The NPR Politics Podcast - In Legal Limbo, Biden Has No Clear Path To An Immigration Fix

Episode Date: December 21, 2022

Title 42, implemented by the Centers for Disease Control and Prevention during the pandemic, has been used by the Trump and Biden administrations to expel millions of asylum seekers from the country. Mired in legal battles from both ends of the political spectrum over the policy, the Biden administration acknowledges that changes have to be made to the nation's immigration system — but reform appears to still be politically impossible.This episode: politics correspondent Susan Davis, White House correspondent Asma Khalid, and immigration correspondent Joel Rose.This episode was produced by Elena Moore and Casey Morell. It was edited by Eric McDaniel. Our executive producer is Muthoni Muturi. Research and fact-checking by Katherine Swartz.Unlock access to this and other bonus content by supporting The NPR Politics Podcast+. Sign up via Apple Podcasts or at plus.npr.org. Connect:Email the show at [e-mail] the NPR Politics Podcast Facebook Group.Subscribe to the NPR Politics Newsletter.Learn more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

Hi, this is Ryan in Los Angeles, and I'm currently waiting for my flat tire to be fixed on my new e-bike. This podcast was recorded at 107 p.m. on Wednesday, December 21st. Things may have changed by the time you hear it, but hopefully I'll be cycling back home. Enjoy the show. Oh, my husband wants an e-bike so bad. I think it's rather amazing that folks take the time to send us a timestamp, you know, in the midst of a flat tire situation. We're always on their minds. Hey there, it's the NPR Politics Podcast. I'm Susan Davis. I cover politics.

And I'm Asma Khalid. I cover the White House. And NPR's Joel Rose is here. He covers immigration for us, and he joins us from El Paso. Hey, Joel. Hey, glad to be here. So in the early days of the pandemic, President Trump used a provision that was known as Title 42 to expel migrants who had arrived across the southern border from Mexico before they could make an asylum claim. It's a policy nominally related to public health, but it's remained in effect even as most other pandemic rules and regulations have fallen away. So, Joel, the Biden administration has tried to wind down this policy repeatedly to go back to processing these asylum claims when migrants are at the U.S. border. It's been blocked by the courts, including the Supreme Court as recently as this week. So, why is that? Well, the first time the Biden administration

tried to end Title 42 was back in the spring. The Centers for Disease Control and Prevention said it was no longer needed to protect public health, but a coalition of mostly Republican-led states came together, took the administration to federal court in Louisiana, arguing that Title 42 is needed to hold back a surge of illegal immigration. And they won. They got an injunction that said the administration can't end Title 42 while that case plays out. At the same time, the Biden administration has been fighting a separate case in Washington, D.C. against immigrant advocates, including the ACLU. They argue that Title 42 was illegal to begin with because it blocked access to asylum. They also won. Last month, a judge in Washington, D.C. said

Title 42 was unlawful and said the administration had to stop using it by today. But a coalition of, again, mostly Republican-led states brought an 11th hour appeal all the way up to the Supreme Court, which has stayed that lower court ruling for now. And that is where things stand. So in the meantime, the Biden administration has continued to enforce the policy, right? I mean, they're expelling migrants who cross the border. Can you give a sense of the numbers of people that are in contention here? Yeah, at first, when the Trump administration put Title 42 in place, it was pretty much all migrants were being expelled. The Biden administration has scaled that back, though. The administration has excluded unaccompanied children, for example, also a lot of family groups. But it's still using Title 42 for a lot of adults, and it has expelled

migrants more than 2 million times since President Biden took office. The other thing I would say about it is that Title 42 has not been applied equally for all nationalities. And that's because Mexico has only agreed to take back certain migrants from certain countries, and also sometimes because the home countries won't accept these migrants back either. So it means there have been sort of de facto exemptions from Title 42 for certain groups, Cubans, Nicaraguans, until very recently also Venezuelans, that have made the application of the policy very uneven in practice. And you could argue that's sort of become its own incentive for migrants from those countries and also for smugglers who see this as

kind of a marketing opportunity. Asma, this seems like such a double-edged sword for the Biden administration, both politically and as a matter of policy. I mean, on the one hand, they say they want to revoke Title 42. They're under significant pressure, particularly from the left, to lift the policy. But at the same time, I think there's a pretty broad acknowledgement that lifting it could lead to a surge at the border. And the administration doesn't seem to have a clear answer to that problem either. You know, this is really a no-win situation for the White House. And while I think there have certainly been outspoken folks saying that, you know, lifting Title 42 will essentially lead to a surge of migrants coming across the border, the White House is thinking is that, well, those are the rules of our asylum laws here in the

