For Joe Biden, It’s Consequences Be Damned on Title 42

AMAC Exclusive – By Louis J. Senn

On Friday, at the request of 24 state attorneys general, a federal judge blocked the Biden administration from ending Title 42, keeping the Trump-era border policy in place that allows law enforcement to quickly expel illegal border crossers back into Mexico. But instead of using the ruling as cover to save face with radical open borders advocates who are pushing to loosen border security even further amid the most dramatic surge in illegal immigration in decades, the White House has doubled down and announced that it will appeal the ruling. With border agents already overwhelmed, the White House has shown that it has no intention of reversing course on its disastrous border policy anytime soon.

In April, the number of encounters at the southern border reached its highest total ever: 234,088. That figure represents a nearly 24% jump from the already high 178,795 encounters in April of 2021 and a staggering 53% jump from the 109,415 encounters in April of 2019 (during the pandemic year of 2020, Customs and Border Patrol reported just 17,106 encounters in April).

While April was among the worst months in history for illegal immigration, border officials have voiced concerns that this summer could be far worse – particularly if the White House succeeds in its appeal to end Title 42. Each month of this year has seen a dramatic uptick in illegal crossings, a trend line that would mean border agents are soon completely overwhelmed, while the White House does nothing to help. Even the Biden Administration knows the end of Title 42 will result in greater crossings, with DHS Secretary Alejandro Mayorkas saying recently that “When the Title 42 public health Order is lifted, we anticipate migration levels will increase, as smugglers will seek to take advantage of and profit from vulnerable migrants.”

Notably, of those crossings that took place in April of this year, almost half of them were expulsions under Title 42. Additionally, over 90% of the Title 42 expulsions were single adults, not families. Despite this being the highest number of encounters ever, CBP Commissioner Chris Magnus stated last week that “the fact is that our borders are not open.” Data from his own agency says otherwise.

Yet as with every other crisis facing the country, the Biden administration continues to suggest that the border isn’t their fault, when they will even admit it is a problem at all. Last month, Mayorkas wrote in a memo that “The Biden-Harris Administration inherited a broken and dismantled immigration system.” Never mind the fact that just a few months prior the Biden administration was insisting that the surge in illegal border crossings wasn’t a crisis at all, but just a seasonal increase – again despite what their own data said. They are still trying to sell both narratives: a seasonal increase and an inherited crisis.

The situation at the border is so bad that even Congressional Democrats are breaking with the White House.

In the Senate, incumbents and candidates have openly criticized ending Title 42. Mark Kelly (D-Az), a vulnerable senator whose race will go a long way toward determining the balance of power of the Senate, recently stated that “the Administration picked a rather arbitrary date to lift Title 42 without a plan in place.” He has good reason to be concerned – the citizens of Arizona will be increasingly unlikely to send a Democrat back to D.C. if the leader of the Democratic Party pursues policies that increase chaos at their very doorstep.

Fellow Arizona Democrat Kyrsten Sinema has also voiced her concerns, as have Catherine Cortez-Masto of Nevada and Maggie Hassan of New Hampshire, among others. In heated Senate battles in states like Pennsylvania, Wisconsin, Nevada, and Ohio, Democratic candidates have mostly come down in opposition to ending Title 42, making clear just how out of step other Democratic leaders feel Biden’s policy is even with Democratic primary voters.

Over in the House, vulnerable Democrats are also asking the administration to do something about the border. Texas Reps Henry Cuellar and Vicente Gonzalez, for instance, have expressed concerns about the administration’s insistence on moving forward with the termination of Title 42. Cuellar likely spoke for many vulnerable Democrats when he said, “Some of the actions by the administration are not helping Democrats…when it comes to immigration policies. Who’s listening to the border communities?” Apparently, not Joe Biden.

Even without individual members and candidates of the President’s own party sounding alarm bells, the precipitous drop in approval rating among key demographics should cause the administration to rethink its approach heading into already difficult midterm elections. A recent poll by Quinnipiac University showed that only 26% of Hispanic Americans – many of whom still live in border states – approve of Biden. That’s an almost 30% drop from the same poll a year prior. A recent Fox poll also showed that a majority of Americans want to keep Title 42 in place. Most astonishingly, about 50% of Democrats want to keep Title 42 in place. With the majority of the country united behind one policy, even in a controversial issue like the border, one has to wonder who exactly Biden is listening to.  

Friday’s ruling by District Judge Robert Summerhays offered an opportunity for the administration to accept a victory disguised as a defeat. However, Biden has once again snatched defeat from the jaws of victory, refusing to correct course even when all available evidence and incentive exists to do so.

Louis J. Senn is a lawyer living in Louisville, Kentucky. He previously served in the Trump administration.