What the end of Title 42 could mean for U.S. border policy

A decades-old debate around how the U.S. should treat migrants who enter the country without legal permission, including those seeking asylum, has been recently reignited by disagreements over whether the government should end the so-called Title 42 pandemic-era border restrictions.

Since March 2020, when the Trump administration cited the emerging coronavirus pandemic to invoke Title 42, the public health law has given U.S. border authorities the power to swiftly expel some migrants from the country without allowing them to make an asylum claim.

The Supreme Court in December prevented the Biden administration from ending Title 42 while the justices consider a request by a group of Republican-led states that want to continue the expulsions, which were declared unlawful by a lower court.

Because U.S. border officials have relied on Title 42 for nearly three years, its end will pose major humanitarian and operational challenges for the government, and likely fuel a spike in migrant arrivals, at least in the short term.

But increasing numbers of migrants have not been subject to Title 42 anyhow due to diplomatic, logistical and policy reasons. Migrant arrivals have also already soared to historically high levels. And the end of Title 42 will not mean that migrants will not face deportation for entering the U.S. unlawfully.

Here are the facts about the legal battle over Title 42, how the rule is currently being enforced and what its potential termination could mean for U.S. border policy.

Why is the Supreme Court debating Title 42's future?

When the Centers for Disease and Control Prevention invoked Title 42 in early 2020, the Trump administration said the policy would be a temporary measure to control the spread of the coronavirus.

While the Biden administration continued the expulsions for over a year and initially defended them as necessary to safeguard public health, it decided to discontinue Title 42 in the spring of 2022. The CDC determined in April that the rule was no longer needed to curb COVID outbreaks, citing improving pandemic conditions.

However, at the request of a coalition of Republican-led states, a federal judge in Louisiana barred officials from ending Title 42, saying the Biden administration had not taken adequate steps required to terminate the policy.

Then, on Nov. 15, another federal judge declared Title 42 unlawful, saying the CDC had not properly explained the policy's public health rationale or considered its impact on asylum-seekers. At the request of the Biden administration, the judge gave border officials 5 weeks, until Dec. 21, to end Title 42.

Nineteen Republican-led states asked several courts to delay Title 42's rescission indefinitely, warning that chaos would ensue otherwise. After their request was denied by lower courts, the states asked the Supreme Court to intervene. 

On Dec. 27, the Supreme Court said it would suspend the lower court order that found Title 42 to be illegal until it decided whether the Republican-led states should be allowed to intervene in the case, likely postponing the policy's termination for months.

Does the policy have a public health basis?

The law the government has cited to expel migrants, found in Title 42 of the U.S. code, gives officials "the power to prohibit, in whole or in part, the introduction of persons and property" to stop the spread of a contagious disease.

For over two years, the CDC argued that Title 42 was needed to prevent coronavirus outbreaks inside border facilities and protect public health resources. In April, however, the CDC said it could no longer authorize Title 42 because of improving pandemic conditions, including increased vaccination rates. 

But the stated rationale behind Title 42 has been contested by public health experts, including CDC officials, some of whom have said the agency faced political pressure to enact the measure, despite insufficient data to justify it. Title 42's public health basis is also rarely invoked by those who support the measure.

The 19 Republican-led states that convinced the Supreme Court to delay Title 42's end have mainly relied on the argument that lifting it will fuel an even greater increase in migrant arrivals. But the law underpinning Title 42 does not authorize expulsions on the basis of reducing or deterring illegal migration.

How is Title 42 currently being enforced?

For nearly three years, Title 42 has been the primary border-control tool the U.S. government has relied on during an unprecedented migration crisis. 

The government has argued Title 42 supersedes U.S. asylum law, which requires officials to screen migrants to ensure they are not deported to places where they face a credible threat of persecution because of their race, nationality, religion, politics or membership in a social group. But not all migrants face expulsion under Title 42.

In fiscal year 2022, a 12-month span that ended on Sept. 30, Border Patrol agents along the southern border stopped migrants 2.2 million times, a record high. Just over 1 million of those encounters resulted in migrants being expelled to Mexico or their home country under Title 42, government statistics show.

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