‘This is not about the pandemic anymore’: Public health law is embraced as border Band-Aid

WASHINGTON — In the early days of the pandemic, as the coronavirus shuttered schools and businesses and governments imposed travel restrictions, the Trump administration turned to an obscure public health law to seal the southern border to migrants. Ostensibly, the rationale was that the restriction was needed as a way to control the pandemic.

But nearly three years in, both the Trump and Biden administrations have instead relied on it as a tool to limit record numbers of migrants — often fleeing persecution and violence — from crossing into the country. Democrats and Republicans have largely dropped the guise of public health concern and are instead using the law as a negotiating chip to try to secure a deal on border security and immigration.

The once rarely used rule — known as Title 42 — has allowed border agents to rapidly turn away migrants who might otherwise qualify for asylum. Now it is being treated almost exclusively as a stopgap measure for a surge of border crossings that will likely intensify in the months to come.

Justice Neil Gorsuch accused the government of using the law as a pretext when the Supreme Court halted a trial judge’s ruling that would have lifted the measure on Tuesday night.

“The current border crisis is not a COVID crisis,” Gorsuch said in his dissent. “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.”

Even though the rule is being debated as a tool to deter migration, the authority over whether to keep in place Title 42, which is part of the Public Health Service Act of 1944, falls to the Centers for Disease Control and Prevention. The Biden administration, which first announced it would lift the policy last spring before it was stymied by litigation from Republican-led states, said the decisions over whether to extend or lift the rule fall solely to public health officials.

Officials from both administrations have repeatedly argued that the policy was not an immigration policy, but rather a public health measure. But ever since the Trump administration’s initial use of the rule, some CDC officials have questioned the effectiveness of the border restriction as a public health tool.

Kyle McGowan, the CDC chief of staff under former President Donald Trump, said that in the weeks leading up to Title 42’s implementation in March 2020, the policy “was hotly debated, and we pushed back.” Martin Cetron, the director of the agency’s Division of Global Migration and Quarantine, later told a House committee that the policy “came from outside the CDC subject matter experts” and was “handed to us.” He added that Stephen Miller, the chief architect of Trump’s anti-immigration policies, was involved in the implementation of the rule.

In fact, Miller on multiple occasions tried to use Title 42 even before the pandemic, during outbreaks of mumps at detention facilities in six states and again when border stations were hit with the flu. In most cases, he was talked down by Cabinet secretaries and lawyers.

Public health officials continued to question the rule under President Joe Biden. In the summer of 2021, CDC officials told Biden’s top aides that it was not clear there was still a public health rationale for keeping the border shut to most migrants. White House officials argued Title 42 was needed to prevent the spread of diseases in detention facilities, particularly as variants emerged. Privately, Biden’s top aides, including his chief of staff, Ron Klain, and domestic policy adviser, Susan Rice, were worried that lifting the rule would lead to a surge in migrants and intensify partisan attacks against the Biden administration.

Dr. Anthony Fauci, the White House’s chief medical adviser, cast doubt on the border rule’s effectiveness as a public health measure when he told CNN last year “my feeling has always been that focusing on immigrants, expelling them or what have you, is not the solution to an outbreak.”

The idea that immigrants carry infections into the country echoes a racist notion with a long history in the United States that associates minorities with disease.

“This is not about the pandemic anymore,” McGowan said. “This is what 20-plus years of Congress’ inaction to address immigration looks like.”

On the ground, the rule has not deterred unlawful migration. Since its implementation, the policy has been used to expel migrants — including many asylum-seekers — about 2.5 million times. But many migrants are still allowed in: The Biden administration carved out a number of humanitarian exemptions for vulnerable migrants. Migrants from certain countries also cannot be repatriated because of strained diplomatic ties, and, at times, border agents have been unable to return migrants to Mexico because of shelter restrictions there.

Title 42 has also had the unintended effect of giving migrants more chances to cross the border illegally, since many attempt to cross the border again after being expelled. Homeland Security officials have estimated that 30% of illegal crossings during the pandemic were repeat offenders.

The Title 42 expulsions account for only half of enforcements of illegal crossings in the last fiscal year, according to Customs and Border Protection data. Border agents have still had to apprehend and process hundreds of thousands of migrants who could not be turned away using Title 42, overwhelming both border agents and border communities with limited resources to provide migrants with assistance.

Still for some lawmakers and politicians in both parties, brandishing Title 42 is a way to flaunt an aggressive stance on the border in the absence of any coherent immigration policy.

Title 42 “is an easy way for public officials to fix in their mind immigration without doing the hard work,” McGowan said. “It’s just a Band-Aid. No, I don’t believe at this point it has anything to do with public health.”

“I thought when the Biden administration came in, this was going to be one of the first things reversed, and it wasn’t,” he added.

Democrats have used Title 42 as a shield against accusations of being weak on border security, and the potential lifting of the rule has provided Republicans an opening to attack the Biden White House. In the months leading up to the tightly contested midterm elections, some Democrats became more outspoken on the issue.

“We need assurances that we have security at the border and that we protect communities on this side of the border,” Sen. Raphael Warnock, D-Ga., said ahead of his reelection race when asked about the lifting of the rule. Before Sen. Catherine Cortez Masto, D-Nev., won another term last month, she too criticized the lifting of Title 42, saying it would “leave the administration unprepared for a surge at the border.”

In June 2020, Cortez Masto had signed a letter with other Democratic senators accusing the Trump administration of using Title 42 “to further an ongoing agenda to exclude asylum-seekers, in violation of Congress’ plain word and intent.” This came after a letter criticizing Title 42 that was signed that April by the Democrats of the Senate Judiciary Committee, who at the time included Kamala Harris.

Other lawmakers have tried to leverage the public health rule to secure a deal on immigration reform. Sen. Kyrsten Sinema of Arizona, who left the Democratic Party to be an independent earlier this month, and Sen. Thom Tillis, R-N.C., hashed out an immigration framework that would have extended Title 42 and provided a pathway to citizenship for roughly 2 million people brought into the United States illegally as children. The deal failed to secure enough support in Congress.

Asked if Title 42 was ever really a tool in the pandemic era to curtail outbreaks rather than an immigration tool, Tillis said that with the policy was “the logical next step” after other COVID-19 restrictions were imposed in 2020.

“They are at a point where I don’t think the courts are going to keep it in place for very long,” Tillis said. “And that’s why we thought, talking to Border Patrol, they think it’s a very useful weapon to reduce the flow.”