by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The Centers for Disease Control and Prevention shouldn’t be a border-control agency.
Yet its public-health powers have become a crucial crutch for enforcement at the southern border. The Biden administration is still using the CDC’s so-called Title 42 order — pursuant to a portion of the U.S code dealing with health — to exclude migrants from the United States. The order was justified at the outset of the pandemic, when we were incapable of instituting at the border the sort of measures — social distancing and the like — recommended for minimizing the spread of Covid.
As the pandemic has waned, the public-health rationale has faded and Title 42 has become simply a way to stanch the flow of migrants at the border when Biden has destroyed or degraded all the other Trump-era border controls.
The administration has actually wanted to terminate Title 42 but got blocked by one judge. Now, another judge says the order has to go, although he is giving the Biden administration several weeks to figure out how it wants to handle a post–Title 42 border. (That important policy questions are now, in effect, decided not so much by Congress but by judges squinting at the Administrative Procedure Act is its own problem.)
Everyone agrees that lifting Title 42 will make a bad situation at the border worse. The Biden administration has made less use of the order than the Trump administration. Still, it is almost all it has in terms of ready enforcement tools.
In October, there were more than 200,000 apprehensions of migrants at the border, the highest number for any October on record. According to Art Arthur of the Center for Immigration Studies, the number was higher than the total for all Octobers between the years 2016 and 2020, and we had what was then considered a border crisis in 2019. Another estimated 64,000 migrants weren’t apprehended and got away in October.