Title 42 Was Shoddy Public Health and Immigration Policy: Its Expiration Is Well Overdue

Whether it was Machiavelli or Winston Churchill, the adage of "never let a crisis go to waste" shows why some sayings are timeless. It certainly rang true during the COVID pandemic. Various governments took on emergency powers in the name of public health, including harmful lockdowns, ineffective mask mandates, pointless travel bans, and eviction bans. As of the end of last Thursday, another COVID emergency power ended: Title 42. 

In March 2020, the CDC under President Trump used the pretense of the pandemic to issue a public health order known as Title 42. Under Title 42, the Border Patrol could expel unauthorized border crossers and asylum seekers. They are immediately sent out of the country without the right to make a case before a U.S. judge to stay in the country. Over its three years of being used, Title 42 has resulted in about 2.8 million expulsions. The purported idea of using Title 42 was to stop COVID in its tracks, or at the very least, slow it down. What do we have to show for Title 42?

The primary rationale was public health, so let us see if it helped with public health. From the onset, public health experts expressed opposition to such a policy because "there is no public health rationale for denying admission to individuals based on legal status." It turns out that Title 42 did not do anything to help with the spread of transmission of COVID. 

For one, the Alpha, Delta, and Omicron variants entered the United States and quickly spread throughout the country in spite of Title 42 being enacted. Second, the four notable coronavirus variants were circulating in the United States before Mexico or Central America, according to the open-source repository of viral genomes GISAID. If anything, Americans brought the variants to Mexico and Central America, not the other way around. Third, as research from the Left-leaning Center for American Progress (CAP) indicates, there is no relationship between Title 42 expulsions and COVID cases (see below). 

As I explained in December 2021, travel bans on people traveling theoretically work best when there are very little to no cases in the domestic country. Travel bans rarely works in practice. Even when they have some effect, its effect is to delay the spread, not eliminate it. Title 42 operates similar to a travel ban, so it is no surprise that Title 42 did not help with lowering COVID transmission.  

I can get into a debate of whether the public health emergency aspect of COVID ended a while back or whether we should have simply learned to live with COVID-related risk much like we have in other areas in life. What is clear is that there was never a public health rationale for Title 42 regardless. Unlike the other COVID restrictions, Trump's real reason for implementing Title 42 was not about public health. Public health was a guise for the fact that he has an axe to grind with immigration. It does not matter whether it is "legal immigration" or undocumented workers, the immigration of low-skilled or high-skilled labor. As we see with Trump's immigration policy, he did whatever he could to lower immigration to this country. By not even allowing asylum seekers a trial to claim asylum, Trump all but eliminated the right of asylum.  

Title 42 was not meant to be a form of immigration policy, but it de facto became immigration policy. This is why I would like to view Title 42 from the lens of immigration policy. In the context of Trump's anti-immigration policy, he wanted to lower the number of people moving to the United States. How well did Title 42 help him succeed? 

A good place to start is looking at border crossings since that is what Title 42 was supposed to prevent. The Washington Office on Latin America (WOLA) took a look at Customs and Border Protection (CBP) data on border apprehensions and encounters (see CBP data here and here). What we see below is that border crossings are at an all-time high.  

I'm not saying Title 42 caused this mass immigration. Even before the pandemic, there was gang violence in Central America, a refugee crisis in Venezuela, and Haiti has been a fragile state for decades. In part, the health emergency strained countries that were already experiencing instability. It is also true that, as a 2021 report from the International Institute for Democracy and Electoral Assistance points out, "the world is becoming more authoritarian as non-democratic regimes become even more brazen in their repression." Then there is in a war in Ukraine, increasing energy prices, and less stable global markets to throw into the mix. With calamity after calamity, is it any wonder that people are fleeing oppression to seek a better life for themselves and their family?   

Given what these asylum seekers are facing in their home country, the fact that Title 42 did not deter people from crossing the border is not shocking. What is ironic is that Title 42 very well made crossings more likely. Recidivism is the likely someone is to recommit a crime. The Cato Institute looked at the percentage of repeat crossings from CBP, and the recidivism rate about doubled since Title 42 took hold. There was no legal consequence or punishment for crossing the border under Title 42 because they were simply expelled. Thinking of it as a type of "catch and release" policy. Knowing that there were no real repercussions and what they faced back home is worse, "if you don't first succeed, try, try, try again" became a mantra for many.   

There were some that were arrested multiple times, as we see above. However, if you try enough times, odds are that you can get through at some point. That we can see with the data on those who successfully entered the country illegally, also known as "gotaways." As the Cato Institute shows below, the number of "gotaways" increased dramatically during Title 42. So much for Title 42 keeping border crossings down!

What about the human rights cost of Title 42? Title 42 turned away from the United States without even a trial to determine their asylum status. Those who did not try to cross the border again were either sent to border towns or back to the oppressive country they were fleeing in the first place. According to a December 2022 report from the nonprofit Human Rights First, there were 13,840 reports of murder, torture, kidnapping, rape, and other violent attacks on migrants and other asylum seekers that were turned away as a result of Title 42.   

Title 42 is yet another example of why we should be skeptical of expanding government powers during a public health emergency. The government exaggerated the severity of COVID to keep us scared for as long as possible. While doing so, the government expanded its power in new ways. In the case of Title 42, Trump seized the moment to push his anti-immigration agenda. People went along with it because the fear of COVID was so strong that the government's general response to COVID put a near-exclusive emphasis on COVID while ignoring non-COVID health costs, as well as the economic, social, education, and mental health costs of COVID regulations. 

Instead of working on comprehensive immigration reform, the Biden administration decided to hold onto a policy that did nothing to stop the transmission of COVID either because he wanted to look tough on fighting COVID or border security (or possibly both). Title 42 did not stop people from coming, but rather created a backlog of those seeking asylum. In doing so, it worsened human rights violations of those fleeing oppression. I am glad to see Title 42 exit the scene of immigration policy. Now it is time to move on to comprehensive immigration policy that can both address the backlog of asylum seekers on the U.S. border while making sure we have a viable pathway to immigration in this country.