vote for them to win an election, and Latinos are following the Title 42 stuff pretty closely,” said Kristian Ramos, a Democratic strategist and founder of Autonomy Strategies.

“They care about immigration. They care about making sure that our country is honoring our tradition of always helping those who needed help. And they’re watching, they’re listening and they’re seeing who’s on their side and who isn’t,” added Ramos.

And the Biden administration’s repeated claims that Title 42 is a public health provision have fallen on deaf ears, meaning senators opposing its termination will essentially be arguing in favor of blocking the right to asylum.

“Most people commenting on Title 42 have abandoned the pretense that it’s about public health and not immigration, and we have to remember that the CDC doesn’t have the authority to set our immigration law,” said Aaron Reichlin-Melnick, policy counsel with the American Immigration Counsel.

“And those calling for keeping Title 42 in place as an immigration deterrent don’t care about Title 42 because of public health, but want to keep it in place because there are too many people that want asylum.”

Sen. Jon Tester (D-Mont.) was one of the few to nod to the pandemic while expressing concern over the effect on the border.

“Ending Title 42 is expected to cause a significant increase of migration to the United States and put more pressure on an already broken system. These problems do not only affect the southern border, but put more strain on those working to secure the northern border as well,” he wrote in a letter to the Department of Homeland Security (DHS) asking how it plans to address staffing shortages and ensure that too many personnel are not diverted from the northern border.

“Title 42 is an emergency order and should not stay in effect indefinitely, especially as we continue making headway in combating the COVID-19 pandemic. But we should not end this policy without ample preparation,” Tester added.

Calls for the administration to prepare for an upcoming surge at the border are most likely attempts at a preemptive remedy assuming a migratory uptick does materialize, whether spurred by the termination of Title 42 or not.

DHS, while acknowledging higher border apprehension numbers are likely, has tried to shift focus toward expansion of asylum processing and better border management, regardless of immigration numbers.

But vulnerable Democrats are unlikely to stop Republican attacks by targeting the administration’s termination of Title 42.

“Republicans are always going to be embracing fear and demagoguery on this issue. Democrats should expect that. Democrats need to stand up for what they believe in or the convictions many of them are stated in the past that they stand for. We have to show we care about and where our values are,” Ramos said.

And Republicans vowed to strike at vulnerable Democrats despite their criticism of Biden’s move.

“It’s too little too late for Democrats trying to change course with empty rhetoric. Vulnerable Democrats are trying to distance themselves from Biden’s failure that they enabled, but voters know they are in lockstep with Biden’s agenda,” said Republican National Committee spokeswoman Nicole Morales.

Regardless of Title 42, border management will remain a challenge for the Biden administration and beyond, border and migration experts said.

“There are no silver bullets, no buttons that can be pushed, no wands that can be waved. You cannot solve this problem overnight, and we need to have a conversation with the American public about that,” Reichlin-Melnick said.

—Updated at 12:41 p.m.