Biden White House stands behind Title 42 decision amid party revolt

Facing a growing rebellion from within the Democratic Party, the White House is standing behind its decision to end on May 23 a Trump-era deportation policy for migrants encountered at the southern border.

That decision to end the use of the public health order known as Title 42 has placed President Joe Biden in a political bind. The president is attempting to balance his long-standing promise to revoke the policy — which, under the banner of fighting the Covid pandemic, justified the immediate expulsion of migrants without due process — right as Republicans weaponize immigration before the midterms and as a growing number of Democratic senators want restrictions to remain in place for fear that the administration is not prepared for a summer surge of migrants to the border.

“It's not like we've been hiding the ball on this,” a White House official said, speaking freely about the state of play on condition of anonymity. “This is not a policy to applaud or defend or anything. It simply is a public health directive on whether there is a public health risk associated with processing migrants or not. The [Centers for Disease Control and Prevention] made a determination that there wasn't and that we're OK to move forward with lifting it on May 23.”

In interviews with POLITICO, immigrant advocates, lawmakers and former administration officials urged the White House to stay the course and to better communicate its plan to lawmakers and necessary stakeholders along the border. Several urged Homeland Security Secretary Alejandro Mayorkas to go to the border ahead of the May 23 policy change to demonstrate the coordinated response being prepared by government agencies.

The White House is “definitely not going to reverse their decision on Title 42,” said Kerri Talbot, deputy director of the advocacy group Immigration Hub. “We would really urge them, instead, to more clearly roll out their border plan. There's really a communications issue here where they have detailed plans, but they just haven't really concretely laid them out for Congress.”

There had been internal divisions within the White House over whether the Title 42 authority should have been ended. And questions about whether the administration would reverse itself emerged in recent days amid reports from Axios that it was considering a delay of the May 23 deadline and that officials were worried about being overwhelmed by a spike of migrants at the border. The White House has suggested to lawmakers that they pass legislation to change the CDC’s authority on the public health order themselves if they were inclined to. But a court injunction could end up, at least for a time, solving the Catch-22 for Biden. Earlier this month, a number of Republican-led states sued the administration to prevent the termination of Title 42, and a hearing is expected before the end of May.

“The little secret here is they don't think they're actually going to have to end Title 42,” said an immigration advocate familiar with the White House’s thinking. “They're expecting to lose a lawsuit that's going to force them to keep it in place.”

Prior to the CDC’s announcement that the use of Title 42 was no longer warranted, Republicans sought to label Biden as a proponent of open borders. Vulnerable Senate Democrats were quick to distance themselves from the White House, too, with at least nine publicly calling for an extension of the Title 42 authority, which has been used since early 2020. Democrats have accused the White House of moving forward without a plan to handle expected seasonal increases of people at the border, and Senate Democratic aides say the administration hasn’t provided concrete details.

The White House official pushed back on these accusations, referring to the DHS fact sheet that was released last month, calling it “comprehensive.” The official reiterated that it was up to the CDC to make that determination down the road but that at this point, the CDC was moving forward with lifting TItle 42.

“It all depends on the public health risk, that's up to them to decide. What is the public health risk associated with X, Y and Z?,” the official told POLITICO. “That authority lives with the CDC. I recognize that there are people in our party that want to extend it. That's great. If they think that the CDC shouldn't have that authority, there's a legislative mechanism to do that.”

Still, veterans of the administration concede that the pushback has overshadowed the White House’s efforts, exacerbating questions about how the matter might play in the midterms.

"Republicans are winning this messaging war, and they're making it about open borders,” said a former Biden administration official, who spoke on the condition of anonymity to speak more freely about the problems the current team is having. “If Democrats would just remind the American public that this is the brainchild of [Trump senior aide and hardline immigration adviser] Stephen Miller, who also separated 5,000 children from their parents, and that the president campaigned on overturning all these cruel policies of the Trump administration, I think the American public would support it.”

“There is no alternative that's being put out there,” the former official added.

The former administration official said the White House has long been planning for future increases in migration. After the surge of migrants to the U.S.-Mexico border near Del Rio, Texas, last fall, the administration developed a better early warning system for migrant movement. It also organized an all-of-government response in which different agencies will provide planes and buses when the number of migrants increases at the border. “It doesn't mean it's going to be perfect, but there is a plan,” the former official said.

Rep. Joaquin Castro (D-Texas) said he was “disappointed” by his fellow Democrats who’ve called for keeping Title 42 in place but urged the administration to provide more details on how they intend to “expand capacity and process asylum seekers in the United States.” He added that “there's plenty of time” for the White House to explain its plan in the next month.

“I hope that the administration continues on course to lift this Trump-era policy that was put in place by a xenophobe because, ultimately, history will not look kindly upon those who argued for its continuation,” Castro said Thursday.

Rep. Veronica Escobar (D-Texas), who represents the El Paso border community, said she understands why some of her fellow Democrats are worried about an increase in migrants encountered at the border. But Escobar maintained that Title 42 has not been an effective deterrent.

“Everyone is looking for a quick and easy solution, and it’s that kind of thinking that has, in my view, created a situation where we don't address the root causes,” Escobar said. “We've had Title 42 for over two years in place. Has that deterred migration? Has any of that stopped asylum seekers? Has any of it curbed the numbers? No.”

The absence of a more enthusiastic White House communications strategy on Title 42 has been felt most acutely on the ground along the border, where local leaders have grown accustomed to Republicans using the issue as an election year battering ram.

“States are not in the immigration business. The federal government is. The federal government does need to work with us,” said Texas state Sen. Roland Gutierrez, a Democrat and an immigration attorney by trade, who this week visited a detention facility where the state is locking up migrants. “At least get down here and be the immigration cop and answer the questions that the community has in a more tangible, efficient way to where people are sure that they're doing their jobs.”

Gutierrez joined with others in advocating for Mayorkas, specifically, to visit the region, contending it was Republican leaders in Texas, including the governor, who are treating immigrants inhumanely. Texas Gov. Greg Abbott recently bused migrants to Washington, D.C., in a move derided as inhumane.

“I have no doubt that the federal government can handle the 60,000 or 70,000 migrants that are waiting on the other side and handle them in an expeditious manner. But certainly we need to hear that from the administration rather than not hear anything,” Gutierrez said.

Will Dempster of the National Immigration Law Center, which advocates to advance the rights of low-income immigrants, said the frustration for many activists is that the issues themselves are not political losers — despite battleground Democrats running for cover. In a recently commissioned poll by the organization, Dempster said a majority of likely 2022 voters supported ending the practice of using the pandemic as a reason to deny asylum seekers entrance to the U.S. Some 1.7 million migrants have been expelled under Title 42 since it was first implemented, including asylum seekers.

Colin Strother, a veteran Democratic operative in Texas, agreed the administration’s plan needed to be better communicated by officials in Washington. For now, he argued, Democrats look defensive on a moral issue they should be leaning into.

“Everyone would be more comfortable with the administration saying, ‘Here's our priority, here's our goal, here's our value. We understand some people aren't going to like it, but by God, this is what we think is best. And that's what we're going to do,’” he said. “Instead, they constantly seem to be trying to have it both ways; trying to make everybody happy.”

“This administration is just so risk averse that in moments like this, it's paralysis by analysis.”