Title 42 explained: What is it, why is it ending, what’s next?

Title 42, a controversial Trump-era policy that allowed for the rapid expulsion of asylum seekers throughout the COVID-19 pandemic, is set to expire at midnight Friday. 

The rule’s expiration has sparked concerns about a surge of migrants at the U.S.-Mexico border. But what is Title 42, why is it ending and what happens next?

What is Title 42?

A U.S. Border Patrol agent leads a line of women to a van as they wait to apply for asylum between two border walls Thursday, May 11, 2023, in San Diego. (AP Photo/Gregory Bull)

Title 42 is the entire section of U.S. federal regulations that pertain to public health. However, it has come to refer to a specific rule within that section that allows the director of the Centers for Disease Control and Prevention to block noncitizens from entering the U.S. for public health purposes.

The Trump administration implemented the rule in the early stages of the pandemic, citing the “serious danger of the further introduction of COVID-19 into the United States,” according to U.S. Customs and Border Protection. 

The rule, which President Biden kept in place after taking office, has been used more than 2.8 million times since March 2020 to quickly expel migrants to Mexico or their home country without allowing them to seek asylum.

Why is it expiring?

Title 42’s expiration comes more than a year after the Biden administration first moved to rescind the order. (AP Photo/John Minchillo)

Title 42 is set to expire Thursday at midnight as the COVID-19 public health emergency officially comes to an end.

The rule’s end comes more than a year after the Biden administration first moved to rescind the order. Just days before Title 42 was set to expire last May, a federal judge ruled that the administration could not roll back the policy while a challenge from a group of GOP-led states proceeded.

However, a separate federal judge ruled in November that Title 42 violated the Administrative Procedures Act and ordered that the administration wind down its use of the policy by late December.

As it was set to expire once again, the Supreme Court ordered that the rule remain in place until it heard arguments and came to a final decision.

The Biden administration ultimately announced at the end of January that it would end the COVID-19 public health emergency May 11 — also ending the rule that was tied to the emergency declaration.  

What does its expiration mean?

White House press secretary Karine Jean-Pierre listens as Homeland Security Secretary Alejandro Mayorkas speaks about border security during a briefing at the White House, Thursday, May 11, 2023, in Washington. (AP Photo/Evan Vucci)

The expiration of Title 42 is widely anticipated to cause a surge of migrants at the southern border, with border patrol preparing for as many as 10,000 migrants a day. 

“We are doing all we can,” Biden said Tuesday, acknowledging that “it’s going to be chaotic for a while.”

However, even as the Title 42 restrictions are lifted, the administration unveiled a new rule on Wednesday that would dramatically limit asylum.

The policy, which is similar to another Trump-era rule, would block migrants from seeking asylum in the U.S. if they passed through another country along the way that also offers asylum. 

“We are finalizing a new rule to encourage individuals to use available lawful, safe and orderly pathways to enter the United States,” Homeland Security Secretary Alejandro Mayorkas said Wednesday. “The rule presumes that those who do not use lawful pathways to enter the United States are ineligible for asylum.”

What has been done at the southern border ahead of its expiration?

President Joe Biden shakes hands with Texas Gov. Greg Abbott as he arrives at El Paso International Airport in El Paso Texas, Sunday, Jan. 8, 2023. Rep. Veronica Escobar, D-Texas, stands at right. (AP Photo/Andrew Harnik)

Beyond its new asylum rule, the Biden administration is also surging resources to the southern border — including 1,500 military personnel, 24,000 law enforcement personnel and 1,100 new border patrol processing coordinators — in an effort to contain the potential fallout from Title 42’s end.

The Department of Homeland Security also plans to increasingly rely on Title 8, which allows for the expedited deportation of migrants who are encountered between legal ports of entry and bars those migrants from seeking reentry for five years. 

Texas Gov. Greg Abbott (R), who has slammed Biden for sending 1,500 soldiers to “do paperwork,” said Monday that the Lone Star state is deploying a new “tactical border force” to meet the expected surge.

“We’re deploying today a new Texas tactical border force made up of elite National Guard who are specifically trained for one thing,” he said. “And that is to identify areas illegal immigrants are trying to cross the border and to fill that gap and to repel them.”

What are lawmakers saying?

Sen. Kyrsten Sinema (I-Ariz.) discusses Title 42 ending at midnight with reporters alongside Sen. Thom Tillis (R-N.C.) on Thursday, May 11, 2023 and the effect on southern border states with an increase in crossing, apprehensions and issues housing those have made the journey.

Sen. Kyrsten Sinema (I-Ariz.) suggested Sunday that Title 42’s end would result in a “humanitarian crisis” at the border.

“Everyone here in Arizona knows we are not prepared. The Biden administration had two years to prepare for this and did not do so,” Sinema said. “And our state is going to bear the brunt and migrants will be in crisis as soon as next week. It will be a humanitarian crisis because we are not prepared.”

Rep. Tony Gonzales (R-Texas), who represents a district along a huge swath of the U.S.-Mexico border, also warned Sunday that border crossings were “getting worse.”

“This is honestly the fourth time that we’ve seen this Title 42 is going to end and every time we come to this situation before the crisis is this uptick in illegal immigration … the numbers are getting worse,” he said.

However, Sen. Bob Menéndez (D-N.J.) called Biden’s “militarization” of the border in response to the potential surge of migrants “unacceptable.”

“There is already a humanitarian crisis in the Western Hemisphere, and deploying military personnel only signals that migrants are a threat that require our nation’s troops to contain. Nothing could be further from the truth,” Menéndez said in a statement.

The New Jersey senator also criticized the administration’s new asylum rule Wednesday, noting that the end of Title 42 presented “a clear opportunity to reset their approach to migration.”

“It is disappointing to see the Administration instead chose to move forward with a harmful transit ban that fundamentally limits access to our nation’s asylum system,” he added in statement with Sens. Ben Ray Luján (D-N.M.) and Alex Padilla (D-Calif.).