The phrase โTitle 42โ has emerged from deep in the federal statutes this spring to carry heavy political weight.
Title 42 has become shorthand for โborder control.โ
Politicians from Republican Attorney General Mark Brnovich to Democratic U.S. Sen. Mark Kelly are warning that lifting Title 42 could increase illegal crossings at the U.S.-Mexico border. Brnovich is, as always during his current campaign for U.S. Senate, filing a lawsuit about it. Almost everyone is plucking the border-fear nerve by citing the obscure statute.
โIf Title 42 is ended, there will be a flood of illegal immigrants like we have never seen before,โ Republican Mick McGuire said in an April 14 fundraising email for his campaign for U.S. Senate.
But Title 42 is not even an immigration law. Title 42 isnโt really about border control, either. It is just the latest in a series of stand-ins for the changes to immigration law and practice that we need but have been unable to achieve the right way, through Congress.
So what is Title 42 really? Title 42 USC 265 is a law that, originally, allowed the U.S. Surgeon General to stop people from entering the United States from a country where a communicable disease is present if โthere is serious danger of the introduction of such disease into the United States.โ
After the law was first passed, in 1944, that power was transferred to the Centers for Disease Control and Prevention. Formally, the decision is not even in the presidentโs control, though in practice it is.
The law has seldom been used. But Stephen Miller, the former Trump administration adviser who strived to minimize immigration, knew of Title 42. He proposed using it to shut down borders in 2018 and 2019, before a better excuse came in 2020.
Even when the COVID-19 pandemic arrived, though, the Trump appointees at the CDC refused to implement Title 42 as a border control measure, saying it was unnecessary. It only came into force because then-Vice President Mike Pence demanded that the CDC use it.
Ineffective deterrent
So it went into effect in March 2020. Since then, as political candidates like Karrin Taylor Robson will tell you, it has been used 1.7 million times. That doesnโt mean 1.7 million different people were turned back under Title 42, though.
The arguments in favor of keeping Title 42 in place rest on the idea that it worked. Itโs certainly true that these Title 42 expulsions are simpler for Border Patrol agents than the preexisting practices. They can simply send someone back across the line in a relative few minutes, as opposed to detaining the crosser, sending them to a Border Patrol station, inputting their personal data, checking for criminal histories and all that.
But has Title 42 really worked as border control even?
Aaron Reichlin-Melnick points to the increasing border apprehensions in the last two years and says clearly not. This is how Reichlin-Melnick, the senior policy counsel at the American Immigration Council, put it in congressional testimony on April 6:
โTitle 42 is neither a meaningful public-health measure nor a successful deterrent,โ he said, noting a telling statistic. โA staggering 94% of Mexican, Guatemalan, Salvadoran and Honduran single adult migrants apprehended in the last two years have been expelled under Title 42.โ
โIf Title 42 were a successful deterrent, we would expect such a near total border shutdown to reduce apprehensions at the border of that demographic. But that hasnโt happened. Since the start of fiscal year 2021, single adults from those four countries accounted for 1.5 million out of 2.5 million total apprehensions.โ
One of the key reasons for the increasing number of crossings: Repeat attempts. People expelled immediately had an incentive to try again as quickly as possible. They make up a healthy chunk of that 1.7 million, perhaps as high as 30%, the New York Times reported.
As Reichlin-Melnick told me Friday: โWith Title 42, the incentive is to cross the border over and over again until you make it through.โ
It isnโt even being used much in some parts of the border, especially where family groups dominate crossings. In the Yuma Sector, which politicians such as Robson use as a backdrop for campaign commercials, only 11% of those people apprehended by Border Patrol were returned using Title 42. Repealing it would likely have little impact there.
โConsequence deliveryโ
Now, we should probably entertain a hypothetical, one that Gov. Doug Duceyโs spokesman brought up to me.
โWould even more people have crossed if Title 42 werenโt in place?โ C.J. Karamargin asked when we discussed the governorโs support for maintaining Title 42.
Itโs possible, I suppose, but I think the number of repeat-crossings under Title 42 makes that unlikely. Existing law also plays a role.
Itโs easy to forget, given the current focus on Title 42, that this public-health law isnโt filling some blank spot in federal immigration statutes. There is a whole raft of laws, policies and practices that predate March 2020.
Michelle Mittelstadt, spokeswoman for the Migration Policy Institute, reminded me of a different phrase that predates Title 42 by about a decade: โConsequence delivery system.โ The phrase was used to describe Border Patrol analysis of the ways it imposed consequences on people crossing the border between ports.
After decades of โvoluntary returns,โ Border Patrol used a variety of means to impose consequences on people, and in 2011 started trying to measure the effects through the consequence delivery system.
The immigration system returned people through different ports of entry than where they entered, flew them home, issued formal removal orders with heavy consequences for returns, and charged people criminally, among many tactics. It worked to reduce repeat crossings โ the key measure they were trying to bring down.
Those laws and policies are still available โ in fact, many people consider some of them, such as the Operation Streamline court process, quite harsh.
Compelling proposals
The fear is that the removal of Title 42 will lead to a surge in migration. Maybe, but maybe it wonโt. A return to consequences for those who cross between ports of entry more than once could cut repeat crossings significantly.
But thereโs also the asylum process, which has been crippled by the use of Title 42. Allowing people to apply for asylum at ports of entries as law provides should shunt some people into legal channels and away from illegal crossings. We need to pour resources into processing those claims, winnowing out the clearly ineligible asylum claims as quickly as possible.
Just as important: Title 42 is not a needed public-health measure, if it ever was. Neither elected officials nor candidates should use it as a substitute for real laws, policies and proposals to deal with migration.
For years, officials and groups like the Migration Policy Institute have earnestly put out compelling proposals for how to deal with the movement of people in our region. The instituteโs four-pronged prescription:
Expand legal pathways for people to work temporarily in the United States.
Establish protection for threatened people in their countries and nearby.
Professionalize migration management in, and among regional countries.
Invest in sustainable development
Theyโre boring and perhaps predictable policy proposals. Theyโve largely been trapped in fruitless congressional debate.
But they are at least efforts to grapple with the problem directly, not through legal trickery like Title 42.
