Jurisprudence

Why Has Biden Embraced One of Stephen Miller’s Cruelest Immigration Policies?

Two small children wrapped around their father's back and torso as he wades through a river
A Haitian father carries his children across the Rio Grande into Del Rio, Texas, from Ciudad Acuna, Mexico, on Sept. 23. John Moore/Getty Images

A previously obscure public health law known as Title 42 is quickly becoming a flashpoint in a struggle over the Biden administration’s rapid expulsion of thousands of migrants—including Haitian asylum-seekers—from American soil. On Monday, Politico reported that Harold Koh, a senior State Department legal official, is resigning from his position in the Biden administration because of its implementation of Title 42, which Koh called “illegal,” “inhumane,” and “not worthy of this Administration that I so strongly support.” Koh’s public stance in a legal memo filed on Saturday captures the horror of the Trump holdover immigration policy that the Biden administration has bizarrely embraced.

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The law is narrowly drawn and grants the government the power to prohibit—where necessary for public health—the “introduction of persons” to the country if such introduction would increase a “serious danger of the introduction” of communicable disease. The Centers for Disease Control and Prevention under Trump issued—on exceedingly shaky legal footing—a 2020 rule expansively interpreting Title 42 and purporting to permit expulsions of asylum-seekers en masse. Despite promising to wind down its claimed use of Title 42, the Biden administration has continued to deploy the Trump-era rule to remove large numbers of migrant families and single adults from the country.

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Last month, a federal court issued a preliminary injunction blocking the government from expelling family units under Title 42. Judge Emmet Sullivan handed down the order in a case filed in Washington by the ACLU and other civil rights organizations. The government, though, appealed the decision and last week the U.S. Court of Appeals for the D.C Circuit stayed Sullivan’s ruling, allowing the Biden administration to continue the mass expulsions.

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Prior to the present contretemps, Title 42 had rarely been used since it was enacted in 1944. The short history of the Trump-era Title 42 policy should make even the most ardent of immigration hawks on the Biden team squeamish. Title 42 was something of a personal obsession for notorious xenophobe Stephen Miller, the architect of the Trump administration’s harshest immigration policies. Miller and his allies frequently invoked the prejudiced trope of diseased migrants in private and in public. Miller also reportedly fulminated ad nauseam about his desire to use Title 42 to clamp down on the border, including in feverish monologues delivered to weary White House colleagues on late-night phone calls. The pandemic represented a victory of sorts for the White House’s hard-liner immigration restrictionists in the Trump era: During the coronavirus crisis, the Trump administration succeeded in effectively ending most legal immigration to the U.S.—even as it dismissed public health measures such as masking and prematurely ended health screenings at airports.

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It would demand a vivid flight of fancy to believe, then, that the Trump administration’s Title 42 policy was motivated primarily—or at all—by public health concerns. Miller reportedly leaned on the CDC to publish the rule interpreting Title 42 and allowing for the flood of migrant expulsions; the policy was dubbed a “Stephen Miller special” by Olivia Troye, a senior administration official and aide to former Vice President Mike Pence. According to reporting by the Associated Press, the top CDC doctor overseeing orders such as the Title 42 rule initially refused to issue that order because it had no legitimate public health basis. The CDC’s recalcitrance prompted Pence himself to intervene to instruct the CDC director, Dr. Robert Redfield, to follow through and produce the order.

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Since the Trump-era Title 42 policy was implemented, the government has used it to carry out more than half a million expulsions. The policy has produced a good deal of hemming and hawing from the Biden administration as to exactly how much it would cut back on expulsions—a potential tell as to the lack of real public health justification for the policy. The Biden administration ended the use of Title 42 to expel unaccompanied children but has continued to employ the policy to remove families and single adults. The administration expelled more than 16,200 families under Title 42 in August.

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The administration’s use of Title 42 to expel migrants appears illegal for several reasons. American asylum law grants the right for anyone arriving or physically present in the U.S. to apply for lawful refugee status. It is highly unlikely that Title 42 extinguishes that right. Title 42, which deals with the “introduction” of people into America, grants no express power to jettison individuals from the country once they are on American soil. The word expel appears nowhere in Title 42, and, as Sullivan has observed, the statute’s text, structure, and history belie the government’s claim that an implied expulsion power may be read into it. Because Title 42 refers to “persons” rather than noncitizens, the Biden team’s logic would lead to the absurd proposition that Title 42 empowers the government to eject American citizens from the country to promote public health.

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That should suffice to settle the matter. But other aspects of Title 42 also compel the conclusion that, legally speaking, the government’s conduct is well out of bounds. Title 42’s purpose and history—as well as the phrase “introduction of persons”—suggest that Congress intended to regulate transportation entities moving people into the country rather than individuals. And Title 42’s application to the “introduction of … diseases” is ill-fitting for a situation where the relevant disease, COVID-19, is already running rampant in the country, where the U.S. is able to test migrants for COVID-19, and where many migrants hail from countries with lower COVID-19 incidence rates than America. (Haiti reported four COVID-19 infections per 100,000 people in the past seven days according to a Reuters tracker, whereas the United States reported 221 COVID-19 infections per 100,000 people in the same period.) The policy also violates America’s obligations under international law, though such obligations have little or no binding force on domestic soil.

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The likely unlawful use of Title 42 to expel migrants also opens the Biden administration to merited charges of hypocrisy. Democrats and progressives lambasted the Trump administration for propagating immigration policies with the flimsiest of pretexts. Among those plainly pretextual policies were the infamous “Muslim bans” that shut America’s gates to citizens of a number of Muslim-majority countries on the heels of a presidential campaign that peddled Islamophobia. The Biden administration now finds itself in the position of defending an apparently pretextual policy—Title 42—whose stated public health objectives were condemned as baseless by top officials in Trump’s CDC.

The Biden administration’s real reason for deploying Title 42 is likely that the government is simply struggling to respond to a chaotic situation at the U.S.-Mexico border, and the Trump-era policy eases the burden on agencies and agents a bit. That reasoning certainly wouldn’t justify illegally abrogating refugee rights guaranteed by domestic and international law and does nothing to abate the harms to expelled migrants who face cartel violence, human rights abuses, and hardships across the border.

Sullivan’s order blocking the administration from expelling family units under Title 42 should have gone into effect last week. While that order is on hold, the government still has a choice: It can continue to buy time and defend a dubious policy in court or practice the compassionate immigration policy it occasionally preaches.

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