Everything You Need to know about Title 42

(Bloomberg) -- In March 2020, during the early days of the Covid-19 pandemic, then-President Donald Trump dusted off a decades-old public health law known as Title 42 to curb crossings at the U.S.-Mexico border. President Joe Biden continued the policy but now plans to lift it on May 23. There’s concern that an expected migrant surge could cause humanitarian issues.

1. What is Title 42?  

It’s a provision included in the 1944 Public Health Service Act to permit federal health officials to ban people and goods from entering the country in the case of a pandemic. The notion had been around in varying forms since 1893 until finally being codified.

2. What did its invocation in 2020 accomplish?

Trump’s public health order allowed for the rapid expulsion of nearly anyone trying to cross into the U.S. from Mexico or Canada, before they had the opportunity to seek asylum in the U.S. The Trump administration said the order would prevent the spread of Covid-19, specifically at border facilities, where overcrowding could have fueled transmission of the virus. The order doesn’t apply to U.S. citizens, lawful permanent residents and their spouses and children, nor does it apply to U.S. military personnel or those who arrive at a port of entry with valid travel documents. The Centers for Disease Control and Prevention already terminated Title 42 for unaccompanied minors as of March 12.

3. What was the result?

The policy produced backlash when images circulated of U.S. Border Patrol agents on horseback appearing to brandish whip-like reins at the asylum-seekers. At the time, Department of Homeland Security Secretary Alejandro Majorkas said he was “horrified” by the images. Haitian migrants had been arriving at the U.S.-Mexico border for years, with a noticeable uptick following the assassination of Haitian President Jovenel Moise in July 2021 and a major earthquake in August. Title 42 was also used to expel asylum-seekers from Mexico, Brazil and other countries.

4. How many people have been affected?

According to U.S. Customs and Border Protection data, more than 1.6 million migrants have been expelled under Title 42 since March 2020. Some of them have been expelled to their countries of origin through deportation flights, but others were simply returned to Mexico, causing some to worry about a buildup of people waiting to cross again when the policy is lifted. Officials from DHS said the administration is preparing by building new holding facilities, deploying more border agents and acquiring additional means of transportation. 

5. What are people saying? 

Critics of the policy have repeatedly said its use is a misapplication of the law and is spurred by immigration concerns, not public-health worries. Former CDC officials and other public health experts wrote a letter to the Biden administration condemning its use of Title 42 in August 2021 and relayed those same concerns again in January. The advocacy group Physicians for Human Rights urged the administration to end Title 42, calling it a “a grave misuse of public health as a pretext to end asylum.” Republican lawmakers have largely criticized Biden for supporting policies they say have worsened circumstances at the border, including the plan to end Title 42.  

The Reference Shelf

• Read Title 42.
• QuickTake explainers on asylum and Biden’s opportunity to rewrite Trump’s immigration agenda.
• Human Rights Watch makes its case for Title 42 being an issue of racial justice.

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