The Memo: Judge hands Biden a legal defeat but a political reprieve

A federal judge appointed by former President Trump gave President Biden and Democrats an odd kind of reprieve on Friday.

Judge Robert R. Summerhays issued a preliminary injunction Friday afternoon preventing the White House from lifting Title 42, the controversial measure that has been used to turn back migrants and people seeking asylum at the southern border.

Biden had intended to end the measure on Monday. But his plans to do so had caused a near-mutiny in Democratic ranks, amid both practical and political fears.

There are concerns about the readiness of government agencies to deal with a massive new influx of migrants — projected to rise as high as 18,000 per day. 

There are also fears about the political potency of the issue, and its capacity to be weaponized by the GOP in the run-up to the midterm elections. 

Democrats already face a grim environment in those elections, with Biden’s approval ratings at a low ebb and inflation running at its highest levels since the early 1980s.

The judge’s injunction may only buy the Biden administration time. It prevents the administration from lifting the policy while an underlying case, in which 24 GOP-led states sued, is decided.

But for the moment, it gets the president off a painful hook.

Biden had been caught between the growing chorus of Democrats calling for Title 42 to be extended and other voices — both in the mainstream of his party and among the activist base – who believe its rescission is already overdue.

Democratic senators facing tough reelection battles this fall have been especially to the fore in resisting Biden’s plans. 

They include Sens. Mark Kelly (Ariz.), Maggie Hassan (N.H.), Catherine Cortez Masto (Nev.) and Raphael Warnock (Ga.). Some liberal-leaning candidates have also expressed misgivings, including the party’s Senate nominee in Pennsylvania John Fetterman and Wisconsin Lt. Gov. Mandela Barnes, who is also a Senate candidate.

On the other side of the equation, Senate Majority Leader Charles Schumer (D-N.Y.) has called for Title 42 to be ended, as have New Jersey’s two Democratic senators, Cory Booker and Robert Menendez.

The judge’s ruling at least permits Biden to say — for the moment — that he tried to end Title 42 — without immediately having to face the consequences for doing so. Politically, that may not be the worst position to be in.

Keir Murray, a Democratic strategist based in Texas, told this column: “Among the contingent in the Democratic base that strongly feels Title 42 should be repealed, if you can put that on a judge, that removes culpability in their eyes — while on the practical matter, not having to deal with the fallout.”

Murray, who stressed that he was speaking about the political implications of the Title 42 debate rather than the morality of the policy, added:

“I do think it is a political vulnerability [for Democrats] simply because there has been a large surge in folks coming to the southern border at a time when we are still in recovery from COVID. There is a lot of concern about public safety, generally speaking, around the country. It creates a political challenge for Democrats, absolutely.”  

The challenge is especially acute because of the huge numbers of attempted border crossings in recent months. Newly released figures for April saw that figure rise to 234,088 encounters — the highest number on record.

Opponents of lifting Title 42 note that if the Department of Homeland Security’s projection of up to 18,000 crossings per day became reality, it would amount to more than 500,000 crossings per month.

Republicans have been blasting away at the White House, seeking to brand the situation “Biden’s border crisis.” Those attacks — and the realities of the situation — are having an impact.

In a Quinnipiac University poll released Wednesday, just 28 percent of adults approved of Biden’s handling of the situation at the southern border, while 58 percent disapproved. Among independent voters, 61 percent disapproved of how Biden had coped with the issue.

Matt Mackowiak, the chair of the Republican Party in Texas’s Travis County, said that when it came to the politics of the issue “all you need to know is that vulnerable House and Senate Dems opposed revoking Title 42. There’s huge risk if Biden goes through with it.”

Speaking moments before the judge’s decision was announced, Mackowiak predicted that Biden would be “hoping a judge blocks it. That way he can tell progressives he tried, but not actually do it.”

In a Friday evening statement responding to the judge’s ruling, White House press secretary Karine Jean-Pierre noted that the administration “disagrees with the court’s ruling” and that the Department of Justice will appeal. But she also stated that, “in compliance with the court’s injunction, the Biden Administration will continue to enforce” the regulation until the appeal is decided.

Richard Murray, a senior research fellow at the Hobby School of Public Affairs at the University of Houston, noted that the whole debate over Title 42 was “a pretty big deal if you are in Texas, with our 1800-mile border.”

Had the policy been lifted, he added, “all of that will intensify.”

That won’t happen just yet. 

But the White House has only got some temporary respite from the gathering storm.

The Memo is a reported column by Niall Stanage.