‘Chaos on top of a crisis’? Congress debates ending Title 42.

Some 1,700 miles away from the Rio Grande, where Spc. Bishop Evans drowned trying to save migrants crossing into the United States last week, members of Congress opened a Homeland Security hearing Wednesday by mourning his loss. 

But they disagreed about what his death symbolized. To Democrats, the Texas National Guard member’s sacrifice exemplified the humanity they’ve striven to restore after Trump-era immigration policies that Chairman Bennie Thompson called “a national disgrace.” To Republicans, it was a sign of how ineffective and imbalanced U.S. border policy has become, prioritizing the lives of migrants attempting to cross the border illegally over those tasked with securing it. 

The border debate has taken on new urgency with the Biden administration’s decision to end next month a Trump-era deportation tool called Title 42. Despite clear differences in how the parties view the issue, a number of Democrats – many facing tough reelection races – have joined Republicans in voicing concerns about the planned repeal. But while political forces may lead to a short-term fix, both sides agree that it is essentially punting on the larger problems of border security and immigration reform, which have eluded Congress for decades, even as the pressure on the border grows. 

Title 42 was created at the start of the pandemic to allow border agents to quickly expel migrants on public health grounds. It has been used to thwart about half of attempted crossings between official ports of entry in recent months. On April 1, the Centers for Disease Control and Prevention announced that Title 42 would be lifted on May 23, although pending court action could delay that timeline.

Without it, DHS is bracing for daily encounters – already at an unprecedented high – to rise from 7,800 to as many as 18,000 per day. That could mean more than a million unauthorized immigrants entering the country within the first two months. 

Secretary of Homeland Security Alejandro Mayorkas found himself in the hot seat this week at several congressional hearings.

House Democrats praised him for his efforts to rebuild the department. But Rep. Michael Guest of Mississippi blamed the secretary for “the worst immigration crisis that our nation has ever seen” and said officials he’d met with on the border felt abandoned. “Are you testifying as you sit here today that the southwest border is secure?” the Republican asked.

“Yes, I am. And we are continuing to work to make it more secure,” said Secretary Mayorkas. He noted that the number of migrant encounters is higher than the number of unique individuals trying to cross, due to those making multiple attempts. And he defended the department’s handling of migrants as well as refugees, as the Ukraine war adds to global migration flows not seen since World War II.

“We are restoring our leadership as a country of refuge,” said Secretary Mayorkas, whose family fled to the U.S. from Cuba when he was young.

Public health as a fig leaf?

Many Democrats believe it’s about time Title 42 is repealed. “I wish it would have been done by the administration sooner. But nonetheless, I appreciate that effort,” said Sen. Ben Ray Luján of New Mexico. 

Critics of Title 42 argue that it used public health as a fig leaf for justifying more stringent border control measures. “There is no public health rationale that supports the unlawful and discriminatory blocking and expulsion of people at our southern border,” wrote the ACLU New Mexico in a September letter to Secretary Mayorkas, which outlined alternative measures to address public health concerns and was signed by nearly a dozen state legislators.

But some Democrats are now asking President Joe Biden to extend Title 42 until DHS is better prepared to handle the expected influx. Earlier this month, five Senate Democrats joined GOP colleagues in co-sponsoring a bill to delay the repeal until at least 60 days after the president ends the national public health emergency. A similar bill in the House has 11 Democratic co-sponsors. 

This week DHS sought to assuage concerns by releasing a memo outlining the preparations underway – increasing everything from the number of Border Patrol agents to the number of bus seats for transporting migrants, as well as improving processing efficiency and stepping up deportations of known criminals. 

Many lawmakers were skeptical.

“A plan to just manage 18,000 people a day is not a plan,” said GOP Sen. Shelley Moore Capito of West Virginia.

Democratic Sens. Maggie Hassan of New Hampshire and Mark Kelly of Arizona, both of whom are up for reelection, said the memo left them with more questions.

“It isn’t clear to me that they have the resources they need in place to actually implement the plan,” said Senator Hassan.

“There is a lot that would have to be put in place for me to get to the point where I would be comfortable lifting Title 42,” echoed Senator Kelly, a former U.S. Navy captain and astronaut. He and the mayor of Yuma, Arizona, had met the previous day trying to figure out where the extra migrants could be housed. A former Sears store, maybe? Could they erect a temporary facility across from the Border Patrol building – and how quickly?  

Contrary to Secretary Mayorkas’ stance, the senator said the Arizona border is not secure.

“We already have a crisis at the border,” he said. “I don’t want to see chaos on top of a crisis.” 

Many attempted crossings, but also repatriations

According to government data, fiscal year 2021 saw unusually high numbers of attempted violations as well as enforcement of U.S. border policies:

• U.S. Customs and Border Protection recorded 1.72 million encounters, a historic high. That’s only slightly above the previous record, in FY 2000, but for the past 15 years the annual total had been below a million. 
• DHS also completed 1.2 million repatriations, the most since 2006. 
• The government removed nearly twice as many migrants with aggravated felonies than in 2020, according to an ICE report.
• CBP seized more than twice as much fentanyl as the year before. The highly potent drug is blamed for a spike in U.S. overdoses, which in FY 2021 exceeded 100,000 for the first time. Many GOP senators pointed to those figures as evidence that the border crisis has become a national crisis. However, more than 90% of the fentanyl seized was found at official ports of entry, not by Border Patrol agents stopping migrants between those locations.

It’s a perennial question whether higher numbers of enforcement activities signal an increase in attempted crossings or more effective enforcement – or both. One new development is that while most migrants seeking to cross the southwestern border traditionally hailed from Mexico or Central America, now they are coming from more than 100 countries.

That may help explain why so far in FY 2022, which began in October, monthly encounters are up on average 83% year-on-year – including a recent spike in Ukrainians seeking asylum. After Russia invaded Ukraine, the Biden administration gave CBP permission to exempt Ukrainians from Title 42, which has led to accusations from some critics of a double standard. 

As Congress debates whether increased funding would help DHS better enforce border policies, Republicans want more answers about how taxpayer funds are being used. They also would like the money to be deployed to deter migrants, not just deal with an influx.

Earlier this month, GOP senators held up a $10 billion COVID-19 relief bill over Title 42, arguing that the administration couldn’t declare the national health emergency over at the border while using it to justify more spending for other priorities. But the debate is about much more than public health. 

A problem only Congress can solve

Florida Sen. Marco Rubio, whose family came to the U.S. from Cuba, says the changing global landscape requires a revamped immigration process, arguing that current policies empower trafficking groups. Such groups typically charge $4,000 to $10,000 per person to make the perilous journey, with some migrants pressured into sex trafficking or drug trafficking to pay their way, according to congressional testimony. 

“There’s nothing compassionate about having an open border that is luring people to come to this country,” Senator Rubio says.

Many on both sides of the aisle agree that it’s only a question of time before Title 42 eventually ends – and there needs to be a more comprehensive solution in place. That, however, has eluded Congress for decades. 

“We have a broken immigration system that we need to fix here in Congress. And we can do that and still secure our borders and provide the resources needed for border security,” says Democratic Sen. Catherine Cortez Masto of Nevada, who as a former attorney general worked on border issues, including trafficking. “They’re not mutually exclusive. You can do both.”