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Title 42 was never the solution to Biden’s border crisis

LLast week, a federal judge in Washington, DC, ordered the Biden administration to stop using Title 42 public health policies to turn away immigrants caught illegally crossing the southern border. While the end of this program will certainly exacerbate the existing crisis at the border, conservatives should not shed a tear over its end.

President Joe Biden eroded the full authority of Title 42 on his first day in office, cynically rewriting it on the fly for political ends. Now that Biden is being forced to abandon the use of a public health law to enforce immigration policy, perhaps his administration will start in earnest to embrace existing, tried-and-true solutions to border chaos.


While Title 42 is an acronym for the legal basis that U.S. Customs and Border Protection uses to return immigrants to Mexico, Title 42 is actually a broad public health law that has very little to do with immigration. In fact, it’s the very same law that Biden tried to use to justify his COVID moratorium on clearance.

When then-President Donald Trump first invoked Title 42 in March 2020, it was a valid precautionary measure to stop the spread of COVID across the southern border. However, on his first day in office, Biden began selectively enforcing Title 42 without regard to science or public health. For example, what was the scientific reason why Title 42 applied to adult immigrants traveling alone but not to adult immigrants traveling with children? Biden never said it — because there wasn’t one.

When Homeland Security Secretary Alejandro Mayorkas pressed the issue, he passed the buck to the Centers for Disease Control and Prevention. “The Title 42 agency is a public health agency and not an immigration policy,” Mayorkas said said last October. “It’s not an immigration policy that we would adopt in this administration, but we view it as a public health necessity as directed by the Centers for Disease Control.”

But that same week, when the Biden administration was asked to explain why it didn’t fully implement a judge’s order to reinstate Trump’s “remain in Mexico” policy, an anonymous Biden official came forward said, “Title 42 will remain the primary enforcement mechanism for illegal border crossings.” So was it immigration policy or a sanitary patch for an immigration crisis? Biden and his senior officials spoke out of both corners of their mouths.

The reality is that Biden cynically used Title 42 as a loophole to rewrite immigration policy on a political whim. One day he wouldn’t use it on Haitians – the next day he would use it ruthlessly to send a message. The result was record-breaking lawlessness, misery and death.

Biden doesn’t need Congress to end the crisis he created. All he has to do is re-implement the remain-in-Mexico policy that his predecessor used to resolve the 2019 border hike.

Republicans should not lift a finger to help Biden reform the immigration system until he proves he has the competence and will to restore order to the southern border.


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