Title 42: Health protection law or border control measure to impede asylum seekers?

STARKVILLE — Frankly, neither Republicans nor Democrats hold much moral high ground on the issue of immigration. Historically, the issue has been a political football with both parties talking a lot but not taking much action in the halls of Congress.

The White House – whether occupied by Democrats or Republicans – isn't much better. And increasingly, Pew Research Center data indicates the two political parties are more closely aligned on the immigration issue than one might think.

In a November survey, Pew revealed: “Republicans and Democrats differ over the most pressing priorities for the nation's immigration system. Republicans place particular importance on border security and deportations of immigrants who are in the country illegally, while Democrats place greater importance on (creating) paths to legal status for those who entered the country illegally – especially those who entered as children.”

But it is important to note that both Republicans and Democrat majorities told the Pew survey that increased border security is an “important U.S. immigration policy goal.” But the Republican majority on this question had 91 percent support while the

Democrat majority was 59 percent.

The growth in immigration angst along the Southern border has coincided with the growth of asylum seekers massing along that border. Many of those are residents of the socalled “Northern Triangle” countries - Guatemala, Honduras, and El Salvador. But over the last two years, there has been a spike in asylum seekers from Cuba, Venezuela and African countries like Cameroon.

How prevalent is the problem? Customs and Border Protection reported 2.4 million migrant encounters at the Southern border in the U.S. in 2022, surpassing the 1.7 million migrant record established a year ago.

And based on the latest federal court battles, the cornerstone weapon in stemming the immigration tide along the Southern border is an obscure public health law written 78 years ago to stop the spread of communicable diseases like tuberculosis.

Title 42, part of the 1944 Public Health Service Act, was never intended to be the basis of major immigration enforcement in the country and certainly not the appropriate test for asylum seekers. The law gave the federal government the emergency power to stop “the introduction of communicable diseases” by migrants entering the U.S. — and to expel migrants without regard to their attempts to legally seek asylum as a public health necessity.

In 2020, the Trump Administration dusted off Title 42 to help the Centers for Disease Control and Prevention and other agencies to deal with the COVID-19 pandemic as cases soared. But it soon became evident that COVID-19 was not the only concern driving the use of Title 42. The old federal code was used some 1.7 million times to keep migrants from entering the U.S.

Underscoring the bipartisan kicking of the political can down the road, both the Trump and Biden administrations used Title 42 as a border control measure. While Trump supporters expected nothing less from the guy who pledged to “build the wall” on the Southern border, Biden soon came under fire from his supporters for failing to drop Title 42 enforcement by Customs and Border Protection.

The Biden administration extended the Trump administration's Title 42 orders in August 2021, but in April 2022 announced that it would end the policy, saying it was no longer necessary to protect public health. But shortly before the policy was set to end in May, a Louisiana federal judge ordered the Biden administration to continue the restrictions.

Last month, U.S. District Judge Emmet Sullivan of the District of Columbia vacated Title 42, agreeing with the American Civil Liberties Union that the public health law was being used to turn back asylum seekers rather than to protect public health.

Now the matter is before the Supreme Court, with Mississippi joining a number of states with Republican leaders seeking to keep Title 42 in place lest its elimination “cause a crisis of unprecedented proportions at the border.”

A majority of Americans want stronger, safer U.S. borders. But is Title 42 really the way?

Sid Salter is a syndicated columnist. Contact him at sidsalter@sidsalter.com