“Gorsuch didn’t say that there aren’t problems at the border or that the transition from Title 42 wouldn’t prove challenging. “But the current border crisis is not a COVID crisis,” he wrote. “And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.”
Policy makers would be wise to scrap the pandemic-era Title 42 order. It’s accomplished the opposite of what proponents promised, leading to more frequent and less predictable migrant inflows. Since a Title 42 expulsion carries no reentry penalty, repeat crossings roughly quadrupled in 2021 compared to their 2019 rate. Smugglers have taken advantage of repeat crossings by charging migrants more for the inflated number of northward journeys. With asylum largely inaccessible at ports of entry, migrants desperate to enter the country have attempted to cross the border in less surveilled, more dangerous terrain. These things have all contributed to chaotic scenes at the border, providing fodder for immigration restrictionists.”
“it’s inaccurate to say that undocumented immigrants crossing an open border are chiefly responsible for fentanyl arriving at the country’s doors. In reality, U.S. citizens carrying the drug through legal ports of entry are primarily to blame.”
“Customs and Border Protection (CBP) invoked Title 42 in nearly 1.8 million migrant encounters between April 2020 and March 2022, amounting to 61 percent of total encounters. Title 42 allowed immediate expulsion and barred affected migrants from applying for asylum.
Although immigration opponents pointed to those numbers as proof of the policy’s necessity, the figures were inflated. Because Title 42 is a health measure, immigration officials could not impose reentry penalties on expelled migrants. With no disincentive for reentry, the share of encounters that involved repeat crossers jumped to 27 percent in 2021, nearly four times higher than in 2019.
Excluding repeat crossings, the number of border apprehensions resembled pre-pandemic levels. Border hard-liners ignored that point, pointing to headlines announcing record CBP apprehensions. Meanwhile, most would-be migrants were unable to request asylum at a port of entry, opting instead to congregate at the border. That was the natural result of shutting down more orderly immigration channels.”
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” The Title 42 order has led to more frequent and less predictable migrant inflows. With proper planning, its phaseout could result in more efficient processing at the border. Restoring the asylum-seeking process, coupled with expanding opportunities for temporary work visas and economic migration, could help prevent both harm to migrants and chaotic scenes at the border.”
“The U.S. Supreme Court’s 2021-2022 term is not yet over and it is already going down in the books as a terrible term for criminal justice reform. A pair of recent dissents by Justice Sonia Sotomayor spotlights the sorry state of affairs.
First, in Shinn v. Ramirez, the Court held that a death row inmate who received ineffective state-appointed counsel at both trial and postconviction state court proceedings is now barred from presenting new exculpatory evidence—evidence of actual innocence—in federal court. “Innocence isn’t enough,” declared the state attorney during oral arguments, insisting that the federal courts must defer to the flawed state proceedings.
“This decision is perverse,” wrote Sotomayor in dissent. “It is illogical.” She is right on both counts. As The Washington Post’s Radley Balko has detailed, “every court to consider the actual merits of [death row inmate] Barry Jones’s innocence claim has ruled that he never should have been convicted of murder. And every court to rule against Jones did so for procedural reasons without considering the new evidence. If Jones is executed, it will not be because there is overwhelming evidence of his guilt. It will be because of a technicality.””
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“The second notable Sotomayor dissent came in Egbert v. Boule, a ruling which shielded a border patrol agent from being sued in federal court for his alleged violations of the First and Fourth Amendments. Among its many sins, this outcome made a mockery of the Court’s 1971 decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, which said that federal officers may indeed be sued in federal court for alleged Fourth Amendment violations.
“Bivens itself involved a U.S. citizen bringing a Fourth Amendment claim against individual, rank-and-file federal law enforcement officers who allegedly violated his constitutional rights within the United States by entering his property without a warrant and using excessive force. Those are precisely the facts of Boule’s complaint,” wrote Sotomayor in dissent.
She is again right on all counts. Innkeeper Robert Boule alleged that Border Patrol Agent Erik Egbert assaulted him on his own property after Boule asked Egbert to leave. That Fourth Amendment complaint does not differ in any meaningful way from the Fourth Amendment complaint at issue in Bivens.
