The End of Title 42 Expulsions of Migrants—and What Comes Next

Tomorrow, the Biden Administration will finally end Title 42 “public health” expulsion of migrants on the southern border, after 3 years and some 2.7 million people expelled. The use of Title 42 caused great suffering for little or no benefit. It was also an egregious example of the abuse of “public health” emergency powers for unrelated policy goals. Biden plans to replace Title 42 with a combination of new policies, some of them good, but others very bad.

Though it is sometimes forgotten today, the ostensible rationale for the use of Title 42 was the need to curb the spread of the coronavirus pandemic. Indeed, the authorizing statute is a public health power granted to the Centers for Disease Control in order to prevent the “introduction” of diseases into the United States.

As a public health measure, Title 42 was a dismal failure. The original Covid variant and later ones such as Delta and Omicron all still quickly got into the US and swiftly spread throughout the country, despite Title 42 and other migration restrictions. Public health experts in both the Trump and Biden administrations knew early on that Title 42 had little if any effect on the spread of Covid. But first Trump and then Biden continued the policy for other reasons: Trump as part of his general anti-immigration agenda, and Biden because he hoped it would help curb politically damaging perceptions of disorder at the border.

In this way, the invocation of Title 42 over the last three years has been a particularly egregious case of the abuse of public health powers for the purpose of pursuing unrelated political goals. Conservatives and others who oppose such shenanigans in other contexts should object to it here, too. On top of that, the use of Title 42 under Trump and Biden was also illegal. The power to block “introduction” of a disease into the United States surely does not apply to a virus that has already established itself here on a large scale. Biden and Trump’s broad interpretation of the statute would give the CDC nearly limitless authority over immigration, thereby violating the major questions doctrine, and constitutional nondelegation constraints.

Biden’s imminent termination of Title 42 by ending the Covid-19 state of emergency is likely to moot out ongoing litigation over the policy. But these legal issues may well recur in the future, as the use of Title 42 in the Covid crisis may have set a dangerous precedent for its future invocation.

In the meantime, Biden plans to replace Title 42 with a set of new policies. Andrew Selee, president of the Migration Policy Institute, has a detailed overview here. As Selee notes, some of them involve expanding pathways to legal entry for would-be migrants, such as a new private sponsorship parole policy for migrants from four Latin American nations, which has already greatly reduced illegal border crossings by citizens of those nations.

But there is also a new set of restrictions on migrants seeking asylum that will make it far more difficult for them to try to obtain it by crossing into t