Donald Trump is Promising to Restore Title 42
Bipartisan normalization of Title 42 was a big mistake.
One of the more outrageous elements of the United States’ pandemic response — alongside extended school closures — was the bipartisan use of Title 42, a 1940s-era public health law that, in the name of “slowing the spread,” allowed for migrants to be immediately expelled at the southern border and even forced onto planes back to their countries of citizenship. CDC scientists never believed there was a public health justification for Title 42, but the Trump administration — eager to implement a “Stephen Miller special” — pressured former CDC Director Robert Redfield and got its way. Terrified by Covid-19, a majority of Americans supported Trump’s decision.
While immigration advocates hoped the Biden administration would immediately end the policy in early 2021, it was not terminated until May 2023.
Over three years, millions of migrants — including many with valid asylum claims — were expelled at the southern border under Title 42. The Trump administration expelled 400,000 migrants with the policy and the Biden administration more than 2.28 million. According to White House sources, Biden’s immigration point person, Susan Rice — infamous for her hardcore anti-immigration politics — “developed a daily fixation with ensuring full capacity on flights operating under Title 42.”
Perhaps unsurprisingly, last week Trump announced he would “use Title 42 to end the child trafficking crisis by returning all trafficked children to their families in their home countries and without delay.”
At political rallies this year, Trump has also promised to restore Title 42, dishonestly claiming the policy will “keep sick people out of our country.”
Apart from the obvious international law and human rights issues associated with denying potential asylum seekers due process, weaponizing public health to “control the border” undermined the credibility of the U.S. federal government and what was arguably once the world’s leading public health agency, CDC.
Former CDC Director Rochelle Walensky personally approved Title 42 extensions. And the Department of Homeland Security — under both Trump and Biden — repeatedly lied about the intent of the measure:
“Title 42 is not an immigration authority, but rather a public health authority used by the Centers for Disease Control and Prevention to protect against the spread of communicable disease. Title 42 remains in place until May 23 and, until then, DHS will continue to expel single adults and families encountered at the Southwest border.”
That Trump is now brazenly promising to restore Title 42 to address human trafficking — an immigration problem that is entirely tangential to disease control — speaks to this bipartisan normalization of using public health measures to manage irregular migration. In 2021, the Biden administration even organized a kind of quid pro quo deal with Mexico where the country would be loaned AstraZeneca vaccine doses unapproved for U.S. use in exchange for more aggressively blocking Central American migrants from moving north.
Because Biden himself used Title 42 to expel over 2 million migrants, it will be close to impossible for him to attack Trump over a promise to restore the measure. It is incumbent on liberals to push back when public health measures, like Title 42, are weaponized to deny the vulnerable their basic human rights, such as the right to seek asylum. Yes, even during a pandemic. When liberals embrace right-wing populist “solutions” for solving complex social problems — see lengthy pieces published in The New York Times and Vox — they enable politicians like Trump to act maliciously.
If Trump is re-elected, he may use anything from malaria to Chagas disease as an excuse for restoring Title 42 at the southern border. Democrats will cry foul, but Trump will simply point to their past support for the law and plow ahead.