United States. And so what else can they do? They sort of feel like their hands are tied. I mean, asylum laws say that people trying to enter the country seeking asylum have to be allowed to enter and be processed through a certain mechanism. And so, you know, the kind of thinking is, well, these are the laws. What can they do in lieu of essentially broader immigration reform, which I would say politically has really very little chance of seeing the light of day, given the fact that Republicans will control the House in this new Congress coming in January. But look, you know, on the other hand, as you mentioned, Sue, there have certainly been folks on the left who argue that this was really not about public health now for certainly months and months, right?

Like the country has been operating presumably in a sense that the pandemic has, I don't want to say has finished, but it's certainly evolved. And so why is there still this relic of the pandemic if the country has moved on from the height of the coronavirus days? And Joel, as we said, you're in El Paso. What are the people on the ground who are dealing with the influx of migrants telling you? Yeah, El Paso has seen a big influx in the past few weeks in anticipation of Title 42 lifting. And you know, the strain is definitely showing here.

Shelters are full. Some migrants are sleeping on the street, even as temperatures plunge below freezing at night. Some are also sleeping in the airport, which is, you know, not a very big airport, and flights out are really expensive right now with the holiday rush on. You know, and all of that is with Title 42 still in place.

You know, and folks here are sort of on edge because they just don't know how many more migrants might be coming if Title 42 lifts. I mean, the mayor of El Paso has said there could be tens of thousands in Juarez, Mexico, right across the river, you know, waiting for a chance to cross. You know, it's a really anxious time as people wait to see what's going to happen, both with the Supreme Court and with the administration's moves going forward. And even during this waiting period, I should point out that the Biden administration has said that they are urging Congress to use this kind of interim time when they don't really know exactly what's going to happen with Title 42 to provide funds that they've asked for. I believe they've asked for $3.4 billion of funding for border security and management. And that money would, in their view, presumably help whatever happens once this order lifts.

Joel, do you know what the next steps in the process are? Is it just a waiting game to see what the Supreme Court rules? On the legal front, yes. I mean, we are just waiting for the Supreme Court to either extend kind of a longer hold on the lower court ruling while the appeal plays out, or to lift the stay that they've got in place, which would allow Title 42 to end, you know, probably in the next couple of days after that decision. But, you know, there's a lot of ways that could go. The administration has floated some proposals of what they would do to

limit asylum at the border if Title 42 is lifted. Some of them have even been compared to things that the Trump administration tried. The White House does not like that comparison. They say, you know, they're trying to create incentives for people to apply for asylum from outside of the U.S. and not to cross illegally in order to seek protection. And they, you know, they say that nothing has been officially decided. But, you know, it seems like they're waiting also to see what happens with Title 42, to see if it's really ending or if they're going to get another reprieve from the courts. All right, let's take a quick break. And we'll talk more about this when we get back. And we're back. And, Joel, I think one thing it's worth taking a step back on is reminding people,

what are the forces that were driving so many migrants to attempt to cross the border into the United States. We've seen the fastest growth in the number of migrants coming from places with authoritarian governments and places that you would either say are failing or failed states, Nicaragua, Cuba, Venezuela, also Haiti. And when you ask people why they're leaving, they talk about political instability and violence. They talk a lot about extortion schemes, threats from gangs to destroy their businesses if they don't pay protection money. You know, and just generally economic conditions are bad in the countries these people are leaving. And they know that all of those things are better in the U.S.

