By Francesca Babetski, J.D. Class of 2023
While certain moments in immigration policy have been especially prominent in the media in recent years,1 the debate over immigration via the United States’ border with Mexico has been occurring for decades. During the 1960s and 1970s, the American federal government made it harder to legally enter the United States through Mexico.2 These policies responded to concerns like drug trafficking and Americans potentially losing their jobs to immigrants.3 During the same period, countries throughout Central and South America continually experienced various crises, including wars, increased violence, totalitarian regimes, economic turmoil, and natural disasters.4 This enduring instability has led the number of immigrants from these countries to the United States to increase dramatically.5 Those figures do not even count those who have unsuccessfully tried to enter the United States. After briefly dropping when COVID-19 caused the border to close in 2020, attempted migration spiked to the point that Border Patrol officers had approximately 199,777 migrant encounters in July 2021.6
This recent upward trend contrasts with two Trump administration policies aimed at restricting immigration via the border. The first of these policies, the Migration Protection Protocols (MPP; informally known as “Remain in Mexico”), began in January 2019.7 As its informal name indicates, this program began forcing asylum-seekers to wait in Mexico, often in dangerous migrant camps, for their applications to be processed instead of allowing them to cross the border and apply from within the United States.8 Between the program’s inception and March 2020, 70,000 migrants were affected.9 Once the COVID-19 pandemic began, the Trump administration invoked a second policy, 42 U.S.C. § 265 (“Title 42”), a decades-old law that permits the United States to expel certain migrant groups to mitigate a public health emergency.10 This law stopped migrants from crossing the border and expelled anyone who managed to cross it illegally without permitting them to apply for asylum.11 When President Biden took office in January 2021, however, his administration began exploring its options to end these two policies.12 The administration’s efforts to end both policies were met by several lawsuits. In Biden v. Texas, the question before the Supreme Court was whether the new administration could end MPP. On June 30, 2022, the Court ruled that the administration did have the authority to repeal MPP.13 In a separate case, on May 23, 2022, a federal judge enjoined the Biden administration’s plan to end Title 42.14 However, neither of these cases address the suitability of Title 42’s continued invocation.15
The Biden administration should have the ability to end Title 42, just as it has the ability to repeal MPP, for both legal and policy reasons. For one, the conditions that Title 42 itself requires for it to be implemented arguably never existed and, in any event, certainly do not exist now.16 Title 42 allows the United States government to exclude certain migrant groups for public health reasons when 1) “by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States” and 2) “this danger is so increased by the introduction of persons or property from such country.”17 Regarding the first requirement, the issue was moot by the time the Trump administration invoked Title 42 in March 2020 because COVID-19 had already been in the United States for at least two months.18 The fact that the disease was spreading rampantly enough for the United States to shut down in mid-March indicates that migrants from Central or South America, or, for that matter, anywhere else in the world, did not present a “serious danger” of introducing COVID-19 into the country.19
Even if one were to interpret “introduction” more broadly to include increasing the spread of COVID-19, there is ample evidence that any danger that these migrants presented in terms of introducing or spreading the virus does not rise, and never rose, to the level of “so increasing” the prevalence of the disease as Title 42’s own language requires.20 CDC officials initially resisted the Trump administration’s plan to invoke Title 42, claiming that there was no scientific evidence that migrants were causing case counts to significantly rise.21 Even if the law did help slow the virus’s spread in the initial months of the pandemic, a number of experts have said it is certainly no longer necessary given that vaccines are now readily accessible.22
In addition to this spotty legal foundation, the policy effects demonstrate that Title 42 has made the already disorganized and dangerous process of crossing the U.S.-Mexico border even worse. Indeed, the law has actually caused more attempted illegal border crossings.23 Because Title 42 provides simply for exclusion rather than detention or anything else that would carry a legal consequence, there is little to discourage migrants from trying to cross multiple times.24 This result is the opposite of what the Trump administration likely intended when it invoked Title 42.25
Further, the law has caused some migrants to take risky measures to try to enter the United States instead of waiting indefinitely in Mexico. An especially tragic example of this phenomenon occurred earlier this summer, when fifty-three people died due to the extreme heat in the tractor trailer in which they were smuggled across the border.26
Migrants dying as they try to illegally cross the border, perhaps because they feel they have no other options to get to safety within the United States, is sadly nothing new. Until our country has better, clearer process for people to legally cross the border, this chaos and death will continue. While the Biden administration can now stop MPP from contributing to these long-existing problems, Title 42 will keep creating dangerous, and sometimes fatal, obstacles as long as it remains in place. It is time for the judicial system to recognize that the current invocation of Title 42 is no longer legally valid—and may never have been—so that these disastrous policy implications can finally end.
. Key examples include former President Trump’s rhetoric about building a wall on the U.S.-Mexico border and his administration’s infamous “kids in cages” policies. See, e.g., Nolan D. McCaskill, Trump Promises Wall and Massive Deportation Program, Politico (Aug. 31, 2016, 11:26 PM), https://www.politico.com/story/2016/08/donald-trump-immigration-address-arizona-227612; Nick Miroff, ‘Kids in Cages’: It’s True that Obama Built the Cages at the Border. But Trump’s ‘Zero Tolerance’ Immigration Policy Had No Precedent, Wash. Post (Oct. 23, 2020), 12:19 PM), https://www.washingtonpost.com/immigration/kids-in-cages-debate-trump-obama/2020/10/23/8ff96f3c-1532-11eb-82af-864652063d61_story.html.
