Why Democrats joining the panic over ending Title 42 border expulsions should be ashamed

Since the onset of the pandemic, tens of thousands of asylum-seekers have been unceremoniously expelled from the country every month under a previously forgotten World War II-era section of Title 42 of the U.S. Code. The statute allows the federal government to find “that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States.”

That is, one of the world’s most coronavirus-infested countries has been defying its obligations to refugees under federal and international law on the preposterous pretext that foreigners might give us the coronavirus.

While Joe Biden moved relatively quickly to reverse his predecessor’s use of Title 42 against unaccompanied migrant children last year, he has otherwise kept the policy in place for over a year. This month, however, under escalating pressure from the courts, progressives and, well, logic and decency itself, the Centers for Disease Control and Prevention announced that it would abandon Donald Trump’s policy entirely by the end of May. That is, the Biden administration belatedly and reluctantly did the right thing.

Try telling that to Congress. There, in the shadow of the midterm elections, a quavering chorus of Biden’s fellow Democrats are in a “complete panic” over the prospect of this reversion to the rule of law. They’re afraid voters will respond to Republicans’ predictable prophecies of the sort of immigrant invasion they want their followers to fear.

The GOP, which has made a career out of denying the seriousness of the pandemic, hereby adopted the bizarre position not only that the coronavirus is enough of an emergency to justify wholesale quasi-legal deportations but also that it is somehow being imported from abroad. More ironically, Senate Republicans demanding continued expulsions are holding hostage $10 billion in funding for COVID research, treatments, vaccines and testing. So they’re hobbling an effective domestic response to the pandemic on the false premise that some significant portion of the contagion is coming from across the Rio Grande.

Worse, more than a few Democrats are joining them. Several of the party’s senators are backing an amendment to the COVID funding bill that would prolong the expulsions, and several Democratic Senate candidates have also expressed support for the measure. That has generated speculation that Biden could relent and continue the weaponization of the public health law beyond next month.

Sen. Chris Coons, Biden’s fellow Delaware Democrat, recently said the White House should consider maintaining the Title 42 restrictions because “in the region where I’m from, we’re seeing infections rise,” citing Philadelphia’s precautionary restoration of an indoor mask mandate. Coons’ absurd argument appeared to be that all the COVID in Philly might be coming from a land border some 1,900 miles away.

Tying COVID to immigrants is like blaming them for, well, a lot of very American problems we spuriously blame them for, like crime and underemployment. The Trump administration did so over the objections of scientists and experts in and out of government, forcing the CDC to invoke Title 42 to expel all asylum seekers in March 2020, soon after the onset of the pandemic. The administration’s alacrity was made possible by the xenophobic obsessions of adviser Stephen Miller, who had already been trying to pull the same stunt for years — including in response to outbreaks of mumps and influenza in immigration detention facilities that had been overpopulated and mismanaged by the administration itself.

Other Democrats have since been on the right side — and both sides — of the policy. Soon after its implementation, then-California Sen. Kamala Harris joined several fellow Democratic senators in criticizing Trump’s misuse of Title 42, noting that “a public health crisis does not give the executive branch a free pass to ... operate outside of the law.” Last month, the vice president’s successor in the Senate, Alex Padilla, joined colleagues in urging the Biden-Harris administration, ironically, to “stop breathing new life into this inhumane Trump policy.” Padilla subsequently welcomed the “long overdue” reversal of expulsions that “put countless people in danger and wreaked havoc on our asylum system.”

Nearly 10,000 asylum-seekers expelled to Mexico — which in many cases is not their home country — have become the documented victims of kidnappings and violence since Biden took office, according to a list compiled by the group Human Rights First. Over 20,000 Haitians attempting to cross the U.S.-Mexico border have been expelled in that time, most of them under Title 42, a mass deportation that drew national attention last fall thanks to disturbing images of mounted Border Patrol agents charging refugees. The administration raised further questions about such expulsions by offering Title 42 exemptions to Ukrainians, but even refugees of the Russian invasion have struggled to cross into California and other border states.

The U.S. Court of Appeals for the District of Columbia Circuit reluctantly allowed Title 42 expulsions to continue last month while urging the administration to stop returning refugees to “places where they will be persecuted,” noting that the record is “replete with stomach-churning evidence of death, torture and rape.” On the same day, a Trump-appointed federal judge in Texas further underscored the legal and moral acrobatics at hand by finding that the administration could not continue to exempt unaccompanied children from the policy while deporting other asylum seekers. That forced the CDC to partially rescind the order and produce a convoluted explanation of why migrant children become dangerous to public health only when accompanied by their parents.

But as the appellate court noted, “from a public health perspective ... it’s far from clear that the CDC’s order serves any purpose.” Indeed, no less an authority than Dr. Anthony Fauci, the White House’s top medical adviser, has affirmed that it does not.

The Democrats joining Republicans in urging Biden to perpetuate this cruel charade are, in the shorthand of politics and journalism, referred to as “moderates.” There is nothing moderate about pandering to the public’s worst instincts at the expense of the law and the desperate.

This story was originally published April 24, 2022 at 5:00 AM with the headline "Why Democrats joining the panic over ending Title 42 border expulsions should be ashamed."