July 24, 2021
Center for Homeland Security and Immigration
Op-Ed: As COVID-19 pandemic continues, Biden must maintain Title 42 at the southern border
July 24, 2021
President Biden’s arguably intentional dismantling of America’s border security efforts is, in some ways, impressive. His administration took a largely secured southern border and historically low levels of illegal immigration and thrown both trends into reverse at full throttle.
Since January, several hundred thousand illegal aliens have crossed our border with Mexico, aided and abetted by the Biden Administration, and been transported all over the country with the help of your tax dollars.
The manufactured national security catastrophe at our border is hard to top. Still, the Biden Administration may be about to do just that by withdrawing a key public health tool that has been used very effectively over the last 16 months.
On March 20, 2020, after the declarations of public health and national emergencies due to the COVID-19 pandemic, President Trump invoked a little-known public health statute that has been on the books since before the end of World War II. Section 265 of Title 42 of the United States Code, which became law on July 1, 1944, provided that the Surgeon General had the “power to prohibit, in whole or in part, the introduction of persons and property” from abroad to prevent exposing Americans to dangerous communicable diseases.
Simple, right? In the past, yes. At the time of passage, most Americans probably viewed “Title 42 authority” as a sovereign nation’s right. Today, however, in the era of President Biden’s amnesty-fueling open-borders policies, it is something that the Biden Administration wishes did not exist. And there are signs that the administration is about to terminate Title 42 entry restrictions.
It is worth asking why. Have the vaccination rates, positivity rates, and public health infrastructure in Canada, Mexico, and other countries improved enough to reduce the risk to the American public? No. Instead, the Biden Administration is more concerned about potential lawsuits from the American Civil Liberties Union than it is about protecting Americans.
The Trump Administration applied Title 42 reasonably, responsibly, and in line with existing law. Since the COVID-19 pandemic impacted virtually every country in the world, the initial emergency regulations and accompanying directives were focused on preventing people from or transiting through afflicted countries from entering the United States, including via ports of entry. These authorities were extended for the remainder of the Trump Administration. Not coincidentally, the volume of illegal immigration also plummeted because the implementation of Title 42 eliminated one of the primary illegal immigration-fueling “pull factors” — catch and release into the United States.
Upon taking office, Biden immediately changed the Title 42 restrictions to allow the entry of so-called unaccompanied alien children (UAC). This single change is arguably responsible for the resurgence of UACs and the accompanying housing crisis that has ensued since late January. Transnational criminal organizations and cartels are once again able to resume their very profitable smuggling and trafficking of children into the United States, which are then used to bootstrap the subsequent entry of family members from abroad into the United States.
Beyond its impact on illegal immigration, President Biden’s modification of Title 42 also represented something of a slap in the face to America’s parents and children. After all, if foreign children — with no assurances as to identity and health status — were being let into the United States as of January, surely this meant the Biden Administration would loosen restrictions for children in America’s schools. Except that never happened. In some parts of the country, particularly in states aligned with President Biden, we still have a dynamic where American citizens have less freedom than illegal aliens.
One can only speculate about the additional damage this termination will cause to border communities and the rest of America, but the current projections about the influx of illegal immigration, even with Title 42 kept in place, are sobering. Just last week, Steven Kopits of Princeton Policy Advisors forecast that the Biden Administration’s open border policies would result in the entry of approximately 1.7 million foreign nationals if left in place through the end of the year. This number, mind you, does not include aliens who are not apprehended. It does not take a statistician to figure out that eliminating Title 42 will push that number even higher.
Polls show that the American people do not trust the Biden Administration regarding border security, and it is clear why. Simply stated, the Biden Administration has placed its political push for amnesty ahead of its constitutional obligations to American citizens.
Instead of running from lawsuits, the Biden Administration should link termination of Title 42 restrictions to the termination of the domestic public health and national emergency declarations. Doing so would demonstrate a consistent approach to global health dangers and basic regard for the American people. Americans also deserve at least the courtesy of having the same freedom as illegal aliens on American soil.
John A. Zadrozny serves as the Director of the Center for Homeland Security and Immigration at the America First Policy Institute (AFPI). He previously served as a Deputy Assistant to the President during the Trump Administration.
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