For the last three years, a previously obscure emergency public health order allowed politicians to temporarily sidestep one of the most complicated issues in American politics — migration at the United States' southern border. Former President Donald Trump invoked Title 42 in the spring of 2020 as COVID-19 cases were spreading. And that meant that border agents could quickly process and expel migrants. But as COVID cases dipped, the rule remained in place, allowing officials to control the flow of migrants.
At 11:59 pm last Thursday, the policy expired.
Now, the old order is back, and officials must either detain migrants who cross into the U.S. or release them. There was no immediate chaotic rush of migrants at the border, as some had anticipated. But a lot of uncertainty remains about what will transpire in the months to come — both procedurally and politically.
And there is a lot at stake for President Biden himself. He has to figure out how to navigate asylum law and avoid a humanitarian crisis, all while gearing up for a reelection bid in which he's facing political pressure from the left flank of his own party and Republican critics on the other side.
What's the scene at the border?
NPR's Joel Rose has been reporting from both sides of the U.S.-Mexico border. In the immediate days after Title 42 was lifted, he described a situation of relative calm.
"It's been orderly here in El Paso and really up and down the border. But we do know that there are likely still tens of thousands of migrants in northern Mexico. There's this sort of pent-up demand. They haven't had a chance to seek asylum over the past few years. And they still may very well be waiting to come and cross the border to try and do that."
How is the Biden administration prepared to deal with a possible influx of migrants?
The administration has rolled out a number of new policies to incentivize migrants to use legal pathways and avoid using human smugglers to enter the country illegally. It has expanded a parole program for migrants from Venezuela, Cuba, Nicaragua and Haiti, that allows up to 30,000 people from those countries entry to the U.S. each month if they apply for asylum from outside the U.S.
The Biden team has also put in place a new limit on asylum seekers: migrants who cross the border illegally will face a 5-year ban on applying for asylum in the future.
But these new policies are being litigated in the courts. A group of states led by Texas is challenging the parole program.
And the ACLU, in addition to other immigration-rights groups, has challenged the new asylum rules.
"There's a pretty strong chance that they will find receptive judges to block some of these programs, if not both of them," explained Rose. "What does the administration do if those tools are taken away?"
What are the political implications for Biden
Biden came into office promising to unravel Trump's immigration policies. But it's proven difficult for him to do that. He quickly stopped construction of Trump's border wall and introduced an immigration bill (but it's gone nowhere in Congress).
Many progressives were unsatisfied. They wanted Biden to do more.
But NPR White House correspondent Franco Ordonez says Biden was tied in by political constraints.
"He [has] had to show he could also maintain and manage control of the border ... Let's not forget there is a presidential election coming up ... he just announced he's running for reelection. And this is one of the biggest issues that Republicans want to use to undercut President Biden's competency. This is an issue they feel they have ammunition on. And that's because polls show it as a vulnerability for President Biden."
Biden has been facing criticism from the right for allowing a porous border on his watch, and from the left for maintaining Trump-like policies.
"I think the White House would tell you he's trying to reach those Middle America voters ... and, politically, that's the area he kind of needs to focus on and that's because his vulnerabilities politically are more on the right than the left because the left is ... more concerned about the right and what could happen if Trump were to come back."
What's next for immigration?
House Republicans passed a sweeping immigration bill called the "Secure the Border Act" this past week. Every Democrat opposed the measure, and it's likely to die in the Senate. The White House has already threatened to veto the bill. But it allows Republicans to show they have an alternative vision for how to deal with the situation.
Republican strategist Leslie Sanchez told NPR that the situation at the border could create an opening for the GOP to win back some moderate voters. "Biden's inaction on closing the porous border has created an opportunity for Republicans in swing districts to go back to frustrated voters and say, we have a solution," she said.
Polls show voters are currently more concerned with other issues, namely the economy. But Democratic pollster Celinda Lake says if the situation at the border gets worse, that could elevate the issue in the minds of voters. "I think the challenge is when people aren't paying very much attention, they will be unduly influenced by dramatic photos and dramatic statements," Lake said.
For the moment, the White House insists its new rules should help manage the border in a post-Title 42 era. But Biden himself has acknowledged the months ahead hold a lot of uncertainty.
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