Title 42 struck down as the pretext that it is

Sometimes you have to call a pretext a pretext.

That's what Title 42 always was, a COVID-19 pandemic-related excuse to get rid of the problem of asylum seekers at our southern border.

The legalese was crafted during the presidential administration of Donald Trump, during the darkest days of the viral plague that has killed more than a million Americans, and it seemed like a good excuse at the time to have in place a presidential order keeping poor people fleeing tyranny from seeking refuge here.

It also seemed like an easy thing to campaign against for Joe Biden. But the current administration has kept Title 42 in place, the same as it has the economically insane Chinese tariffs put in place by Trump, campaigned against by Biden, and yet maintained to this day.

You might say that there's campaigning and then there's governing, but that doesn't make it right.

A federal judge last week ended — “vacated” — the Title 42 policy allowing the Border Patrol to quickly turn away migrants without letting them seek asylum, getting rid of the Trump policy that soon enough turned into the Biden policy.

U.S. District Judge Emmet Sullivan in Washington, D.C., said that Title 42 ran against the federal Administrative Procedures Act, and so struck down the policy and stopped the Biden administration from using it to turn away migrants.

Title 42 isn't really about keeping COVID-19 out of the United States. COVID-19 is very much here already and will be for some years to come. It's about dealing politically with the sensitive fact that historically — like it or not — our nation has been one that welcomes people fleeing repression around the world. Easy for us to say bully for that — a policy that has made our nation stronger, not weaker.

Not so easy for two very different presidents who pay attention to public opinion polls.

Judge Sullivan said in his decision that the Centers for Disease Control and Prevention “failed to adequately consider harm” caused by the policy.

“It is unreasonable for the CDC to assume that it can ignore the consequences of any actions it chooses to take in the pursuit of fulfilling its goals, particularly when those actions included the extraordinary decision to suspend the codified procedural and substantive rights of noncitizens seeking safe harbor,” Sullivan wrote.

He noted the plain fact that would-be immigrants frequently face persecution and violence once expelled from our country, either in Mexico or in whatever nation — Venezuela in particular, Haiti as well — they are trying to get away from in the first place.

Anti-immigrant Americans may not care that whatever means necessary were being used in order to capriciously get rid of the pesky problem of asylum seekers at the border. But their xenophobic feelings in the present, using the pandemic as an excuse, cannot be allowed to abrogate a historic United States precedent of welcoming those fleeing political repression.

This was always about political expediency rather than historic precedent, originally under Trump and now under Biden. That, again, does not make it right or legal, which the judge clearly called out.

“Dr. Anne Schuchat, the former CDC principal deputy director in 2020, testified before the House of Representatives that some in the agency did not believe that the agency's adoption of the March 2020 order was appropriately `based on criteria for quarantine,'” Judge Sullivan wrote.

We have a problem at the southern border — though it's not a “crisis,” unless a crisis is something that can last for many decades, as little has changed there.

The separate issue of asylum exists for a very American reason. But, as The Hill notes, “the Biden administration strongly defended the dubious public health qualifications of the policy, used it to expel around 25,000 Haitians to their crumbling country and expanded its use to Venezuelans.”

Pretexts won't do. Stop using them to justify the unjustifiable changes to our longterm asylum policies.