. See A Brief Legislative History of the Last 50 Years on the U.S.-Mexico Border, U. Ariz. Mex. Initiatives (Apr. 24, 2020), https://mexico.arizona.edu/revista/brief-legislative-history-last-50-years-us-mexico-border.
. See id.
 . See, e.g., Jane Lorenzi & Jeanne Batalova, South American Immigrants in the United States, Migration Pol’y Inst. (Feb. 16, 2022), https://www.migrationpolicy.org/article/south-american-immigrants-united-states; Erin Babich & Jeanne Batalova, Central American Immigrants in the United States, Migration Pol’y Inst. (Aug. 11, 2021), https://www.migrationpolicy.org/article/central-american-immigrants-united-states.
. See Lorenzi & Batalova, supra note 4 (containing a graph showing an increase from 561,000 South American immigrants in the United States in 1980 to 3,380,000 in 2019); Babich & Batalova, supra note 4 (containing a graph showing an increase from 354,000 Central American immigrants in the United States in 1980 to 3,782,000 in 2019).
. John Gramlich, Migrant Encounters at U.S.-Mexico Border Are at a 21-Year High, Pew Rsch. Ctr. (Aug. 13, 2021), https://www.pewresearch.org/fact-tank/2021/08/13/migrant-encounters-at-u-s-mexico-border-are-at-a-21-year-high/.
. See What Is the Migrant Protection Protocols “Remain in Mexico” Program?, A.B.A ProBAR S. Tex Pro Bono Asylum Representation Project, https://www.americanbar.org/content/dam/aba/administrative/immigration/probar-mpp-infographic.pdf.
. See Uriel J. García, Here’s What You Need to Know About Title 42, The Pandemic-Era Policy that Quickly Sends Migrants Back to Mexico, Tx. Tribune (June 28, 2022), https://www.texastribune.org/2022/04/29/immigration-title-42-biden/.
. See id.
. See Ariana Figueroa, Courts Take the Lead Role as U.S. Immigration Policy Remains in Limbo, Mo. Indep. (July 8, 2022, 7:00 AM), https://missouriindependent.com/2022/07/08/courts-take-the-lead-role-as-u-s-immigration-policy-remains-in-limbo/.
. Biden v. Texas, No. 21-954 (U.S. June 30, 2022).
. See A Guide to Title 42 Expulsions at the Border, Am. Immigr. Council (May 2022), https://www.americanimmigrationcouncil.org/sites/default/files/research/title_42_expulsions_at_the_border_0.pdf.
. See Uriel J. García, Supreme Court Rules Biden Administration Can End “Remain in Mexico” Policy, Sending Case Back to a Texas Court, Tex. Tribune (June 30, 2022, 6:00 PM), https://www.texastribune.org/2022/06/29/supreme-court-migrant-protection-protocols-remain-mexico-biden/.
. See infra notes 17-19 and accompanying text.
. 42 U.S.C. § 265. Note that the original version of this provision, enacted in 1944, gave the Surgeon General the power to make these determinations and decide to exclude certain groups; since a 1966 amendment, the director of the CDC has had that authority. See García, Here’s What You Need to Know About Title 42, The Pandemic-Era Policy that Quickly Sends Migrants Back to Mexico, supra note 10.
. CDC Museum COVID-19 Timeline, Ctrs. for Disease Control & Prevention, https://www.cdc.gov/museum/timeline/covid19.html (“January 20, 2020 [:] CDC confirms the first U.S. laboratory-confirmed case of COVID-19 in the U.S. from samples taken on January 18 in Washington state”)
. See id.
. See infra notes 21-22 and accompanying text.
. Associated Press, Pence Ordered Borders Closed in March over Objection of CDC Experts, L.A. Times (Oct. 5, 2020, 4:37 AM), https://www.latimes.com/world-nation/story/2020-10-05/mike-pence-close-borders-cdc-experts-refused (“Vice President Mike Pence in March directed the Centers for Disease Control and Prevention to use its emergency powers to seal U.S. borders, overruling scientists at the agency who said there was no evidence the action would slow the coronavirus.”).
. See Victoria Kim, A Pandemic-Related Health Order Has Contributed to a Surge in Border Crossings, N.Y. Times (June 28, 2022), https://www.nytimes.com/2022/06/28/us/title-42.html.
. See id.
. See id.; see also Aaron Reichlin-Melnick, Examining Title 42 and the Need to Restore Asylum at the Border, Am. Immigr. Council (Apr. 6, 2022), https://www.americanimmigrationcouncil.org/sites/default/files/research/ending_title_42_and_creating_an_orderly_humanitarian_protection_system_testimony.pdf (providing testimony Reichlin-Melnick gave to the U.S. House of Representatives Committee on Homeland Security in the form of a policy brief).
. See Associated Press, supra note 21 (“Lee Gelernt, deputy director of the American Civil Liberties Union’s Immigrants’ Rights project, described the [Title 42] order as ‘a complete bypass of the entire asylum system…’ … ‘This is what the Trump administration has been trying to do for four years and they finally saw a window,’ he added.”).
. Nicole Acevedo and Julia Ainsley, Authorities ID 47 of the Migrants Found Dead Inside an Abandoned Truck in San Antonio, NBC News (July 6, 2022, 4:09 PM), https://www.nbcnews.com/news/latino/authorities-id-47-migrants-found-dead-abandoned-truck-san-antonio-rcna36931.