Senate seeks long shot solution with Title 42 deadline on deck

Lawmakers are seeking a long shot legislative replacement for Title 42 ahead of its expiration on Thursday, which many worry will lead to a surge of migrants at the border. 

Republicans in both chambers are offering proposals on the immigration front, and last week Sens. Kyrsten Sinema (I-Ariz.) and Thom Tillis (R-N.C.) rolled out a bill that would effectively extend Title 42 protections — which allow migrants to be expelled at the border — for two more years.

The proposals are also giving the Senate’s most vulnerable Democrats the chance to stand firm on a border issue.

Meanwhile, the number of migrants crossing the U.S.-Mexico border is expected to grow — at least temporarily — once the pandemic emergency expires, marking the end of Title 42. Even in the days leading up to Thursday’s deadline, there’s been an apparent surge as more than 10,000 migrants were apprehended at the border on both Monday and Tuesday, a sign that migrant attitudes at the border are shifting ahead of the policy change.

Administration officials and congressional Democrats have spent weeks fretting over the political consequences of a migration surge, with some Democrats even calling for extensions to the Trump-era policy. 

“The problem is, if you want to go down the rabbit hole following the Republicans on ‘let’s be tougher on the border than them,’ you’re never going to win. It’s a political loser and, most importantly, it doesn’t solve the problem at the border. That’s why in the height of all the Trump enforcement provisions, people still flocked to the border,” Sen. Bob Menendez (D-N.J.) told reporters last week.

Still, some in the Senate are pursuing patchwork legislation to replace Title 42 with similar authorities for border officials.

“There are a lot of discussions around it. Obviously, the deadline is tomorrow and the administration was asleep at the switch. So this havoc is going to be wreaked on the communities at the border,” said Tillis.

His and Sinema’s proposal, unveiled after months of back-and-forth talks, would also hand protections to migrants who could face life-threatening circumstances upon return to their home country and those with acute medical needs.

“Clearly we would like to do more, but I don’t know what in the short amount of time we have before Title 42 gets lifted that we can get done,” Tillis added. “The chance we can move something through regular order on the short timeline we have to work with here is pretty unrealistic.” 

Sens. John Cornyn (R-Texas) and Joe Manchin (D-W.Va.) were the two lone cosponsors when the legislation was unveiled, but it gained more support from GOP leadership as Sen. Shelley Moore Capito (R-W.Va.) threw her weight behind it. 

“For over two years, the Biden administration has failed to grasp the ongoing crisis at our southern border. Now, as we approach the end of Title 42 authority, which has been a useful tool in trying to stem this flow, I fear the Biden administration has failed to adequately prepare for when the authority expires,” said Capito, the No. 5 Senate Republican. 

The bill also won support from the moderate Democratic wing as Sens. Jon Tester (Mont.) and Sherrod Brown (Ohio) told The Hill they are supportive of the two-year addendum. 

“I’m on it. For right now, it’s something that needs to happen to give them the tools to manage the situation,” Tester said.

“I think presidents of both parties have essentially failed on this. We’re not ready. We should extend it. We need to bring more doctors in and more court people to process these,” Brown told reporters. “We’ve got a lot to do still.” 

Tester, Brown and Manchin all occupy seats Republicans are targeting in 2024 and are considered among the most vulnerable Democrats in the Senate. 

Outside of moderates, Democrats have shown little willingness to support Sinema and Tillis’s effort. Menendez told reporters he still is behind his plan that calls for a pathway to citizenship for migrants and boosting humanitarian aid to some countries in the Americas. 

Sen. Catherine Cortez Masto (D-Nev.) was noncommittal about the two-year patch, saying she had to look at the “specifics” of the proposal. She noted that she backed Sinema and Tillis’s more expansive immigration bill that was rolled out late last year. 

More proposals are expected to arrive around the deadline as pressure increases. Sen. Dick Durbin (D-Ill.) is expected to roll out a new bill on Thursday, telling reporters it will focus on “the request that we received from the people on the border about enhancing and increasing their capacity.” 

He added he is hopeful talks can begin soon now that the House is expected to pass its border package on Thursday.

“I hope we can sit down and start working on it, see if there’s any common ground,” Durbin said.

Still, with no other game in town, the Sinema-Tillis bill could pick up steam if predictions of post-Title 42 chaos come true, a scenario Democrats increasingly fear as migrant encounters rise ahead of the policy’s end.

Although the political extremes in the Capitol disagree on almost everything border-related, legislators across the spectrum seem to agree the administration failed to prepare for the end of Title 42.

Along with Capito, Menendez has made a similar claim, as has Rep. Ruben Gallego (D-Ariz.), who is running for Sinema’s seat.

But there is no certainty on what will happen when Title 42 ends, other than most experts expect a significant — but likely temporary — uptick in border crossings.

That puts a damper on the urgency to legislate a fast Title 42 replacement in the Senate, where Democrats have little choice but to hold their breath and hope the administration makes the best of a difficult situation.

Still, immigrant advocates and border experts say there’s little need to replace Title 42, a policy many say was an undue politicization of pandemic fears.

“We have forgotten how we got here; this was never about public health, but rather a political response and a way for [Stephen] Miller to implement a policy that would stop people from seeking refuge in the U.S.,” said Vanessa Cárdenas, executive director of America’s Voice, a progressive immigration advocacy group.

“In doing so, not only have we turned back people who have a right to ask for asylum, but in the process, we have created a massive bottleneck at the border which has festered the last three years with devastating consequences to communities on both sides of the border.”

And many Democrats see a bill extending Title 42 as an unnecessary patch that would just extend the administration’s headaches at the border.

“The overall posture is that Title 42 was a temporary public health measure. We can’t keep putting things off — kicking the can is why we haven’t really been able to pass real immigration reform in 30 years. A two-year delay is not a permanent or comprehensive solution,” a Democratic aide told The Hill.