Thanks to the Supreme Court’s flawed judgment, Sotomayor observed, Customs and Border Protection (CBP) “agents are now absolutely immunized from liability in any Bivens action for damages, no matter how egregious the misconduct or resultant injury. That will preclude redress under Bivens for injuries resulting from constitutional violations by CBP’s nearly 20,000 Border Patrol agents, including those engaged in ordinary law enforcement activities, like traffic stops, far removed from the border.” So much for the Fourth Amendment when a federal officer is involved.”
“Trucks were re-routed through Santa Teresa when Abbott’s inspections snarled commercial traffic at Texas border crossings, and now Mexico has decided to move a long-planned trade railway connection worth billions of dollars from Texas to the New Mexico crossing, The Dallas Morning News reported Sunday. “We’re now not going to use Texas,” Mexican Economy Minister Tatiana Clouthier said. “We can’t leave all the eggs in one basket and be hostages to someone who wants to use trade as a political tool.””
“Under the Public Health Services Act of 1944, codified in Title 42 of the U.S. Code, federal health officials may issue orders intended to curb the cross-border spread of diseases. Rarely invoked before the pandemic, Trump administration officials looked to Title 42 in late March 2020 as a way to stop migrants from crossing U.S. land borders. Would-be migrants could no longer cross into the United States from Canada and Mexico after the CDC’s Title 42 order, ostensibly because they posed contagion risks. The order has been used almost exclusively to expel migrants at the southern border, and CBP officials have carried out 1.7 million expulsions under its authority.
Its implementation has proven to be largely counterproductive and harmful to migrants. Those expelled under Title 42 faced nearly 10,000 incidents of kidnapping, torture, rape, and other violence after being sent to dangerous border towns in Mexico, according to Human Rights First. What’s more, because Title 42 does not penalize repeat crossings, the recidivism rate rose and the total number of CBP apprehensions spiked. This led to inflated reports of chaos and unprecedented migration at the U.S.-Mexico boundary, which only helped fuel the false argument that President Joe Biden is overseeing an open southern border.
Immigration advocates have long criticized the public health order for the barriers it poses to asylum seekers. Under U.S. immigration law, migrants are legally permitted to seek asylum—a process they must begin either on American soil or at a port of entry. An immediate expulsion under Title 42 means that migrants can’t present their cases for asylum, risking a return to the dangerous conditions many of them have fled.
From the very beginning, public health officials have questioned the efficacy of Title 42 in curbing the spread of COVID-19, noting that the virus was already spreading in American communities and that migrants posed a comparatively minor risk. The CDC’s director of Global Migration and Quarantine, Martin Cetron, refused to support the Trump administration’s initial order. Lawyers at the Department of Health and Human Services and CBP pressured the CDC to issue the order, but the agency refused until former Vice President Mike Pence ordered the borders closed. Since that initial scuffle, more than three-quarters of Americans have received at least one COVID-19 vaccine dose, making the health order’s stated justification even more tenuous.”
“There is also the massive accountability issue here. The CBP has authorization to use force against not just foreign travelers at the border but also against Americans within 100 miles of border crossings, and yes, some of them have gotten overly violent with citizens, just like members of other law enforcement agencies. As a federal government agency, the CBP is supposed to operate with transparency about its behavior and the behavior of its agents.
The communications between officers can help establish intent to engage in misconduct or violent behavior. The ability of a government agent to conceal or delete these messages impacts the ability to investigate and, when necessary, prosecute bad behavior. And when the federal government fails to police misconduct on its own, the ability to delete these messages also makes it harder for outside media outlets or accountability organizations like CREW to monitor what’s going on.”
“U.S. Customs and Border Protection has been using the policy implemented at the onset of the pandemic to immediately expel migrants apprehended at the border, while progressives, pro-immigration activists and institutions such as the United Nations and Doctors Without Borders have rebuked the policy for shutting the door on thousands of desperate families and stranding them in unsafe camps with limited options.
Almost everyone in this debate recognizes that the necessity of Title 42 to prevent Covid transmission is a pretense. Public health experts have long contended that the rule is scientifically baseless. In fact, officials in the previous administration explored enacting the policy before the pandemic by using the flu and measles as justification. But the benefits of repealing or leaving in place Title 42 are not as straightforward as either border security or human rights advocates claim, which both sides would be wise to understand as they argue the political merits of the administration’s next moves. If approached smartly, rescinding Title 42 could lead to a more secure and prosperous America rather than the chaos that some warn of.
