Biden faces pressure from vulnerable Democrats to delay end to Title 42

Some congressional Democrats in competitive races have come out against the end of Title 42, a public health order that allows border agents to expel asylum seekers.

  • Immigration advocates and progressive Democrats have been urging the administration to end Title 42.
  • More moderate Democrats have asked for the policy to remain in place.
  • This leaves President Joe Biden in a tough spot, as a health policy becomes political.

WASHINGTON – More than 2,000 miles from her home state, Sen. Maggie Hassan stood in front of a border fence lined with barbed wire in Nogales, Arizona. 

Detailing her multiday trip, the New Hampshire Democrat had a clear message about staffing and technology at the border: The U.S. needs more, not less, of it.

"It's also really clear that the administration needs to address certain gaps in physical barriers along the border that ... are posing a real challenge for our Border Patrol agents," Hassan continued in the video posted to her Twitter account.

With her comments, Hassan joined a growing list of congressional Democrats in competitive races who have come out against ending Title 42, a public health order that allows U.S. border agents to expel asylum seekers to Mexico in an effort to prevent the spread of coronavirus. The group of largely moderate Democrats is calling on President Joe Biden to keep the policy in place – a stark contrast to the outrage many Democrats had when former President Donald Trump first invoked the policy.

Just over six months out from the midterm elections, Biden is being forced to strike a tricky balance on immigration and Title 42: trying to appease voters and advocates who helped elect him while ensuring he can get vulnerable Democrats reelected to keep his party's majorities in Congress.

End of Title 42:Ahead of Title 42 ending, Border Patrol prepares for the return of asylum

On one end of the spectrum, immigration advocates and progressive Democrats have been urging the administration to end Title 42 for months, saying it goes against international and U.S. law by prohibiting individuals from seeking asylum and hurting Democrats with core constituents. On the other end, the more centrist wing of the party is asking for the policy to remain in place, saying that they don't believe the Biden administration has a plan in place and knowing Republicans likely will use immigration as a point of attack in the midterms.

“It's a pretty no-win proposition,” said Doris Meissner, former commissioner of the U.S. Immigration and Naturalization Service and a senior fellow at Migration Policy Institute. “This is now really a political judgment, much more than it is either an enforcement or a public health judgment.”

Further complicating the issue, a federal judge on Monday said he will issue a motion to temporarily block the administration from ending the controversial policy.

"The president's view is that we have a broken immigration system that's been long overdue to be fixed," White House press secretary Jen Psaki said Monday. "This is not an immigration policy. Title 42 is a health authority that's determined by the CDC, and we need to have a conversation about immigration reform. That's vital."

Democrats want a 'plan' for Title 42, but they don't all agree

The CDC announced on April 1 that Title 42, which has been used to expel roughly 1.5 million people from the U.S. over two years, would end May 23.

Since the announcement, more than a dozen Democratic lawmakers in the House and Senate have come out against the plan.

“Title 42 was put in place because of the public health emergency,” Sen. Mark Kelly, D-Ariz., told a local news station while visiting the border. “It should not be around forever, but right now this administration does not have a plan."

Kelly, who is up for reelection this year, won his seat in the Senate by roughly 2 percentage points in 2020.

Psaki countered Monday that the administration has a "multipart plan ... they've been implementing for months now to prepare for Title 42" to end.

With concerns growing over a lack of a plan to prepare for the end of Title 42, DHS Secretary Alejandro Mayorkas on Tuesday laid out in a memo a six-pillar plan of action for the end of the policy.

The plan includes surging resources, such as personnel, transportation, medical support, and facilities; increasing Customs and Border Patrol processing efficiency; administering consequences for unlawful entry; bolstering resources to nongovernmental aid organizations; targeting transnational criminal organizations, such as smuggling organizations; and working with Department of State and other nations in the region to deter irregular migration.

More than 600 law enforcement personnel from CBP will be sent to the southwest border, senior administration officials said in a call with reporters. As part of the plan to administer consequences for unlawful entry, a senior administration official said the administration is increasing the use of expedited removal, which means individuals are denied entry or physically removed from the United States, without going through the normal removal proceedings, such as an immigration hearing.

The pressure to delay ending Title 42 also goes beyond Democrats who are in competitive reelection races.

Sen. Gary Peters, D-Mich., last week called on Biden to delay lifting the policy.

“Unless we have a well-thought-out plan, I think it is something that should be revisited and perhaps delayed,” Peters told reporters last week, according to The Hill. “I’m going to defer judgment on that until I give the administration the opportunity to fully articulate what that plan is. But I share … concerns of some of my colleagues.”

Peters' term doesn’t end until 2027, but Michigan is a competitive battleground state. Biden won the state in 2020, flipping it after Trump won it in 2016.

