News Politics

Scoop: Biden considers delaying Title 42 repeal

  • Hans Nichols
  • Jonathan Swan

President Biden’s inner circle has been discussing delaying the repeal of Title 42 border restrictions, now set to end May 23, according to a source with direct knowledge of the internal discussion.

Why it matters: The White House is looking for ways to buy time to avoid a massive influx of migrants that would add to already-historic border numbers. That already endangers Democratic incumbents in states that could decide the Senate majority in November.

  • Biden officials recognize they’re in a jam: moderate Democrats are pounding on them to delay the repeal but doing so would inflame the party’s progressive base. That includes members of the Congressional Hispanic Caucus, who are scheduled to meet with the president next Monday.
  • A full reversal of the decision to end Title 42, announced by the Centers for Disease Control and Prevention on April 1, is considered by Biden officials to be far less likely than a delay.
  • Reversing the decision would effectively force the White House to overrule the CDC.

Between the lines: The CDC’s Title 42 order was first issued in March 2020 under former President Trump.

It used the pandemic as a reason for turning back migrants attempting to enter the U.S., without the chance to seek asylum.

Biden has benefitted from the border restriction but also been reluctant to overrule the CDC throughout the pandemic — and is unlikely to start now.

  • “Title 42 is a public health authority from the CDC and we continue to defer to the CDC on its use and how long it will be in place,” White House spokesperson Vedant Patel told Axios.
  • “When it is no longer in place, migrants who attempt to enter the country unlawfully will be placed in immigration proceedings. Asylum and other legal migration pathways should remain available to those seeking protection, but those who don’t qualify will be promptly removed to their countries of origin.”

Behind the scenes: Biden administration officials have been arguing to their Democratic allies that keeping Title 42 allows for less immigration enforcement.

  • They say that because Title 42 is a rapid expulsion, migrants are free to try to re-enter the U.S. again after being expelled without facing consequences.
  • Once Title 42 is lifted, they say, the administration will properly process migrants. People who are removed after being processed would face more serious consequences than those being rapidly expelled under the current system.
  • Those White House arguments haven’t worked on some key Democrats, though.

Driving the news: The White House has faced unprecedented blowback from vulnerable House and Senate Democrats.

They’ve publicly — and loudly — questioned if the administration has an adequate plan to process the influx of migrants repealing Title 42 is expected to trigger.

  • Nine Senate Democrats, including Sen. Gary Peters of Michigan, chair of the Democratic Senatorial Campaign Committee, are urging Biden to reconsider his plan to end Title 42, Punchbowl News reported on Tuesday.
  • Endangered Democrats are bluntly and publicly warning of a political disaster in the midterms. They’re pleading with the White House not to give Republicans an opportunity to paint Democrats as the party of open borders.
  • “The politics are pretty simple,” Rep. Henry Cuellar (D-Texas) told Axios. “The Republicans are going to hit Democrats with those videos of people streaming into the United States.”
  • “Title 42 should be kept,” said Cuellar, who represents a border district in the Rio Grande Valley. “I know there’s a debate inside the administration, but I don’t know who is going to win on this one.”

The other side: The Congressional Hispanic Caucus meeting next Monday will serve as a reminder for Biden that a crucial part of his party’s base will be bitterly disappointed if he reverses course and extends Title 42.

  • “Asylum is a human right, and ending Title 42 is the right thing to do,” said. Rep. Jesús “Chuy” García (D-Ill.).
  • “Now that mask mandates are ending across our country, it is even harder for those who support Title 42 to say this policy is a matter of public health,” Garcia said.
  • Rep. Veronica Escobar (D-Texas) told Axios: “I hope the White House continues on its path to eliminating Title 42.”
  • “Let’s work together on addressing this as lawmakers. Title 42 shouldn’t be used as a substitute for real immigration policy.”

The big picture: The politics around Title 42 have also complicated Biden’s push for an additional $10 billion in emergency COVID-19 funding.

  • Five Democratic senators — including Sens. Mark Kelly (D-Ariz.) and Maggie Hassan (D-N.H.) — and six Republican senators introduced a bill before leaving for the spring recess focused on the topic.
  • It would prevent the administration from lifting Title 42 without a detailed plan in place to address a potential surge of migrants, Axios first reported.

By the numbers: As Axios has also scooped, intelligence officials have been bracing for an influx of migrants if Title 42 is ended — with some estimates from last month predicting a “mass migration event” of more than 170,000 migrants.

  • Title 42 has been used for approximately 1.7 million migrant expulsions.
  • Border apprehensions last month climbed to 221,000, the highest level since 2000.


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