Biden May End Title 42 “Public Health” Expulsions of Migrants

In March 2020 the Trump administration issued the Title 42 Order. It was described as an emergency measure to stop the spread of infections in detention cells and other cramped settings. Border authorities were able to quickly expel border crossings to Mexico or their homelands without having to go through normal screening. This allowed them to avoid the usual immigration screening process and gave them the opportunity to apply for humanitarian protection.

U.S. Customs and Border Protection (USCBP) has conducted over 1.7 million “expulsions” in the 24 month period, most of them under President Biden.

While causing immense suffering and doing very little to prevent the spread of Covid-19, Title 42 expulsions were a failure. In this article, I discuss (pp. This article (pp. 439-40) explains that the Trump-Biden expulsions began and were continued by Biden primarily for political reasons.

It’s a positive thing that Biden will end expulsions. However, the White House hides behind the CDC skirts in an attempt to give the impression they are just following the science. This was in fact a White House-driven, and politically-driven policy.

The CDC’s pandemic record undercuts any argument that it should be granted wide discretionary power and broad judicial deference. This is because the agency can be relied upon to make decisions based on scientific facts. Both left and right have repeatedly made the agency vulnerable to political pressure. It happened again with Title 42 expulsions. This included the Supreme Court invalidating the Title 42 eviction moratorium, transportation mask mandates and school mask mandates.

Although government agencies are entitled to special consideration when they enact policies based on specialized scientific knowledge, this disinterested expertise is notable primarily for its lack when it comes the CDC’s involvement in Covid pandemic strategy. Trump and Biden used the agency’s scientific expertise to cover dubious policies that were actually adopted for other purposes. This should be noted by courts and all others.

The Title 42 policy was partially invalidated by the US Court of Appeals for DC Circuit. It ruled that while the CDC has the power to expel migrants from countries in which they may face torture or persecution, it does not have the right to do so to those where such people are most likely to be subject to violence. The Court of Appeals for the DC Circuit should have rejected the whole policy as it went beyond Congress’ authority and raised “major questions” and other nondelegation issues. These issues will be covered in detail in my forthcoming article, as well as the parallels to the earlier eviction litigation.

Legal questions aside, Trump shouldn’t have created this horrible policy, and Biden shouldn’t have continued it. It was cruel and inhumane, even if it were legal.