Expiration of Title 42 border rule prompts much rhetoric, less action

By: - May 17, 2023 3:49 pm

Venezuelan migrants wait for food at a hotel provided by a local charity in El Paso, Texas. An increase in border crossings has created a backlash in some states as a pandemic-era policy known as Title 42 expires (Joe Raedle/Getty Images).

The end of a pandemic-era policy that allowed U.S. border authorities to quickly turn back some migrants has prompted a mixed reaction from state and local governments, including new restrictions on immigrant workers, beefed up border enforcement and entreaties for more federal help.

But unlike the 2010s, when conservative states such as Alabama, Arizona and Georgia enacted a series of strict anti-immigrant policies, the reaction from most red-state officials has been long on rhetoric and short on concrete action. Their reluctance reflects the influence of agricultural interests and other employers who rely on migrant workers and are wary of shutting off the spigot amid a nationwide labor shortage.

Another factor that is giving some states pause is that the courts ultimately struck down the earlier anti-immigrant laws.

“[The 2010s were] a high-water mark and it had since subsided because courts found that states can play only a very limited role,” said Muzaffar Chishti, a senior fellow at the nonpartisan Migration Policy Institute. But increased illegal border crossings have fueled enough outrage in some states to draw some state and local governments back into the immigration fight.

Surprisingly, border crossings have decreased by half since Title 42 procedures expired last week. Nevertheless, fears of a surge prompted some states to act.

In Texas, for example, Republican Gov. Greg Abbott last week announced the creation of a new tactical border force to supplement the National Guard soldiers and state troopers he first deployed to the border in 2021 to intercept immigrants crossing illegally, drugs and arms. Equipped with Blackhawk helicopters and C-130 Hercules aircraft, the new force is charged with repelling large groups of migrants, according to Abbott’s office.

Also last week, the Texas House passed a bill that would make illegal border-crossing a state crime and create new law enforcement agencies and courts focused on immigration.

Meanwhile in Florida, Republican Gov. Ron DeSantis last week signed legislation limiting social services for undocumented immigrants and stiffening requirements for businesses to verify employees’ eligibility to work. The Florida measure also provides $12 million for the DeSantis administration to transport migrants to other states, and mandates that hospitals that accept Medicaid inquire about patients’ immigration status.

“If Florida and Texas are any guide, then it’s clear that state leaders are favoring the interests of those who pay the price of this historic mass illegal migration over the interests of the employers and NGOs who profit from it, and this is a new development,” said Jessica Vaughan, director of policy studies for the conservative Center for Immigration Studies.

But Chishti said agricultural interests successfully watered down some parts of the Florida package. The legislation DeSantis signed allows the transportation of migrants within the state, for example, and it preserves in-state tuition breaks for undocumented students.

In Texas, some supporters of beefed-up border security also worry about the labor shortage. Democratic state Rep. Eddie Morales represents nine of the state’s 14 border counties and is a co-sponsor of the bill the House approved last week. But in a letter to Abbott last year, Morales asked the governor to expand ports of entry to facilitate trade with Mexico and create a program that would allow migrant workers to work legally for Texas employers that need them.

In Congress, House Republicans from agriculture-heavy districts cited similar concerns earlier this month in delaying the eventual passage of a broad GOP border security bill, which would eventually require employers to electronically verify the work status of their new hires.

Republican U.S. Rep. David Valadao of California, who is a dairy farmer, said he voted for the bill only after receiving assurances from GOP leaders that they would address the farm labor shortage. “Many industries in the Central Valley, including agriculture, rely heavily on immigrant labor,” Valadao said in a statement. “While these workers play an essential role in feeding America, many of them live in fear.”

Many Republican governors criticized the Biden administration for allowing Title 42 to expire. Iowa Gov. Kim Reynolds called it “our most effective tool to slow this invasion of our country,” while Montana Gov. Greg Gianforte called the end of Title 42 a “disastrous milestone … throwing gasoline on the fire that is the crisis at our southern border.”

North Dakota Gov. Doug Burgum said “the security risk grows even worse with the expiration” of the policy. At the same time, however, Burgum called for expanding business hours at the state’s 310-mile border with Canada, shortened during the pandemic, to “better facilitate legal cross-border traffic that supports our economy and friendship with our Canadian neighbors.”

For their part, Democratic governors mostly have expressed support for migrants but also dismay at the flood of people crossing the border looking for asylum. Since mid-2021, U.S. officials have reported roughly 200,000 border encounters with migrants each month, compared with about 50,000 in 2020.

New York Gov. Kathy Hochul declared an emergency days before the expiration of Title 42 and called out National Guard troops for “logistical and operational support” as New York City transfers some migrants to suburban shelters. Hochul offered $1 billion in state funding for shelters, health care, legal help and voluntary relocation.

But some local leaders are resisting such efforts. Republican officials in Rockland County, New York, a suburb of New York City, sent sheriff’s deputies to stop any buses headed for a local hotel to be used as a migrant shelter.

The Biden administration’s plan for controlling the border after Title 42 “does not adequately address this crisis,” Arizona Democratic Gov. Katie Hobbs wrote last month to federal officials, asking for more help for border communities trying to house and feed asylum-seekers. California Democratic Gov. Gavin Newsom also has asked for more federal help with migrants. “We cannot continue to do this work alone,” Newsom said.

The Biden administration has followed the expiration of Title 42 with new border restrictions aimed at stopping asylum-seekers from rushing over uncontrolled border areas. Now asylum-seekers will have to use a phone app from outside the country to make appointments at ports of entry. Anybody crossing the border between ports of entry will be denied asylum, a move that’s already drawn fire from the American Civil Liberties Union and other immigration advocates who are suing to stop it.

Republicans favored Title 42 because it offered an “expeditious” way to turn back migrants from Mexico and Central American countries, Chishti of the Migration Policy Institute said. But Mexico had to agree to the expulsions and would not accept the return of many people from outside Central America, causing a rush to the border by people who knew they could not be returned under the policy, such as Cubans, Haitians and Chinese migrants, Chishti said.

“It outgrew a lot of its usefulness. There are exceptions and now you have to interview people to find out if they’re exceptions, and that takes time. Now it’s not so expeditious,” Chishti said.

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Tim Henderson
Tim Henderson

Tim Henderson covers demographics for Stateline. He has been a reporter at the Miami Herald, the Cincinnati Enquirer and The Journal News in suburban New York. Henderson became fascinated with census data in the early 1990s, when AOL offered the first computerized reports. Since then he has broken stories about population trends in South Florida, including a housing affordability analysis included in the 2007 Pulitzer-winning series "House of Lies" for the Miami Herald, and a prize-winning analysis of public pension irregularities for The Journal News. He has been a member and trainer for the National Institute for Computer-Assisted Reporting since its inception 20 years ago, specializing in online data access and visualization along with demographics.