Title 42

FAIR’s Spencer Raley, Preston Huennekens, and Matthew Tragesser discuss how a little-known emergency health order called Title 42 is helping mitigate the spread of COVID-19 at the southern border and why the Biden administration's plan to to lift the order is completely contrary to how seriously they claim to be taking the global health pandemic.

Show Notes

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The Federation for American Immigration Reform's podcast bringing you the most important updates about U.S. immigration. Featuring special guests including members of Congress, journalists, and experts in the field.

Today on Understanding Immigration - Title 42.

Spencer:
All right welcome back to another episode of fair's understanding immigration podcast this is Spencer Raley fair’s director of research and I’m joined today by Matthew Tragesser from our comms team and Preston Huennekens from our lobbying department you're probably hearing a lot about Title 42 in the news right now but what is it exactly how does it impact our border is it helpful and why do so many people seem to want to see it end if it is so helpful? really in short title 42 allows the federal government to quickly remove those migrants who pose a health risk to the general population in the united states but like most other government policies there's a lot more to it than that so Matthew I want to start with you here can you tell us how title 42 came to be used for removing migrants who pose a public health risk and why is it important

Matthew:
thanks Spencer so there's two main things to know here there's title 42 of the US code which is a massive US code dealing with really a lot of different areas including public health social welfare and even civil rights statutes but what we're talking about today is section 265 of title 42 which as you mentioned allows the federal government to quickly remove migrants who have crossed unlawfully now the Trump administration implemented this in march of 2020 so about a year and a half ago to help mitigate the spread of covid 19 and this has been rarely used in previous years in fact the last time this was actually used somewhat was in 1944 now section 265 of title 42 permits the director of the CDC to prohibit the introduction of individuals into the US when the director believes that quote there is serious danger of the introduction of a communicable disease into the US so this allows customs officers you know which often includes many in CBP customs and border protection to quickly remove migrants and also to implement this order on behalf of the CDC now the current order does not apply to obviously US citizens lawful permanent residents their spouses their children but it's mainly applied to those who are crossing unlawfully again that's been a huge problem in the past few years obviously a big problem now and the idea is well if this order is implemented then people who cross unlawfully aren't going to be processed you know placed in detention released into communities which is happening under the Biden administration they're quickly removed in a matter of hours sometimes which you know prevents the spread of covid 19 in our country now it has been really effective since October the beginning of the fiscal year more than 750,000 individuals have been removed now this number you know looks pretty good on paper but it's actually kind of low because the Biden administration has not been fully enforcing it to everyone who's crossing the southern border it's been mainly applying it to single adults rather than most unaccompanied minors family units so this number could potentially even be higher if it was fully enforcing it but it's only doing it somewhat right now in the past few months or so the administration has indicated it's going to remove or lift title 42 which would be obviously a catastrophic mistake we're still you know in a global pandemic and you know we have tens of thousands of people crossing over the southern border daily now I’m sure we'll talk about this later in the episode but obviously there's been a lot of scrutiny over the order in fact ACLU in November of 2020 they actually won a preliminary injunction in a class-action lawsuit on behalf of a ton of unaccompanied minors but then a few months later in January a federal appeals court the DC court of appeals stayed the injunction so it allowed DBP and immigration authorities to permit the expulsion of these unaccompanied minors while the case was still being litigated so again it's worked really well you know hundreds of thousands of people have been removed under the order in just about a year and the alternative is you know you have people who are coming from hotspot regions from around the world with low vaccination rates you know being apprehended and then releasing into the interior of the country bussed flown to wherever they want basically and that creates a lot of problems that's kind of what we're seeing right now and it'll be interesting to see if the Biden administration lifts this in the coming days.

Spencer:
yeah right clearly using title 42 to keep migrants from bringing cover to the united states was and has been effective so far and it's again clearly in line with the intent of the broader statute it's pretty plainly laid out in that statue what you know the director of CDC can and cannot do and they've been staying within that statute so it kind of it kind of boggles my mind at times to see groups like the ACLU suing to end the usage of that statute trying to and they know it's not but they're trying to claim that it violates some sort of constitutional right or some sort of other statute but I also find it interesting that they're not doing that with other forms of legal immigration you know if you want to just create the scenario you could have an unaccompanied minor come to the border who holds a green card or something they'd be turned you know there's a good chance that some of them would be turned away right now because we see all these other restrictions on lawful immigration especially if you hold certain types of visas because you don't see the ACLU trying to sue to prevent them from you know to allow them to come into the country they're specifically trying to empower illegal aliens and it really makes no sense to me as you mentioned the Biden administration continues to discuss ending title 42's involvement in immigration enforcement and so I want to jump into that just a little bit more so maybe Preston could you tell us more about what their plans are are they actually going to carry through with it and where will that leave us if they're successful?