Proponents of keeping Title 42 in place assert that the quick expulsions are needed because they give officials greater ability to intercept and turn back more migrants. A recent report from the Migration Policy Institute notes that Title 42 expulsions can take as little as 15 minutes, while removals under standard immigration law, which require more procedures and paperwork, can often take an hour and half.
But the procedural steps that Title 42 bypasses are critical for the U.S.’s ability to target smuggling networks and discourage repeat crossings. This is why Border Patrol agents warned in a 2021 report from the Government Accountability Office that Title 42 “negatively affected enforcement” because the expulsions gave them no time to collect intelligence from migrants concerning nearby smugglers and other illegal activity.
The quick expulsions under Title 42 also cut corners in ways that prevent authorities from deterring migrants as they attempt to reenter the country. Before the pandemic, officials were able to use criminal prosecution, fines and other penalties to deter people from repeatedly crossing the border. This is because apprehended migrants were being processed under standard immigration law. Title 42, however, is a provision that exists under health law, which means that authorities are incapable of issuing penalties for reentry against migrants who are expelled under this provision. Border Patrol officials have stated that because of Title 42, migrants now try to cross multiple times a day. Since the pandemic expulsions began, repeat crossings jumped from 7 percent in 2019 to 26 percent in 2020. It’s not unheard of for people to make as many as 30 attempts at crossing in just the span of a few weeks.”
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“But even when considering all the security liabilities that Title 42 is responsible for, proponents of the policy are correct in saying that Biden needs a plan in place as he works to rescind the program. This plan must include interagency coordination that rapidly expands capacity as more families arrive to claim asylum. The administration must also work with humanitarian organizations to ensure that they’re in the best position possible to monitor and shelter migrants — and that their capacity is being fully utilized.
At the same time, advocates for ending Title 42 as well as the Biden administration must acknowledge that the overwhelming majority of people who are being expelled under the policy haven’t been families seeking asylum, but rather single adults fleeing extreme economic deprivation and in search of work. In February alone, more than 90 percent of Title 42 expulsions were single adults — the vast majority from Mexico. Mexican President Andrés Manuel López Obrador has acknowledged this reality and urged Biden several times last year to work with him to expand guest worker programs for the U.S., Mexico and the Northern Triangle. Though the Biden Administration recently suggested a willingness to do so, it has not yet provided any details.
It’s critical that Biden’s post-Title 42 strategy includes increased access to guest worker programs. Extensive research shows that when expanded legal channels are paired with border security measures, illegal immigration rapidly declines. This was exactly what happened in the mid-1950s when the U.S. government expanded their agricultural worker program for Mexicans, which caused illegal immigration to collapse by 95 percent in just 5 years. Border Patrol saw the success of the agricultural program and warned that restricting it would cause “a large increase in the number of illegal alien entrants into the United States.” But in 1960, the Department of Labor did just that, causing employer use of the program to drop by 30 percent in just one year while Mexican apprehensions increased by 55 percent. When the program was eliminated altogether, apprehensions continued to grow, reaching nearly 1 million in 1976.”
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“With a surge at the border and a shortage of workers, maintaining Title 42 has done nothing to solve either crisis — aside from creating more jobs for human smugglers. Though the Biden administration is right to rescind Title 42, chaos at the border will continue to drive headlines and the U.S. economy will limp forward until Biden prioritizes expanding legal channels for those in pursuit of a better life.”
“Republican Texas Gov. Greg Abbott’s short-lived policy of requiring state troopers to conduct secondary inspections of trucks crossing into Texas from Mexico cost the United States almost $9 billion in just 10 days, Axios reported Tuesday.
The policy, which Abbott enacted on April 6, snarled truck traffic at the border and led to a protest by Mexican truckers that stopped trade at some major crossings. On April 15, Abbott ended the double inspections, for which he’d received withering criticism from both sides of the border and the aisle, after striking deals with the governors of the four Mexican states that border Texas.
Per Axios, Abbott implemented the policy “in response to the Biden administration’s announcement that it would lift Title 42,” a Trump-era public health policy that denied migrants entry into the United States.
An analysis by the Perryman Group showed that the U.S. lost an estimated $8.97 billion in GDP due to delays at the border, while Texas alone lost $4.23 billion.”