Dog whistles go full siren as “arbitrary and capricious” immigration restrictions set to expire
By Ernesto Castañeda, Associate Professor of Sociology, American University
A key component of the Trump administration’s anti-immigration policies is currently set to expire on December 21, 2022.
Officially called Title 42 of the U.S. Code, the little-known law was established initially in 1944 to prevent the spread of influenza and allow authorities to bar entry to foreigners deemed to be at risk of spreading the disease.
In March 2020, on the recommendation of the Centers for Disease Control and Prevention, then-President Donald Trump invoked the law to minimize the impact of the COVID-19 pandemic.
But Trump and his advisers had another goal as well – closing the U.S.-Mexico border and restricting the number of new immigrants.
Indeed, U.S. District Judge Emmet Sullivan ruled in November 2022 that the Trump administration’s implementation of Title 42 was “arbitrary and capricious,” blamed the CDC for failing to come up with reasonable alternatives and reluctantly extended the November expiration date to December 21 to allow the Biden administration to prepare for the increase in cases filed by asylum-seekers.
As an immigration researcher and expert on international borders, I have followed border crossing trends and the effects of Title 42.
In my view, the end of Title 42 will not weaken border security. Nor will it mean that the U.S. has “open borders” or that we will have a crisis in border states, as many conservative politicians and commentators claim.
More than a million migrants expelled
While the Trump administration was reluctant to impose federal lockdowns or mask mandates at the start of the pandemic, it was aggressive in its use of Title 42 to close the border to people fleeing from persecution who have the legal right to make their asylum claims.
As written, Title 42 of the U.S. Code allows for the “suspension of entries and imports from designated places to prevent spread of communicable diseases.”
In practice, the law enabled U.S. law enforcement officers to immediately deny entry to asylum-seekers and other migrants.
During the height of the COVID-19 pandemic, around 51% of the people encountered at the border were immediately expelled or put into deportation proceedings as a result of Title 42.
U.S. Customs and Border Protection reported that over 1 million people were denied entry under Title 42 alone in each of the 2021 and 2022 fiscal years.
In October 2022 alone there were more than 204,000 encounters along the U.S. southern border and over 78,400 expulsions under Title 42, according to U.S. Customs and Border Protection data.
After being sent back, asylum-seekers and migrants often try to enter more than once and are counted separately each time by the authorities. This inflates the counts of encounters at the border significantly.
The number of border encounters may decline without Title 42
In the short term, I would expect to see that the end of Title 42 will mean an increase in the number of asylum applications being processed, and the federal government has said it is prepared for a surge.
In fact, Department of Homeland Security Secretary Alejandro Mayorkas has said repeatedly that he has a six-point plan in place to cope with the expected immediate surge in numbers when Title 42 is lifted.
In my view, after some months, the lifting of Title 42 will actually result in a decrease in the official number of border “encounters,” because fewer people will be counted multiple times and the traffic jam created by the border closure to asylum-seekers will eventually ease.
Both Republicans and a few Democrats want to keep Title 42 in place, at least temporarily, to stem the flow of migrants across the U.S. border.
For example, Sens. John Cornyn, Republican from Texas, and Joe Manchin, Democrat from West Virginia, and Texas Reps. Tony Gonzales, a Republican, and Henry Cuéllar, a Democrat – among others – have appealed to President Joe Biden to extend Title 42.
What these lawmakers do not say is that Title 42 was originally designed to prevent the spread of a highly contagious disease – not to deny people their legal right to make a claim for asylum in the United States.
Originally published on The Conversation as A Trump-era law used to restrict immigration is nearing its end despite GOP warnings of a looming crisis at the Southern border
Support evidence-based journalism with a tax-deductible donation today, make a contribution to The Conversation.