Many of them have friends and neighbors and family who've made the trip, some of them pretty recently. And some, not all of these people, but a good number probably have jobs and places to stay lined up in the US if they can get here. So it's a mix of factors, both pushing folks to leave and also drawing them here. Asma, you interviewed Vice President Kamala Harris this week, and you talked about a lot of things. But specifically, you did talk immigration and the politics of ending Title 42. What did she tell you? And Sue, I should point out that we spoke just hours before the Supreme Court decision came down that we all have been discussing. You know, when I pointed out to her that there has been bipartisan concern about an influx of migrants that could enter the country once Title 42 ends,

and, you know, there have been people, even I pointed out to her, the governor of her home state of California, who really expressed a lot of concern. He recently told ABC News that what we've got right now is not working and that it could break in a post-42 world unless we take responsibility and ownership. And so, you know, essentially what I was trying to understand from her is what can the White House do unilaterally? Listen, I think that it is right to say that we need leadership on this issue, in particular from Congress. Now, the president and I and our administration, we are going to do everything that's within our ability as the executive branch. And that means, again, putting more agents on the border as appropriate so that we can manage what might be an influx. It is about increasing the work that we have been increasing around arresting human smugglers. And it is the work

that we have been doing that has been about bringing the partners and the allies together on an international level, understanding that we are seeing these migration trends around the globe. I mean, then there's the politics of this all too, right? I mean, there are things that are certainly factual about the immigration environment, but then there's also the dynamics of which, you know, just any sort of conversation about immigration is extremely polarized right now.

It's fascinating to me because I think immigration is an issue where the views are so divergent. I mean, our poll that was out, our most recent poll out, showed that a quarter of Republicans think that immigration should be a top concern of the new Congress, but less than 1% of Democratic voters said the same. I mean, the sense of urgency around immigration, I think, is felt very differently between Republicans and Democrats. I think Republicans have focused on immigration, certainly much more in their campaigns in 2022. And the incoming House Republican majority, I think that they see immigration as one of the best policy arguments

to sort of engage in a political fight with the Biden administration. Because Asma, tell me if you feel differently, but I think it's fair to say that the Biden administration has not really clearly articulated or outlined what they want their immigration policy to look like. And Harris made the point, yes, of course, Congress has to pass laws. But I can't think of what the Biden administration is even asking them to do. I mean, so the president did lay out his vision for a comprehensive immigration reform, the White House says, on day one when he entered the White House. But then, you know, they quickly moved on to a whole bunch of other legislative priorities. And

you can make the argument that in some ways, this White House may have missed its moment on real immigration reform, right? Because you're looking at a Congress that is likely to be unfriendlier come January, certainly with with Republicans in control of the House. You know, but at this point in time, like I don't really see where the end is for immigration reform. Right. I mean, I asked the vice president about Title 42. She quickly pivoted to the need to have some sort of broader immigration reform, and says that really any real fix is going to require Congress's intervention. The first bill that we offered Congress was a bill to pass comprehensive immigration reform and to create a pathway to citizenship. And sadly, what we have seen in particular, I'm sad to say from Republicans in Congress, is an unwilling to play political games with the lives of human

beings who in many cases are fleeing great harm and want a better life for their family. Yeah, and I think that leaves the Biden administration, you know, sort of stuck with the limited things it can do on its own without help from Congress. And I think you said before, this is a truly difficult situation with asylum. I mean, I think the White House really does want to preserve asylum at the border, especially for the most vulnerable migrants. But they also want to discourage people with weak asylum claims from crossing the border illegally, you know, not only for political reasons, but also, you know, I think for humanitarian ones, they want to discourage people from making this dangerous journey through Mexico, if they're just going to be turned away.

But the administration is finding that this is a really difficult balance to strike, just like other administrations have before. I mean, if there were easy answers, you know, I think they would have surfaced. All right. I think we'll leave it there for today. Joel Rose, as always, thanks for coming on. You're welcome. I'm Susan Davis. I cover politics. And I'm Asma Khalid. I cover the White House.

And thanks for listening to the NPR Politics Podcast.