The Memo: Biden faces mutiny on Title 42

The deadline for the lifting of Title 42 is a month away — but the Biden administration is under enormous pressure to stall the timeline amid a Democratic mutiny.

Nine Democratic senators — almost one in five of the party’s members in the upper chamber — have now expressed concerns about the ending of the controversial Trump-era policy.

Title 42, though rooted in an old statute, has come to mean the policy of barring migrants, including asylum seekers, from entering the United States during the COVID-19 pandemic on public health grounds.

The Centers for Disease Control and Prevention (CDC) announced at the start of this month that the policy would end on May 23.

But some Democrats have balked, fearing the political fallout from a likely spike in unauthorized border crossings. 

Media reports in recent days have suggested the Biden administration is considering delaying the end of the measure. 

But a delay would not necessarily insulate the president from political damage. He would just come under attack from his left flank instead, given that progressives are frustrated it has taken so long to line up the policy for elimination in the first place.

When the initial news of the measure’s end was announced, one leading progressive, Rep. Ayanna Pressley (D-Mass.), responded by saying: 

“After consistently calling on President Biden to end Title 42, I’m relieved to see the administration has finally heeded our calls. Asylum seekers and their allies in the movement and in Congress have been organizing day in and day out to repeal this harmful policy.”

The dispute over when and how to end Title 42 has now affected the question of COVID-19 aid. An attempt to pass a $10 billion pandemic relief measure in the Senate failed just before the recent recess. Title 42 will be top of the agenda when the Senate returns next week.

Amid the deepening mess, some figures usually supportive of Biden are exasperated by how the policy shift has been handled.

“The administration should have done this last year and they should have been prepared to defend and explain their decision this year,” said Frank Sharry, the executive director of America’s Voice, an organization that advocates for liberal policies on immigration.

“The fact that they are leaving Democrats on all sides of the issue, as well as advocates for refugees, twisting in the wind, is somewhere between incompetent and cynical,” he added.

The fact that someone like Sharry — a longtime Washington player who is far more likely to blast Republicans than Democrats — is willing to express such views publicly is emblematic of a broader frustration with the way the issue has panned out.

Progressives, human rights groups and advocates for migrants argue that Title 42 is fundamentally unjust. People have a legal right to claim asylum in the United States, they note. 

But there is also virtually no one, on any side of the debate, who sees Title 42 as truly rooted in public health concerns. It has always been seen as a policy primarily aimed at deterring migration. During the Trump presidency, it was closely identified with the president’s aide Stephen Miller, a longtime hard-liner on migration issues.

Just about everyone, whether on right or left, also agrees that the lifting of the measure is sure to cause an additional spike in unauthorized border crossings, which are already at their highest point in recent decades.

In March, there were more than 221,000 such encounters between U.S. authorities and would-be immigrants and asylum seekers. The Department of Homeland Security has been preparing for up to 18,000 migrants per day once Title 42 is lifted — an astronomical number that would equate to more than 500,000 per month.

It’s little wonder that Democrats, facing a difficult midterm election campaign amid other problems like high inflation, are spooked.

Democratic strategist Hank Sheinkopf told this column that Democrats are already worried about the climate they face. When it comes to immigration, he added, “They are worried about throwing this on the pyre — another log in the fire.”

The warnings about lifting Title 42 have been voiced most loudly by two groups of senators. 

One group consists of senators in competitive battles for reelection: Sens. Maggie Hassan (D-N.H.), Mark Kelly (D-Ariz.), Catherine Cortez Masto (D-Nev.) and Raphael Warnock (D-Ga.). 

The other is a trio of moderates: Sens. Joe Manchin (D-W.Va.), Kyrsten Sinema (D-Ariz.) and Jon Tester (D-Mont.).

Kelly has described the idea of ending Title 42 as “wrong” while Manchin has called it “frightening.” Others like Warnock and Cortez Masto have focused on the timing and what they see as a lack of proper preparation for the expected surge.

Even key Biden allies such as Sen. Chris Coons (D-Del.) have expressed concern. Appearing on CBS’s “Face the Nation” last weekend Coons cited rising COVID-19 infections in his home region and said of ending Title 42 that he hoped the decision would be “reconsidered appropriately.”

Republicans, meanwhile, have been piling on, accusing the Biden administration of being responsible for what Sen. Ted Cruz (R-Texas) has termed a “catastrophe” when it comes to border security.

Biden has little political capital to draw on when it comes to immigration. A CBS News/YouGov poll earlier this month showed his handling of the topic winning the approval of just 38 percent of adults, and the disapproval of 62 percent. 

Fifty-two percent of adults in the poll believed that the administration “should be tougher” on migrants trying to cross the border. More than one-in-four Democrats held this view.

Meanwhile, the complications keep piling up for the president.

On Thursday, more than 20 states asked a federal judge to immediately bar the Biden administration from lifting Title 42.

Earlier in the day, Biden had to clean up a confusing answer he had given to a reporter’s question, in which he appeared to conflate Title 42 with the separate issue of the federal mask mandate for air passengers and other travelers.

Those are the kinds of modest missteps that Biden can’t afford as the knot around Title 42 grows harder to unpick.

Meanwhile, even advocates of removing Title 42 look warily toward the midterms. 

Some also look back at how the issue might have been handled very differently.

“The idea of ‘Let’s wait until the springtime of an election year to do this tricky thing that is going to cause divisions in our party!’” Sharry complained. “It was never going to be easy for the administration to do this, which is why they should have ripped the Band-Aid off early.”

The Memo is a reported column by Niall Stanage.