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After Title 42

Americans shouldn’t have to rely on a public health crisis for their government to maintain control over the nation’s borders.

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Thus far, President Joe Biden’s administration has tried, and failed, to kill immigration restrictions in place thanks to Title 42.

On Monday, The American Conservative published a brief explainer from Peter Van Buren on what Title 42 is, where it currently stands, and how reliant the nation has become on the provision to prevent the border from becoming even more overrun. 

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“Title 42 stopped some 2.4 million would-be immigrants,” Van Buren claims in his piece. “The states have argued that they will suffer ‘irreparable harm’ if Title 42 ends and migrants stay in the U.S. for longer periods of time. Between 9,000 and 14,000 people are expected to cross the southern border each day after Title 42 ends. (Border crossings are now at around 7,000 a day.) The final decision will lie with the Supreme Court this spring.”

We’ll see where the Court comes down regarding the niche procedural arguments surrounding the case, such as whether or not the administration’s actions were in accordance with the APA. I’m not a lawyer, thank heavens. My view on Title 42 is quite simple: it has to stay in place until the federal government ends the Covid-19 public health emergency, which was just extended another 90 days last week. The Biden administration can either take more control of the government’s immigration policy, or keep the pandemic emergency orders in place that has allowed the Biden administration to do a number of things, from expanding Medicaid to forgiving student loans. Of course, I don’t want the Biden administration to wield much authority over either, but they sure as hell shouldn’t be able to have both.

What former White House press secretary Jen Psaki told the public was just a seasonal surge when the Biden administration came into power has turned into two straight years of record-breaking levels of migrant crossings. The U.S. Customs and Border Protection data is quite clear: A massive spike in migrant crossings followed Biden, who promised on the campaign trail to halt deportations, coming into power. The numbers are shocking, and without Title 42, they would have been much worse. 

But the almost total reliance on Title 42 to maintain a semblance of control over its southern border poses a real challenge for Republicans who’ve managed to strip back some power from the Democrats by taking the House. Republicans must find a way to hold the Biden administration accountable for the mess it has made of the southern border that doesn’t rely on forever Covid. 

There are ways that Republicans could apply pressure in hearings that are sure to follow this Congress, such as invoking section 212(f) of the Immigration and Nationality Act (INA) that says Biden has the prerogative to clamp down on classes of migrants even absent a public health crisis. I don’t expect the Biden administration to take Republicans’ advice, but Republicans ought to make it abundantly clear that the lawlessness and chaos on our southern border isn’t something merely happening to the Biden administration while it is in power, it’s a conscious policy choice.

Efforts to secure our southern border shouldn’t just be a consequence of an exceptional time in American political life—it's a prerequisite of being a nation, a prerequisite of there being a uniquely American political life at all.

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