From October 1st of 2021 to September 30th of 2022, more than 2.3 million migrants have illegally crossed into the United States. American towns that are situated relatively close to the US border, such as El Paso, have recorded observing over 80,000 migrants. The recent US Supreme Court decision to maintain Title 42 will not only have implications for the current US border crisis, but for immigration policy and migrant families. 

At the start of the COVID-19 pandemic, the fact that the CDC sought to limit border crossings to reduce the spread of the disease resulted in the implementation of Title 42. In practice, Title 42 authorizes the United States Customs and Border Protection to immediately remove persons from Mexico or Canada, regardless if they are petitioning asylum, to prevent the spread of communicable diseases.  To that effect, the implementation of Title 42 was premised on mitigating the impacts of COVID-19 on the US population. However, when Joe Biden entered into office, there was a split in the Democratic party concerning Title 42. Proponents argued that the United States was ill equipped to deal with a higher demand of asylum seekers. On the other hand, critics advocated for the removal of Trump’s “anti-immigration” policy. President Biden decided to uphold Title 42 for the time being, while the pandemic was still raging. 

However, in 2021, the CDC announced that Title 42 was no longer relevant to keep in place due to the decrease in Covid-19 cases. Yet various republican states filed a lawsuit in the DC Circuit US Court of Appeals on the grounds that the repeal of Title 42 would result in a surge of migrants towards their states that would disproportionately deplete their resources. A Trump appointed Louisiana judge ruled that Title 42 must stay in place, as it was found that President Biden failed to follow the proper administrative procedures, which postulated that a time notice was required to allow states to prepare for the end of restrictions. However, this ruling was blocked by a separate lawsuit in Washington on the grounds that banning migrants to reduce infection rates was internally contradictory, as the rest of the country was opening up. Thus, this lawsuit ordered the President to lift Title 42 by December 21st of 2022. Republican states refused to accept this verdict and subsequently brought this case to the US Supreme Court. The court ruled in favour of the Republican states on the grounds that removing Title 42 would impose great stress on the American law enforcement, healthcare, and education system. Title 42 was ruled to be kept in place indefinitely, and the case will undergo further hearings this February.  

In response to upholding of Title 42, the Biden-Harris administration has announced further measures to address unlawful entry into the United States. The objective of these measures is threefold. First, there will be an increase in the use of expedited removal. In other words, individuals who enter the United States unlawfully that cannot be expelled pursuant to Title 42, will be deported to their country of origin. Secondly, in addition to imposing new consequences for illegal entry, President Biden is focused on creating new legal pathways for safe and manageable entry into the country. For example, the Biden-Harris administration announced that they plan to triple refugee resettlement from nations in the Western hemisphere. Thirdly, President Biden has announced a plan to support communities receiving migrants, which is focused on the distribution of a wide range of resources. For example, Biden plans to mobilize a record amount of resources for the orderly processing of migrants. The idea here is that when Title 42 is rescinded, there will be a plan to ensure the border is well-managed by reviewing asylum cases at the US border more rapidly. Therefore, it is clear that although President Biden is addressing the most acute issues in the US immigration system, it certainly does not solve all problems. In the very early stages of Biden’s presidency, comprehensive immigration reforms and billions in funding for ameliorating border security management were blocked by the Republicans in Congress. The Republicans’ decision to block Biden’s original immigration proposal is puzzling, given their strong rhetoric for increasing border security throughout the last two years. Thus, it can be understood that Biden’s response to the preliminary injunction of Title 42 responds to the most acute issues in the present day US immigration system, and a more comprehensive plan exists, but has struggled to pass through Congress.  

The recent verdict by the US Supreme Court to uphold Title 42 not only warranted a response from the Biden administration, but has implications for migrants crossing the border. First, the preliminary injunction of Title 42 results in migrants who are fleeing from persecution or other threats in their home country to face deportation to their country of origin placing them in great danger. If Title 42 is rescinded, Title 8 allows for persons to legally petition for asylum in front of an immigration judge, but this is not the case with Title 42 coupled with Biden’s expedited removal measures. However, despite this significant negative implication for migrants, recall that President Biden has put the United States on pace to triple refugee settlement from the Western Hemisphere by welcoming more refugees from countries in Latin America. It is then evident that although Title 42 being in place puts migrants in great danger by facing a high risk of deportation, President Biden hopes to both improve legal entry into the country via expedited removal and welcome more refugees. Although these two policies may seem diametrically opposing to one another, perhaps it can be interpreted that Biden wants to increase legal migration and mitigate the border crisis while simultaneously decreasing unlawful entry. 

The verdict of the US Supreme Court to grant preliminary injunction to Title 42 has been met with a strong response from the Biden administration which hopes to both address present day border issues, and also be prepared when the time comes to deal with a higher volume of illegal crossings. The Biden Administration’s response, although seems contradictory, might make sense if it is interpreted as the US government seeking to reduce illegal entry via expedited removal while increasing legal migration processes. Although migrants are placed in great danger with Title 42 being upheld, we can expect a future increase in legal migration patterns and possibly see a repeal of Title 42 in February. Only time will tell.