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The future of Title 42


The Biden administration is spending the week explaining the plan to lift pandemic restrictions at the border. These are the restrictions known as Title 42. They were first put in place back during the Trump administration. Opponents say that ending Title 42 is a bad idea, and they are challenging the plan to do so in court and in Congress. Meanwhile, Homeland Security Chief Alejandro Mayorkas is defending it to lawmakers on Capitol Hill this week.


ALEJANDRO MAYORKAS: With the Title 42 public health order set to be lifted, we expect migration levels to increase as smugglers seek to take advantage of and profit from vulnerable migrants. We will continue to enforce our immigration laws.

KELLY: So among the questions in play, what may happen to people seeking asylum at the southern border - also, how the politics will play out here, especially with midterm elections looming.

Well, let's bring in two of our correspondents who have been watching this closely - NPR political reporter Deepa Shivaram and NPR's Joel Rose, who covers immigration. Hey, you two.



KELLY: Joel, you first - lay out the basics. How does Title 42 currently work, and what is the gist of the plan to end it?

ROSE: Sure. So this is a Trump-era border policy that started more than two years ago. It allows immigration authorities to bypass normal immigration procedures in the name of protecting public health, you know, and rapidly expel migrants without giving them a chance to seek asylum under U.S. law. Immigrant advocates say that has forced migrants back to danger in Mexico or in their home countries. The Centers for Disease Control and Prevention has said that Title 42 is no longer necessary, and the Biden administration has been preparing to lift the restrictions on May 23 and insists, you know, as you say, it does have a plan to deal with a likely influx of migrants.

This is actually the second time DHS has released a plan. This one has more details, more emphasis on enforcement of immigration laws that were on the books before the pandemic. And it seems, you know, intended to counteract the message we've heard a lot from Republicans and also from some Democrats that the administration has no plan.

KELLY: Yeah. Deepa, jump in here because Democrats have been asking for this plan. There are a lot of Democrats who are also nervous about the current plan. What does that look like? - explain.

SHIVARAM: Right. So since DHS has released these new details, we haven't heard much of a response from Democrats. And the White House actually held a briefing call with Capitol Hill yesterday after this updated plan was released. But the same Democrats who were expressing these concerns haven't really responded yet. And meanwhile, Republicans are filling that void with their own rhetoric about how this is, quote, "Biden's border crisis."

This is what Republican Senator James Lankford said earlier today.


JAMES LANKFORD: It is policy insanity what they're doing. The plan that we were given yesterday, this plan statement that came in from Alejandro Mayorkas, this plan that was supposed to define out for us is not a plan at all. It's basically how they're going to move people into the country faster.

SHIVARAM: And Republicans keep pointing to the part in the plan where Mayorkas acknowledges that the rise in migrant encounters at the border is a strain to the current immigration system.

KELLY: Joel, right now, Title 42 is in place, and we're seeing enormous numbers of migrants being apprehended at the southern border. Who are they?

ROSE: Yeah, the majority are from Mexico and Central America, but, increasingly, they are coming from even farther away places like Cuba, Venezuela, even Ukraine. They are often fleeing violence, corruption and poverty in their home countries; things, by the way, that the Biden administration says have very little to do with U.S. immigration policy.

But many Republicans disagree with that. They argue that these are, overwhelmingly, economic migrants who are really here to work and who are filing flimsy asylum claims in order to, you know, sort of game the U.S. immigration system.

SHIVARAM: Right. And what immigration advocates are also saying here is that Democrats are losing out on an opportunity to define where they stand on immigration and supporting asylum-seekers, which is something that won them elections in 2018 and 2020. So while Democrats have a chance to stand their ground on removing Title 42, they haven't been a united front on that at all. And what these immigration advocates are saying right now is that that might have a detrimental impact on Democrats turning out their base voters in the midterm elections this November, especially at a time when voter enthusiasm is pretty low for the party.

KELLY: Well, we mentioned legal challenges. I know several states have challenged this plan to lift Title 42. Where does that stand?

ROSE: Yeah. So far, those challenges are going well for the states. More than 20 states have joined a challenge filed by Arizona and Missouri and Louisiana. The federal judge in Louisiana who is hearing that case has granted a temporary restraining order to stop the Biden administration from beginning to phase out Title 42. The judge also says the states are likely to prevail on the bigger question of whether or not the CDC went through the proper process to end Title 42.

And, you know, this is not the only example of the Biden administration trying to end a Trump-era border policy and having a difficult time in court. Yesterday, the Supreme Court heard arguments about the Biden administration's attempt to terminate the policy known as Remain in Mexico, which forced migrants to wait south of the border for their immigration court hearings. The Biden administration tried to end that policy, too, but was blocked by a federal judge. And, you know, immigrant advocates say this is like the dead hand of the Trump administration and its allies continuing to tie the hands of the Biden administration when it comes to the border and asylum.

KELLY: And meanwhile, Deepa, speaking of places where this could be challenged, the White House has said if Congress wants to weigh in and get in on the act here, they can. Are they likely to?

SHIVARAM: Right. So we've seen Republicans already hold up a COVID relief bill, trying to add in a vote on Title 42. That happened before Easter. And it's possible that we see it again with Congress voting to provide more aid to Ukraine soon. So that is a possibility.

But even though the White House has said that Congress could act legislatively on Title 42, we heard press secretary Jen Psaki say earlier this week that, you know, one way or another, Biden isn't really ready to dismiss or sign potential legislation on Title 42. So it's kind of adding to this sort of confusing element of the White House's messaging on Title 42 as well. But the thing to keep an eye out for this week, especially tomorrow, is this House Judiciary Committee hearing where DHS Secretary Mayorkas is going to be speaking, and there will be some partisan politics playing out there as well.

KELLY: And just real quick, Joel, the timing here - I mean, if the plan does end, how quickly could that happen?

ROSE: Well, the - Title 42 is supposed to end on May 23, but a lot of time for things to happen in court or on the Hill between now and then.

KELLY: Indeed, so much in play. NPR's Joel Rose and Deepa Shivaram, thank you, you two.

ROSE: You're welcome.

SHIVARAM: Thanks. Transcript provided by NPR, Copyright NPR.

Joel Rose is a correspondent on NPR's National Desk. He covers immigration and breaking news.
Deepa Shivaram is a multi-platform political reporter on NPR's Washington Desk.
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