Preston:
right so they have really been see-sawing on this issue because early on in the administration they removed for instance the remain in Mexico policy they removed the asylum agreements that were struck with the northern triangle countries so they pretty much got rid of everything that the Trump administration had done except for title 42 that is the really the only immigration it's not really enforcement because it can only be used in times of really national emergencies regarding health which I think everyone can agree covid is and so they haven't gotten rid of that yet and early on they discussed oh we're to wind it down in the summer hope you know vaccinations were rising cases were falling but now with new variants with the delta variant they're coming back up and so there's really an impasse within the Biden administration there are officials who are saying we cannot for health reasons saying we cannot get rid of this we have to keep this in place while there are others who are saying no this is you know a real this is terrible and it's keeping migrants out of the united states and all these other you know kind of crazy ideas and even within DHS there are officials who acknowledge that outside of covid the crisis at the border because there are so many people coming that really the only tool we have to keep it from becoming a disaster is title 42 because for the vast majority of people that are not in family units and that are not unaccompanied alien minors they're being turned away single adults are for the most part being turned away only because of title 42 and so Matthew you brought up a great point regarding the lawsuit Poe versus Mayorkas that the ACLU has brought against the Biden administration and intriguingly the Biden administration is negotiating with the ACLU to avoid going further into the into litigation into this court case and the complaint from the ACLU is actually pretty incredible and I want to read it to get kind of y'all's ideas on it the complaint alleges that the title 42 rule exploits a public health crisis to further President Trump's and again this is Poe versus Mayorkas (they’re mentioning Trump, that’s all Trump) that's all they care about… is exploiting a public health crisis to further President Trump's plan to destroy the asylum system part of a broader anti-immigrant agenda fueled by Trump's racial animus towards central Americans and people of color this animus is clear from the many documented instances in which Trump while in office openly wished for policies that would inflict harm upon people seeking asylum at the southern border of the united states.

Spencer:
can I just jump in here for a minute you know we just released a study covering statistics from the Trump administration in 2019 and 2020 primarily most of this was covered in 2019 the Trump administration despite enacting MPP the migrant protection protocols admitted more asylum seekers into the united states granted more cases of asylum than any year in the 21st century that's more than any year during the Obama administration more than any year during the Bush administration more than any year in the final year of the Clinton administration in any time so far and on pace to be more than 2021 under the Biden administration so this is really a ridiculous claim that they're making here and I would counter by saying that it's the ACLU trying to downplay the seriousness of a public health crisis in order to further their agenda which is open borders bring in as many illegal aliens as many lawful migrants as many people as you can into the united states to change the social fabric of this nation and I think that's it's really despicable but at the same time it's kind of brilliant because they know that the Biden administration is terrified about Trump comparisons the entirety of their strategy so far has been as we've said before orange man bad if Trump did it we won't do it so basically what the (even when it worked) exactly even when it worked and basically what the ACLU is saying here is oh look you look like Trump you look like Trump we're going to tell the world that you're doing what Trump did in order to get their way because they know that if history is in any indication the Biden administration is going to freeze and cancel a fantastic policy that protects Americans that secures our border and it keeps illegal aliens from coming into this country simply because they don't want to look like Trump.

Matthew:
and if you think about it title 42 is in line with the other travel restrictions that are in place during this pandemic I mean the white house just a few days ago announcing that they're still placing the air travel restrictions on the UK most of Europe China India Brazil I mean no one's criticizing any of that and now it's somehow it's seen as different than title 42 and I think it's both are put in place to mitigate the spread of covid 19 they're not permanent measures it's until our country the rest of the world gets better control of the disease.

Spencer:
right and honestly it's a double standard you know the border is still closed like you mentioned to most lawful migrants and visitors so why should illegal aliens get a free pass sorry Preston I cut you off to make point.

Preston:
no it's a great point it needs to be made and I think going back to what you were saying about the Biden administration being so terrified of being compared to the Trump administration that is why they are negotiating with a the ACLU is a non-profit organization you know it's really no different than any other lobbying group in the united states and the Biden administration is negotiating with them rather than even try to defend this in court which is bizarre because there are people within political appointees within Biden's DHS have come have come out and said we cannot end this we do not have the resources to deal with this surge going on at the border if we do not have title 42. and it's again it's very I think revealing like you had said and like Matthew had said about the state of the Biden administration when it comes to immigration they are really just flying by the seat of their pants they're doing anything they can to avoid being compared to Trump even though the Trump policies worked and they in the policies that Trump put in place ended the 2019 crisis when Biden removed those policies he created the 2021 crisis.

