A man stands at the wall that divides Mexico from the United States at Tijuana Beach.
For a brief moment last week, it looked as if Congress might actually fulfill, in part, the basic responsibility of keeping Americans safe in an emergency. A $10 billion deal was reached to restock supplies of COVID vaccines, therapeutics, and tests, using revenue from canceling previously issued relief funds. It’s ridiculous that the government needs to “pay for” lifesaving items, and worse, funding for global vaccines was left on the cutting-room floor, taking the “pan” out of pandemic and ensuring fertile breeding grounds for more mutations that will eventually come ashore.
But just when we were celebrating with the tiniest of flags Congress’s ability at least to minimally function, even that ground to a halt.
The pandemic funding vote, which the Senate attempted to squeeze in before confirming Justice Ketanji Brown Jackson, was abandoned, because Republicans sought an amendment to extend the Title 42 policy at the U.S.-Mexico border. Title 42 allows the Centers for Disease Control and Prevention (CDC) to expel migrants and asylum seekers through the Public Health Service Act of 1944, a measure initially intended to prevent tuberculosis outbreaks. It has been in effect to stop the spread of COVID-19 for two years, but the administration has announced it would end on May 23.
An amendment extending Title 42 would likely pass, as a handful of Senate Democrats also oppose lifting the order, in a rebuke to the administration. Five Democrats and six Republicans have signed on to one bill that would block the expiration without a detailed plan from the Department of Homeland Security. A separate bill from ten Senate Republicans would simply extend Title 42 until February 2025.
This is clearly an election-year proxy fight about immigration and border security. But when you break it down, it’s an astounding fight for Republicans to wage. For well over a year, Republicans have been resisting pandemic restrictions with a unified voice, from mask and vaccine mandates to school closures. They have called these safety measures an impingement on American freedom, and lauded no-restriction zones in states like Florida as a refuge from tyranny. On March 3, all 48 Senate Republicans in attendance voted for a resolution to end the federal COVID state of emergency that has been in effect since March 2020.
Yet this one pandemic restriction, this order to safeguard Americans from COVID, must stay in place, Republicans insist. Only noncitizens traveling into the U.S. at a land or coastal port of entry without proper travel documents are impacted. Though someone entering the U.S. on a travel visa could just as easily have COVID, though a U.S. citizen could also enter the country from abroad while infected, only noncitizens are singled out. Once in the country, no person should experience any infringement on their life due to the virus, Republicans maintain. But while entering the country, this one subset of travelers should be forcibly removed, for the stated purpose of maintaining public health.
“The biggest lie in Washington today is that Title 42 is a public-health issue,” said Frank Sharry, founder and executive director of the immigration advocacy group America’s Voice. “It’s a pandemic restriction for Black and brown people. This is a backdoor attempt by Republicans to end asylum as we know it.”
THE PROSPECT SENT QUESTIONS to all 15 Senate Republicans who are co-sponsors of the two bills (one, Sen. Thom Tillis of North Carolina, is a co-sponsor of both), asking them what other pandemic restrictions they support, given their explicit concern over the spread of the virus at the border. These questions were also sent to Senate Minority Leader Mitch McConnell (R-KY), and all five Senate Democrats—Sens. Kyrsten Sinema (D-AZ), Mark Kelly (D-AZ), Maggie Hassan (D-NH), Joe Manchin (D-WV), and Jon Tester (D-MT)—who joined Republicans on one of the two Title 42 bills.
Of those 21 queries, only two Senate offices responded. Ansley Bradwell, a spokesperson for Sen. Marco Rubio (R-FL), who introduced the bill that would extend Title 42 to 2025, simply sent a link to a story from Breitbart, ominously warning of the “biggest migration crisis in U.S. history” if Title 42 expires. When the Prospect explained that Title 42 is a public-health restriction designed to prevent pandemic spread, and reiterated the question of what other pandemic restrictions Sen. Rubio supported, Bradwell did not respond.
Title 42 was rather obviously imposed by the Trump administration and its ringleader on immigration policy, Stephen Miller, to essentially bar immigration at the border.
The other response came from the office of Sen. James Lankford (R-OK), co-author of the bipartisan Title 42 bill. Lankford does not support any pandemic restrictions; he has said that if the administration wants to lift Title 42, “then it must be safe enough to lift the COVID-19 state of emergency on the whole country.” But Lankford has also said that his vote last month to end the national emergency doesn’t change the need for Title 42; he wants a plan from the Department of Homeland Security (DHS) to secure the border first.
