January 3, 2023

Title 42 Stays, but It’s the Wrong Policy

The Supreme Court stepped in, though that won’t fix the Biden administration’s dereliction of duty.

Joe Biden’s intentional border invasion continues apace, regardless of the Title 42 fig leaf the Supreme Court kept in place over the Christmas holidays.

Title 42 is a policy begun by Donald Trump’s administration using the pandemic emergency to justify immediately expelling illegal border crossers. Given Biden’s self-given mandate to undo everything Trump ever did, he instead flung the border open wide, including putting illegal migrants on expensive flights with destinations all over the country. And he did that all while clamping down on American citizens with tyrannical pandemic measures like vaccine mandates. Then, in September 2022, Biden declared that “the pandemic is over,” which on its face would make Title 42 a moot policy.

Yet Biden also justified his August student loan heist as necessary thanks to COVID. His duplicitousness has ironically put some Republicans in the unfortunate and contradictory position of arguing against COVID relief for student loans and for COVID relief for the border crisis. Such inconsistency is a “feature” of Democrat politics.

The Biden administration, led by Secretary of Homeland Security Alejandro Mayorkas, has told six big lies about Title 42 — primarily shifting blame for the border crisis to Congress, Trump, and “larger global trends,” while also claiming there’s nothing that can be done about it.

As for the Supreme Court, a 5-4 majority issued a stay of a district court ruling striking down Title 42, setting a full hearing for February. In the meantime, daily border crossings now exceed an eye-popping 8,000, and tens of thousands wait just across the border ready to claim asylum the moment they can no longer be expelled under Title 42. Even the Department of Homeland Security estimates that encounters (not crossings) could reach 18,000 per day without Title 42. Most individuals who are “encountered” are then released into the U.S., including distributed nationwide via the aforementioned flights.

That daily rate means “an annual pace of roughly 6.6 million per year — a population significantly larger than every major U.S. city except New York,” notes Andrew McCarthy. “That would be on top of the more than 6 million illegal aliens who have entered the United States since January 2021, when President Biden took office and recklessly dismantled the Trump border-security policies. This total of over 13 million would be larger than the populations of over two-thirds of the countries in the world.”

How bad is the border crisis? Even Denver, which in 2017 proudly joined the ranks of “sanctuary cities,” declared a state of emergency just before Christmas. In a statement, Mayor Michael Hancock explained, “This influx of migrants, the unanticipated nature of their arrival and our current space and staffing challenges have put an immense strain on city resources, to the level where they are on the verge of reaching a breaking point at this time.” Translation: Politicians’ mouths wrote a check the city can’t cash.

Nationally, the problem isn’t getting rid of Title 42. It’s Biden and Mayorkas’s deliberate and impeachable dereliction of the duty to enforce border security.

In this, Justice Neil Gorsuch was correct in his dissent: “The current border crisis is not a COVID crisis. And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.”

Increasingly, however, the political branches are more than content to pass the buck to the courts whenever it helps them avoid tough decisions. Then again, upholding basic Rule of Law by enforcing the nation’s immigration laws isn’t a tough decision; it’s fundamental to the job itself.

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