The Biden administration came under fire from Republican lawmakers and many Democrats after the Centers for Disease Control and Prevention, which authorizes the order, announced it would end this month, citing improved public health conditions and the availability of vaccines and treatments.
Critics say the government is not prepared to handle the surge of migrants that the order’s end might bring. The Department of Homeland Security has said it is preparing for as many as 18,000 migrants to arrive on a daily basis when the order ends.
More than 20 states signed on to a legal challenge to allow the migrant expulsions to continue in a Louisiana court, saying the CDC had not followed the correct procedure ending the order and failed to consider the impact of their decision on states. A Trump-appointed judge on Friday ruled in their favor, granting a preliminary injunction to prevent the order from ending.
The fact that so many Americans also support using a public health measure to stop immigration unrelated to the pandemic is ultimately a reflection of lawmakers’ failure to make progress on immigration reform, said Robert Blendon, a professor of health policy and political analysis, emeritus, at the Harvard T.H. Chan School of Public Health.
“They’re taking something used to control epidemics and are fighting for it because they know there’s no way to reach an agreement over immigration,” he says. “Congress can’t agree what to do, and they’re using it as a fig leaf a public health emergency measure.”
The poll’s findings suggest that individuals’ support for keeping the order in place is informed both by their attitude toward immigration and their political affiliation.
Among those who said they think there should be less immigration into the U.S., opposition to ending the order rose to 77 percent, while 72 percent of people who support more immigration think the order should end. Eighty-one percent of Republicans oppose ending Title 42, compared to just 36 percent of Democrats.
Since Title 42 was first enacted in March 2020, there have been more than 1.7 million expulsions under the policy, rendering the public health law a de facto immigration control mechanism during the pandemic in both the Trump and Biden administrations.
Immigration advocates say the use of the order to expel migrants is illegal, denying people who are fleeing persecution or torture the right to seek asylum in the U.S., as is guaranteed under international humanitarian law. More than 10,200 people who have been expelled to Mexico under the law have been kidnapped, raped, tortured or violently attacked, according to Human Rights First.
On March 4, a three-judge panel in the D.C. Circuit Court unanimously ruled that the CDC could use Title 42 to expel migrant families — but not back to danger without giving them the chance to apply for protection. Though the Louisiana court’s injunction now prevents Title 42 from ending, Lee Gelernt, lead counsel in D.C. case, said the D.C. Circuit Court’s order will prevent it from being used to expel migrant families to persecution or to torture.
Public health experts have long argued the measure does little to control the spread of Covid-19 in the U.S. — and in fact may increase the risk of transmission as the policy has encouraged migrants to try to enter the country multiple times, increasing their movement.
The order never stopped migrants from trying to enter the U.S. In 2021, there were a record number of border encounters, according to the Migration Policy Institute, with many migrants permitted entry due in part to the uneven application of the policy. More single adults have been expelled under Title 42 than families, for instance, and the administration has not been expelling unaccompanied children since November 2020.
Public health experts say the politicization of this policy threatens the efficacy of public health mandates in future crises.
Health officials “are really worried that when they use these types of authorities, it should not be seen as having any political implications — it’s just stopping the flow of a disease,” said Blendon of Harvard.
The next time they need to use a control measure at the U.S. border to stop an outbreak, “people are gonna say, ‘No, you have a real political reason here. You’re anti Middle East, South America, Africa. It has nothing to do with disease, it has to do with your politics.’”