Migrants rest in a dormitory of the Good Samaritan shelter in Juarez, Mexico, Tuesday, March 29, 2022. The vast majority of people staying at the shelter are women and their children from Mexico and Central America who have been expelled under Title 42 authority or were still waiting to try for asylum, according to Pastor Juan Fierro, the shelter’s director. (AP Photo/Christian Chavez) ORG XMIT: XLAT401

And Democrats on Capitol Hill aren’t the only ones urging Biden to delay lifting the policy.

More:Federal judge will temporarily block Biden administration from lifting Title 42

Officials at the White House had been discussing whether they could delay lifting the policy, looking for ways to buy time to avoid an influx of migrants that are expected to come to the border once the order is lifted, Axios reported last week. Homeland Security Secretary Alejandro Mayorkas also expressed concerns to lawmakers about the policy ending in late-May, according to a separate report from Axios.

Despite that, Psaki said Monday the administration is “continuing to prepare for our May 23 implementation."

Tyler Moran, who stepped down as Biden's senior adviser for migration in January, said Democrats need to articulate where they stand on immigration issues.

"Joe Biden ran on a fair and orderly immigration system in 2020 and won,” Moran said. “Democrats should never try to ‘out enforce’ Republicans. They have tried that and they don’t win Republican votes and just alienate base voters."

More:Biden administration jails too many asylum seekers and keeps them locked up too long, report finds

Instead, Moran said Democrats should say they stand for "a well-managed border and the right to seek asylum.”

And still other Democrats are "thrilled" Biden is ending the policy.

“Title 42 was a cruel and discriminatory policy that circumvented U.S. law, preventing people from accessing protections established by Congress," Congressional Progressive Caucus Chair Rep. Pramila Jayapal, D-Wash., in a statement on April 1. "I’m thrilled to see the Biden administration do the right and moral thing by ending this extremely harmful, xenophobic, and shortsighted policy that disproportionately impacted Black and Brown migrants."

Immigration to play a role in midterms

Republicans have repeatedly slammed Biden and Democrats on their immigration policies, claiming that Biden’s rescinding of Trump policies have led to an influx of migrants at the border. 

Now as Title 42 is set to end, Republicans hope to use that as a way to motivate their base to vote against Democrats. 

"Everybody in this crisis. Everybody's world is turned upside down. People's lives have been stolen. This is about bringing everyone together. It starts with keeping Title 42," Rep. Tony Gonzales, R-Texas, said Monday during a news conference after a visit to the U.S.-Mexico border in Eagle Pass, Texas. "Democrats are now starting to be on board as well because this does not stop at a party. 

Chris Zepeda-Millán, associate professor of Public Policy and Chicana/o Studies at University of California, Los Angeles, noted that most Americans,  including Republicans, are not motivated to head to the polls on immigration alone.  

Zepeda-Millán, who wrote "Walls, Cages and Family Separation: Race and Immigration Policy in the Trump Era," said that while many Americans don’t agree with immigration policies that separate children or detain families, those policies don’t drive voters to the polls, especially in a midterm year when voter participation is low. 

More:Congress returns to big fights over Ukraine aid, Title 42, COVID-19 relief

“I don't think it's going to be the defining factor,” he said of immigration. But he added that it could go on to affect some voters' decision if the Biden administration doesn't explain that it can repeal the policy to follow international and U.S. law, but also make sure the border stays orderly.

Moran warned that former President Donald Trump and conservatives tried to run on immigration enforcement during the 2018 midterms.

A wave of Democrats were elected then, but it was part of a trend where the incumbent president typically loses many seats in his party. Democrats gained 40 House seats, flipping that chamber to be a Democratic majority. 

More:Supreme Court hears challenge about 'remain in Mexico' policy as Biden faces immigration backlash

"I know that Republicans are running on immigration. But look at 2018 when President Trump tried to make that midterm about the ‘caravan,’” Moran said, referencing a group of Central American migrants who were making their way to the United States’ southern border to seek asylum. “There was Kris Kobach, Lou Barletta and a number of House members that ran on that platform, and they all lost."

Because of redistricting and historical trends, Democrats are facing an uphill battle to keep their seats in the upcoming election. Moran said that Democrats should hone their messaging to fight back against criticisms from Republicans.

"Immigration is portrayed as a binary issue, open border, closed border," she said. "And if policymakers don't give the public other choices, people don't know where to go. Right now, the public isn't being presented with another option."

“Not everybody will apply for asylum and not everyone will qualify for asylum," she added. "So it doesn't mean that borders are 'open,' It just means that people will now have the right to seek protection.”

Reach Rebecca Morin at Twitter @RebeccaMorin_