Biden’s Challenge at the Border
Originally Published in The New York Times
Clay Risen – August 10, 2021
With the Delta variant spreading, the Olympics ending and the West Coast burning, you could be forgiven for missing one of the year’s biggest stories on immigration: After months of promising to ditch a Trump-era policy that turned away most migrants at the border during the pandemic, President Biden announced last week that he was keeping it, indefinitely — setting in motion a fight with the left over an issue his administration would rather keep on the back burner.
The policy, known as Title 42, is ostensibly about public health, and the administration said the rule was extended based solely on guidance from the Centers for Disease Control and Prevention. But many immigration experts see the rule the same way today they did in March 2020, when it was enacted — as a politically convenient tool to achieve a different end.
Critics of former President Donald J. Trump said it was a transparent move to shut down virtually all immigration to the United States, an opportunity that, before the pandemic, he and immigration hard-liners in his administration, like Stephen Miller, a senior adviser, could only dream about.
Mr. Biden’s decision, to many experts, seems equally transparent, and equally political. But to what end? The answer depends on what you think about the administration’s overall record on immigration, and where it might be headed.
For his supporters, keeping Title 42 is a pragmatic calculation, the equivalent of placing a giant “Closed — Back in 10 Minutes” sign on the country’s front door until it can reform the nation’s immigration system.
For his critics, the decision shows a fundamental bankruptcy at the heart of Mr. Biden’s approach. Lacking a coherent plan, they say, the White House has defaulted, relying on an immoral policy left over from the previous administration.
It’s important to start with context. While many public health experts argue that Title 42 does little to stop the spread of the coronavirus — pointing out that migrants are no more likely to carry the virus than people already in the country — not everyone agrees. In light of the Delta variant, the Biden administration argues that slowing the flow of people into the country is reasonable.
And the administration has exempted unaccompanied minors from the policy, a move that represents something of a down payment on Mr. Biden’s promise to make the system more humane.
Then there’s this summer’s unexpectedly sharp increase in border crossings. July saw about 210,000 people apprehended at the southern border, the most in two decades. The administration has been scrambling to set up shelters and processing capacity, but it is still playing catch up.
All of this is fodder for Republicans, who have made immigration a go-to issue, a cudgel deployed daily by any prospective presidential candidate worth his MAGA hat.
Gov. Ron DeSantis of Florida has accused the Biden administration of letting migrants with Covid-19 slip through the system and make their way to Florida, a largely unsubstantiated charge. And Gov. Greg Abbott of Texas, who has promised to continue to build Trump’s border wall on his own, accused Mr. Biden of planning a “catch and release” policy toward migrants.
Fair or not, the attacks seem to be having their intended effect. A poll conducted in June by The Washington Post and ABC News showed just 33 percent of respondents approved of the president’s job on immigration, while 51 percent disapproved.
So yeah, it’s a mess.
Mr. Biden’s supporters say he is doing the best he can with a terrible hand, and that behind the scenes, the president has been moving fast. According to Muzaffar Chishti, a senior fellow at the Migration Policy Institute, he has taken 155 actions on immigration — half of them rescinding actions by the previous administration — compared with the 450 Trump took over his entire term. Last month the White House released a blueprint promising a “transformative vision” for immigration reform, including redirecting resources from building Trump’s wall to processing migrants and streamlining asylum applications.
“It’s the most bold immigration agenda from any president in a long time,” Mr. Chishti said.
But all that will take time, and so the administration is asking for patience from both migrants and immigration advocates.
“We are also — and critically — sending a message that now is not the time to come to the border,” Alejandro Mayorkas, the homeland security secretary, said in March. “Do not take the journey now. Give us time to build an orderly, safe way to arrive in the United States and make the claims that the law permits you to make.”
Implicit in that message, of course, is the fact that the administration is focused on other issues right now — Covid, infrastructure, the spending package. And precisely because immigration is a hot-button topic, they argue, it’s better to make changes quietly and incrementally. Rescinding Title 42 just isn’t in the president’s playbook right now.
His critics on the left believe it should be — and say the fact that it isn’t indicates a lot about his priorities.
Theirs is, first and foremost, a moral argument: Whatever its public health merits, Title 42 is tainted by its origin in the Trump administration. And requesting patience from migrants who have fled often desperate circumstances and trekked thousands of miles is quite the bold ask.
Critics of the Biden administration say it is stuck in the same “deterrence first” mind-set as the Obama administration a decade ago. But they also say it’s worse this time, because at least Barack Obama had a plan, mixing deterrence with a push for big legislative reforms in Congress. Mr. Biden’s approach, they say, is just a grab bag of changes that might make sense on paper but will have little benefit on the ground.
According to this reading, the reliance on Title 42 is also about buying time for policy changes. The $3.5 trillion reconciliation package underway in Congress includes money to create a legal pathway to citizenship for undocumented immigrants, as well as for border security. A victory, Mr. Biden’s critics say, will give him cover to continue to mark time on the border.
Regardless of its justification, Title 42 might not be around for long. After last week’s announcement, several progressive groups led by the A.C.L.U. announced they would restart a suit demanding an end to the policy, saying it violated a number of immigration statutes.
The administration isn’t backing down. In a declaration filed in response to the suit, David Shahoulian, the assistant secretary for border and immigration policy at the Department of Homeland Security, warned that “enjoining the application of the C.D.C. Order to families would exacerbate overcrowding at D.H.S. facilities and create significant public health risks.”
But it’s worth wondering how serious the administration is about fighting the suit. After all, keeping Title 42 in place risks yet another blow up with those on the left, at a time when Mr. Biden needs them on board for the rest of his agenda. If that’s the case, perhaps the best outcome would be for a federal judge to take that decision away from them, and let the administration say, “At least we tried.”
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