Spencer:
exactly and I think what's most concerning to me here is where that's going to leave us because like you mentioned title 42 I mean we can't even say you know it keeps us from being I don't even know how to put it because we're already in a crisis right now it just keeps it from becoming that much worse (it keeps it from becoming a disaster) a disaster yeah that's probably a better way to put it keeps it from becoming a disaster because right now we just saw in the news in the last couple of days it was discovered that you know the Biden administration has released 50,000 migrants into the united states without even a court date like they cannot process the illegal aliens coming across the border right now so if you remove title 42 you're talking tens of thousands of more individuals that are probably going to be released into the united states without a court date without even quarantining for the required amount of time and really without any indication any knowledge of who they are so it's going to be a disaster from every standpoint it is going to cause covid cases to increase in a time when we're already seeing them spike across the united states you know we again in the news saw that the white house is starting to require individuals and are considering requiring all federal workers to wear a mask if they aren't vaccinated Matthew you were telling us the other day about a report you saw showing that as many as 30 percent of these migrants are saying we're not going to take a vaccine and a lot of most of those coming here right now are not vaccinated so you know we have the Biden administration who is pushing this goal of 70 vaccinated but at the same time he's dragging his statistics down by bringing in allowing individuals to come to the united states who one aren't supposed to be here in the first place they don't have lawful authorization they're not vaccinated they're coming from covid hot spots they're not quarantining and then they're just being released into society with no regard given to what kind of impact public health or otherwise they will have on the communities that they go to

Matthew:
there's also a national security component to this too because if you think about it you know CBP border patrol agents are basically given no funding and resources but if they were to contract covid and they have to quarantine can't be on the front lines anymore I mean that's less manpower to help with humanitarian needs of migrants you know to apprehend dangerous criminal illegal aliens I mean and that's one thing I think we talk about you know what's gonna happen in the interior with you know transporting migrants bussing flying and how they're gonna affect you know Americans in the interior but also let's not forget the men and women who are on the front lines there if they get sick I mean they can't work and that's going to blow up in the borders even more.

Spencer:
yeah and we've seen even during the Trump administration when apprehensions were at 400,000 not per month you know or 400,000 in a whole year not you know over a million we were hearing stories about border patrol short staffed and they were we needed more border patrol to secure you know our southern border and now we've seen hiring go down we've seen some quit because this is what they signed up for they didn't sign up to be what some are calling the welcome committee you know border you know border welcome exactly yeah and so yeah we're risking making an already thin resource even thinner and again putting American lives at risk so Preston let me go back to you one more time is there anything that can be done to preserve title 42 if the administration decides to end it or anything else that maybe congress or you know others can do in order to ensure that we have some semblance of border security?

Preston:
yeah the way that title 42 is currently written it leaves a lot of deference to the administration into the executive branch but there is you know conceivably there is something congress could do there is a bill out there HR 471 the pause act which was introduced by representative Yvette Harrell from New Mexico which would bar the secretary of health and human services from removing title 42 at the border until three criteria are met first that the national public health emergency for covid 19 has ended second that this any state level public health emergencies for covid 19 are ended and then third and finally that the director of the CDC reduces the traveler health risks to level one for Mexico and Canada and I think those are three pretty standard criteria I think until we've met those how can you justify removing title 42 at the border exactly with cases surging with the new delta variant with covet is not going away and we can't remove the title 42 from the border just because you know a few illegal aliens aren't getting into the country fast enough I think that's ridiculous and I think that Representative Harrell has introduced a great bill it has over 60 co-sponsors in the house but again unfortunately because republicans do not control the house of representatives this bill isn't going to go anywhere democrats have no interest in moving this through the house but I think that is really a great template if there are any democrats out there that want to operate with common sense during these times that is a great template to bring up and it would be fantastic for someone on the democratic side of the house to co-sponsor this and bring this up with Representative Harrell

Spencer:
well you know what to do everyone pressure your congressmen you know call them especially if you if your congressman is one of these you know these swing moderates someone whose seat is at risk of being lost in 2022 or someone who has maybe shown a shred of competence in the past on covid 19 and on border security because at this point seems like it's the only thing we can do to preserve it you know make your voice known we've seen the Biden administration balk a little bit on this and some other issues simply because they've seen their numbers in the tank when it comes to immigration so you know that's where a lot of the power is right now is in you know letting congress know what you think being vocal about your concern on these issues well I think that's all we got for you all today I hope that you've enjoyed today's episode and perhaps learned something new about this important effort to keep immigration lawbreakers from bringing covid 19 into this country as a reminder we are still releasing new episodes every other Monday and for any new listeners to this podcast we appreciate you listening and invite you to check out our series on your favorite platform such as google apple and spotify and see what other topics we've discussed that may interest you we have more than 35 episodes that cover important topics that impact your daily lives so there's a lot of content for you to listen to also I’d like to invite you to check out all the other content that fair has to offer so please follow us on facebook and twitter and visit our website www.fairus.org we hope each and every one of you are continuing to stay safe and sound and until next time this has been understanding immigration presented by fair