The end of Title 42 restored border normalcy and due process

Last week, the Biden administration lifted the Title 42 order put in place by President Donald Trump, which for several years had in effect closed the U.S.-Mexico border to migrants. Rather than the feared stampede at the border, the end of Title 42 simply returned the border to the system that has stumbled along for decades.   

The task now is how to reform that system so that it responds effectively and efficiently to manage the 21st century of global migration. 

In 2020, Trump issued an order under Title 42, a public health law, which permitted the immediate removal from the country of asylum seekers fleeing violence and persecution.  Critics claimed that Trump relied on the public health law to rationalize mass expulsions; more generally, they said, he wanted to limit the number of immigrants in the U.S., which was consistent with his many efforts to restrict immigration.  

As few could miss, the Biden administration’s plan to end the Title 42 border closure made the news. Story after story raised the specter of an uncontrollable influx of migrants storming the U.S.-Mexico border. 

Given that the Trump Title 42 order had been in place for several years, many expected that the lifting of the order would be followed by a large, sustained increase in migration. Biden himself cautioned that it might take time for migration flows to stabilize.  

Responding to such fears, the Biden administration took steps to deter migrants from unlawfully entering the U.S. Indeed, troops were sent to the border. Restrictions on asylum applications also were put into place. Clear legal pathways for Haitians, Venezuelans, Cubans and Nicaraguans to flee nations plagued by violence and turmoil were also created to discourage all unlawful entry.   

But as it turns out, the end of Title 42 changed little along the U.S.-Mexico border. Migrants, families among them, still come seeking a better life or sanctuary from violence, and traffic has been manageable so far.   

The truth of the matter is that, as was the case for many years before the Title 42 order, there is a system in place to process the asylum and other claims of migrants. Although far from perfect, the system has operated and enforces the border consistent with the rule of law. 

The border closure through the Title 42 order was an easy and arguably unlawful answer to proponents of halting migration. But there is no longer a public health emergency that justifies the extreme measure of closing the border and denying rights to migrants. Title 42 is simply no longer a viable policy option. 

Moreover, there is no need for radical border closure. Ebbs and flows of migration have occurred regularly in U.S. history. Political turmoil and violence in Central America and Haiti in the 1980s and 1990s led to many U.S. government responses, such as the interdiction of boats of Haitians by Coast Guard cutters and the immediate return of migrants to Haiti. Policies were also put into place to detain large numbers of Haitians and Central Americans seeking asylum.  Congress added to the U.S. government’s toolbox in 1996 the expedited removal of migrants apprehended at the border without a credible asylum claim and the increased authorization of detention of migrants.  

Although some of these measures may be criticized (for example, when deaths occur in detention), they are preferable and lawful alternatives to an unsustainable and unlawful system of closed borders.   

The exaggerated fears of the end of Title 42 are now behind us. The hard work ahead is to improve our under-resourced migration system. The U.S. government has returned to a system that permits migrants to apply for asylum and have their claims decided by asylum officers and immigration courts. The difficult task is how to refine that system so that it operates efficiently and has the public’s confidence.    

Kevin R. Johnson is dean and Mabie/Apallas Professor of Public Interest Law and Chicana and Chicano Studies at the University of California-Davis School of Law.