It is here where Lankford, some Democrats, and even immigration advocates are in a strange form of agreement. In different ways, they’ve all criticized the brief summary DHS has provided on how to deal with an influx of migrants after Title 42 ends as insufficient, both as policy and as politics. Advocates are disappointed in the administration’s relative silence on immigration over the past several months. “They don’t want to talk about it because it brings mainstream media coverage of the right-wing narrative,” said Sharry.
The muddle has left progressive Democrats angry and moderate Democrats exposed, and rebellious against the White House’s lifting of the provision. For their part, conservative state attorneys general are likely to bring Title 42 to a Trump-friendly judge in a bid to get it extended. A similar tactic and a court order led the Biden administration to reimpose the “Remain in Mexico” policy, which forces asylum seekers to stay outside the country in hazardous conditions while their claim is reviewed. The not-so-conspiratorial take expressed by some advocates is that the administration wouldn’t mind having to do the same for Title 42.
In response to questions from the Prospect, a White House official stressed that they introduced an immigration bill in January that addressed border security, and that the CDC is responsible for determining the status of Title 42. “DHS has been very transparent about the planning it’s doing to anticipate what the border/processing could look like” after Title 42 expires, the official added.
TITLE 42 WAS RATHER OBVIOUSLY imposed by the Trump administration and its ringleader on immigration policy, Stephen Miller, to essentially bar immigration at the border. Over 1.7 million migrants have thus been denied entry without a hearing. The subsequent declining immigration rates since the pandemic have contributed to labor shortages in key industries and harmed Americans who rely on those services.
Some of that 1.7 million is based on double-counting migrants who attempt to cross multiple times. That context is left out of the caterwauling from the right about an uptick at the border. Similarly, claims that migrant crossings are responsible for a surge into the country of the deadly drug fentanyl omits the inconvenient fact that almost all of the drugs come in through passenger vehicles and trucks.
The public-health case for Title 42 is similarly wrongheaded; leading epidemiologists cannot confirm whether it prevents COVID spread in any way. Other experts have noted that in expelling asylum seekers, border officials place them in close contact for several days, which could increase infections.
Advocates initially praised Biden for overturning several Trump policies at the border after his election, though not for keeping Title 42. The issue proved contentious and led to infighting among White House policymakers. Most of the aides who were key links to advocacy groups have left the administration in frustration.
Crossings rose after a court decided that unaccompanied minors were not subject to the Title 42 order. The administration tried to manage this, until the spectacle of thousands of Haitians in Del Rio, Texas, being brutally beaten by Border Patrol agents created a media firestorm. In response, the White House “reverted to the typical playbook,” Sharry said, by cracking down on border entries, even from countries like Haiti, whose immigrants have Temporary Protected Status. (Many Haitians are now attempting entry through the Florida Keys.)
The current perceived double standard at the border, where Ukrainian immigrants are allowed in but asylum seekers from other countries are not, has added to dissatisfaction. Cuban refugees, who are arriving at the Mexican border in large numbers, also typically are not expelled under Title 42.
Meanwhile, the conservative noise machine has seized upon statements from federal officials that as many as 18,000 migrants will cross the border per day once Title 42 ends. Lankford upped the numbers, claiming that one million migrants will reach the border in six weeks.
This has put vulnerable Democrats seeking re-election in November, who mostly want the bad headlines in their states to stop, in a tough spot. Even Democrats not on the main bill to prohibit the termination of Title 42, like Sens. Mark Warner (D-VA), Raphael Warnock (D-GA), and Catherine Cortez Masto (D-NV), have spoken out against it.
The Lankford-Sinema bill prohibits the termination of Title 42 without “a plan to address any possible influx of entries.” The nature of that plan is vague; a Lankford spokesperson would only say that the government would have to secure the border and follow the law. Such parameters mean different things to different members of Congress; the White House could satisfy Democrats on this front and still face a roadblock from Republicans, whose votes would ultimately be needed to pass pandemic funding legislation in the Senate.
So far, Republicans have only demanded an amendment addressing Title 42; if that amendment is brought up for a vote and it loses, it’s not clear whether Republicans will take down a funding deal they negotiated. Democrats will try again in the Senate after a two-week Easter recess. As pandemic funding is vital for preparedness in the event of another variant, the health of millions potentially hangs in the balance of a perennial fight about immigration. The White House official insisted that the need for funding was “urgent” and already truncated by Congress. “If we do not have treatments, vaccines, or tests,” the official said, “Americans will die from COVID whether they support or oppose the administration on immigration.”
David Dayen is the Prospect’s executive editor. His work has appeared in The Intercept, The New Republic, HuffPost, The Washington Post, the Los Angeles Times, and more. His most recent book is ‘Monopolized: Life in the Age of Corporate Power.’
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