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Title 42 Was Never Going To Fix Illegal Immigration

El Paso border fence
Image CreditJohn Davidson/The Federalist

Only an actual border can stop illegal immigration — preferably a border with a really high wall.


Whatever your view of immigration, there can be no doubt that the Biden administration’s border policies have been an abject failure. This is especially true of Title 42, the pandemic-era public health order that for the last three years, under both the Trump and Biden administrations, allowed border officials to expel illegal immigrants quickly back to Mexico.

Title 42 came to an end on Thursday when the Covid public health emergency officially ended, and its ending has coincided with what can only be described as absolute chaos along the U.S.-Mexico border this past week.

Border Patrol agents are now arresting more than 10,000 illegal immigrants every day. If you have no context for that figure, consider that in March 2019, at the onset of the last border crisis, Border Patrol was arresting 4,000 illegal immigrants a day. At the time, President Obama’s Secretary of Homeland Security Jeh Johnson said, “I know that 1,000 [apprehensions] overwhelms the system and I cannot begin to imagine what 4,000 a day looks like.”

What 10,000 a day looks like is a humanitarian catastrophe. Put bluntly, Border Patrol has nowhere to put these people. If it keeps up for much longer, we’ll see a string of what amount to massive migrant camps appear across south Texas — think of the encampment of 15,000 Haitians under a bridge in Del Rio, Texas, in September 2021, multiplied many times over all up and down the border. 

What 10,000 a day means is that our southwest border is collapsing. The Texas cities of Laredo, El Paso, and Brownsville have issued emergency declarations, as has New York City Mayor Eric Adams. Texas Gov. Greg Abbott, who still refuses to order state law enforcement and military units to arrest and deport illegal immigrants caught crossing the Rio Grande, has deployed a new National Guard unit, the Texas Tactical Border Force, to try to “deter” illegal crossings.

It’s unclear what this will entail, but video circulating on Twitter this week taken by Todd Bensman of the Center for Immigration Studies showed Texas DPS troopers blocking a group of migrants along the north bank of the Rio Grande. 

That’s a step in the right direction, but as a long-term strategy, rolling out razor wire along stretches of the Rio Grande isn’t going to cut it. Neither is the Biden administration’s plan to send hundreds more U.S. Citizenship and Immigration Services (USCIS) personnel to the border as part of a just-finalized new policy to process migrants within days of their arrival and deport them if they fail an initial screening. The USCIS agents will be joined in this effort by some 1,500 military troops — not to enforce the border but to do data entry, mostly.

But the new Biden policy amounts to little more than a slap-dash propaganda campaign to make it look like the administration is doing something about the crisis. It might result in fewer illegal immigrants ultimately being granted asylum, but it does nothing to reduce the use of catch-and-release as America’s de facto border policy, because it allows anyone who is denied a credible fear claim to appeal to an immigration judge — a process that takes years to complete thanks to the growing backlog of asylum cases in the system.

And since Biden’s new rule does nothing to speed up the adjudication process, it just means this backlog will grow faster than it was before, providing an even greater incentive for illegal immigrants to cross the border and file bogus asylum claims, knowing they will be released with work authorizations as their cases wind their way through the system. On some level, even Biden knows this, which is perhaps why he said this week that the border was going to be “chaotic for a while.”

What all of this reveals is that our entire corpus of immigration law is woefully defective and has been for many years. It’s this defective underlying body of law that made bureaucratic expedients like Title 42 necessary to control the border. If we don’t fix the law, though, we’ll never be able to fix the border — no matter how many Title 42-like policies a future GOP president might institute.

Recall that Title 42 was invoked during the early days of the Covid-19 pandemic as a tactic to slow the spread of the disease. In that context, it made sense. The last thing you want in a pandemic is uncontrolled mass illegal immigration.

But it soon became clear that ending Title 42 would risk unleashing complete chaos at the border. For as much as the Biden admin denounced Trump’s border policies, he kept Title 42 in place for years as a way to manage the flow of illegal immigration long after the pandemic justification for it was obsolete. 

Now that Title 42 is finally ending, we see the federal government’s immigration bureaucracy grinding into action once again to manage a situation our defective laws cannot handle. Whatever the outcome of Biden’s plan, it amounts to government by administrative fiat, demonstrating the ongoing corruption of the rule of law in America and the triumph of the administrative state. 

In the end, the only thing that will end the ongoing border crisis is to fix our asylum and immigration laws so they can’t be exploited by illegal immigrants making bogus asylum claims. Programs like Title 42, or even the Trump administration’s Remain in Mexico policy, are stop-gaps at best. To secure the border, we’re going to need laws that mandate a secure border, which means closing the asylum loopholes, immediately deporting those who cross illegally, and building a really high wall.

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