Washington, D.C. (December 27, 2022) – The Supreme Court has ruled that Title 42 public-health orders directing the expulsion of illegal entrants will remain in place while legal challenges play out. Title 42 is not an immigration measure, but in the absence of any coherent administration action on border security, it has played an outsized role in security at the U.S.-Mexico line. Public-health orders and federal court decrees are no way to run an immigration system and are not essential for border security, because there is a law on the books that is Title 42’s immigration twin, namely Section 212(f) of the Immigration and Nationality Act (INA).
Andrew Arthur, the Center’s fellow in law and policy, writes, “The immigration system is not ’broken’, except to the extent the administration has been sabotaging it through feckless and willful inaction. Congress gave Biden the tool he needs to stop the humanitarian disaster at the Southwest border. Now’s the time for him to pull it out of the ‘Title 8’ toolbox.”
The INA includes a mandate directing the secretary of DHS to “take all actions the Secretary determines necessary and appropriate to achieve and maintain operational control over the entire international land and maritime borders.” “All actions, necessary and appropriate” is a massive grant of congressional authority. As the Supreme Court explained in its landmark 2018 decision in Trump v. Hawaii: Section 212(f) of the INA “exudes deference to the President in every clause.”
DHS Secretary Alejandro Mayorkas is plainly not complying with Congress’s “operational control” mandate. Agents at the Southwest border have apprehended more than 411,000 illegal entrants in the first two months of FY 2023 alone, a period in which more than 137,000 others (colloquially known as “got-aways”) entered illegally and evaded apprehension.
Arthur writes, “Why is so much attention being paid to Title 42? Because, almost immediately after taking office, President Joe Biden began dismantling a series of Trump administration policies that had brought order and security to the Southwest border. And in their stead, he did ... nothing.”
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