THE BORDER LEGACY OF TITLE 42 EXPULSIONS.

• Author: Harrigan, Fiona
• Position: IMMIGRATION

WHEN PRESIDENT JOE Biden announced in April that he would not extend a controversial public health order that allowed U.S. immigration officials to expel migrants, many on the right criticized the move as premature or misguided. But the order has actually made the border less secure.

The Public Health Service Act, part of Title 42 of the U.S. Code, authorizes federal officials to control the interstate and international spread of diseases. The Trump administration invoked Title 42 in late March 2020 to keep would-be migrants from crossing into the U.S. from Canada and Mexico, ostensibly to prevent the spread of COVID-19. Biden repeatedly extended the order despite the harm to migrants and objections from U.S. physician groups. A federal judge has now blocked the administration from lifting the order, signaling a potential legal battle ahead.

Customs and Border Protection (CBP) invoked Title 42 in nearly 1.8 million migrant encounters between April 2020 and March 2022, amounting to 61 percent of total encounters. Title 42 allowed immediate expulsion and barred affected migrants from applying for asylum.

Although immigration opponents pointed to those numbers as proof of the policy's necessity, the figures were inflated. Because Title 42 is a health measure, immigration officials could not impose reentry penalties on expelled migrants. With no disincentive for reentry, the share of encounters that involved repeat crossers jumped to 27 percent in 2021, nearly four times higher than in 2019.

Excluding repeat crossings, the number of border apprehensions...