Order and the border: Judge is right to strike down Title 42 policy, but challenges loom

At last, a federal judge has articulated a fact that’s been in plain view for years: The Trump administration’s implementation of the socalled Title 42 order, expelling migrants without due process, had little to do with pandemic control and everything to do with blocking their legal right to seek asylum. Now the pressing question is what to do since a virtual wall based on a hollow pretext may well be coming down.

In an order and related memo on Tuesday, Judge Emmet Sullivan of the D.C. District Court eviscerated the government’s dubious rationalizations, pointing out that the administration had more reasonable approaches to control COVID than a blanket asylum prohibition it arbitrarily made exceptions to, and that it failed to take into account migrants’ rights.

In other words, the government can’t just wave away binding humanitarian responsibilities — which are themselves written into statute — by leaning on other parts of the law.

As welcome as this ruling is, it brings with it looming logistical problems that must be resolved to avoid a further meltdown of the immigration court system. Judge Sullivan has granted a request for a stay of the order until Dec. 21, meaning the administration has five weeks to figure out how to process what will be a significant influx of asylum seekers, driven in part by the bottleneck the government itself created.

When Homeland Security Secretary Alejandro Mayorkas issued a memo on the termination of Title 42 in April, he proposed closer coordination with non-governmental organizations on the ground, as well as a focus on increased border enforcement. It’s past time to get to work.

Simultaneously, the administration should work to beef up refugee programs, especially in Central and Latin America, allowing more orderly humanitarian processing outside the border region. It should also commit to having a national approach to migrant relocation, taking the lead to coordinate with cities and counties that could accommodate folks, rather than relinquishing that duty to ambitious state governors looking to score political points.