When a federal judge temporarily barred the Biden administration from ending the migration health policy known as Title 42 on May 23, the White House found itself in a familiar spot — reined in on pandemic policy by the judiciary branch of government.
President Joe Biden extended the Centers for Disease Control and Prevention’s eviction moratorium, only to have it blocked by the Supreme Court last August. The same thing happened with the administration’s vaccine mandate for private businesses and, most recently, with the federal mask mandate, frustrating Democrats and left-liberals who see these moves as damaging and, sometimes, politically motivated.
BIDEN BARRED FROM ENDING TITLE 42 AT BORDER BY FEDERAL JUDGE
“The judge’s notice takes authority away from the scientists and public health experts at the [CDC] who have said that the Title 42 order has no current epidemiologic or medical basis,” said Claudia Flores, associate director for the Immigration Policy Program at the Center for American Progress. “This decision comes from a Trump-appointed judge in a lawsuit filed by Republican states. The stakes around Title 42 couldn’t be more political, albeit disappointing.”
The latest setback is only temporary and may still leave room for the White House to rescind the border expulsion policy as expected May 23.
Like the others, the border issue has proven politically tricky for Biden.
House Minority Leader Kevin McCarthy led a group of congressional Republicans to the U.S.-Mexico border yesterday, saying “a country without a secure border is no longer a country” and calling for Title 42 to be extended. Nine Senate Democrats have also come out against plans to scrap the measure.
On the same day as McCarthy’s border jaunt, a group of Hispanic House Democrats met with Biden at the White House to make the opposite case.
“The Congressional Hispanic Caucus made it very clear that the Title 42 policy is a public health emergency policy that was instituted under the Trump administration during its hate and fear anti-immigrant agenda,” caucus Chairman Raul Ruiz told reporters following the meeting.
The dynamic puts Title 42 in line with the mask mandate and eviction moratorium, with liberals on one side and conservatives and centrists on the other, meaning the judge’s decision may prove to be a backdoor victory for Biden.
“This could cut either way for the administration,” said Brookings Institution senior fellow John Hudak. “If the president truly wants Title 42 to be lifted, then this is obviously a huge disappointment for him. If, however, the president has found himself painted into a difficult corner politically, where part of his base is demanding it be lifted but most Americans and a number of Democratic senators support it remaining in place, he could be left with a more politically popular outcome without being blamed by his base for the decision.”
Presidents can often be politically empowered by the courts making a popular decision, Hudak argues, as the president can play both sides by saying he wanted a certain decision to be made but that the courts are to blame.
Like the mask mandate revocation, a Trump-appointed judge ruled against Biden on Title 42 — in this case, Judge Robert R. Summerhays of the U.S. District Court for the Western District of Louisiana.
On a Tuesday afternoon call with reporters, Biden administration officials said that after Title 42 is gone, they plan to expand the use of expedited removal through another measure known as Title 8. Officials said they plan to comply with the court’s order despite disagreeing with it.
The administration has also repeated that Title 42 is technically a public health measure, not an immigration measure, and that it would not overrule the CDC in order to extend it.
Public opinion appears to be on the side of keeping the policy. While a recent Gallup poll found that only 5% of respondents listed immigration as the most important problem facing the United States, 60% said they worried about illegal immigration a great deal or a fair amount.
Despite the administration’s words, the strategy of pointing at court decisions to appease progressives may be one the White House relies on too heavily, argues the American Enterprise Institute’s Philip Wallach.
“The Biden administration has come to rely on losing in court as a way of changing policies without shouldering the responsibility for doing so,” he said. “Rather than directly rebuff the demands of progressive activists, the administration prefers to go along with them and then have Trump-appointed judges tell them that the course of action is illegal.”
Given the bipartisan opposition to ending Title 42, Wallach added, the White House was almost certainly pleased with the outcome.
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Even with Title 42 in place, some 221,303 immigrants were arrested illegally crossing the border in March, a record for the Biden administration. Of those, 109,549 were expelled under Title 42. If the measure expires, it could unleash chaos not only at the border but in the midterm elections as well.
Nonetheless, liberals continue pushing to end the measure, calling it a humanitarian issue because it keeps asylum-seekers from entering the U.S.
“The reality is that the policy prevents vulnerable asylum-seekers and migrants from exercising their rights to make their claims for asylum — and not lifting has grave humanitarian consequences,” said Flores. “Democrats should continue to focus on making a strong case for reforming the immigration system in a way that best reflects American values and needs.”
