Covered in earlier posts, Title 42 is a Trump-era policy that has been maintained and defended by the Biden administration up to date. Heralded by conservatives as a necessary tool to slow mass migration at the southern border, and condemned by progressives as an illegal policy that subverts the asylum seeking process, the controversy continues and has flared up most recently in the courts.
On March 4, 2022 a federal judge ruled that the Biden administration cannot use Title 42 to expel families that are being persecuted or return them to “dangerous situations.” The court ruling has yet to come into effect, however, the ruling was made to reflect the changing pandemic situation. The judges stated that the health emergency policy reflects a time when vaccines and other health measures were not possible, but now in light of the availability of vaccines the policy provides no perceivable benefit to public health.
Just hours after this ruling, a federal judge in Texas ruled that the Biden administration can no longer exempt unaccompanied children from Title 42, a decision made by the administration earlier this year. The ruling is a judicial victory for Republicans and another hit on the Biden’s administration’s immigration policy.
Many are viewing these two diametrically opposed court rulings as affronts to the Biden administration’s border policy from both sides, with some signaling that this could be the end of Title 42. While this is an important federal policy that has a resounding effect on US immigration, it is possible that the opposing court cases highlight a different issue: the brewing challenge between the Texas and US governments over immigration policy.
As decided by Arizona v. US 2010, the federal government has the sole constitutional right to enforce immigration policy cited under the supremacy clause of the Constitution, which prevents states from creating laws that preempt federal law. Under this precedent, states are left unable to take direct action with respect to border security. However, states like Texas and Arizona have sought tighter border enforcement through workarounds such as criminalization of migrants, exemplified in Gov. Abbott’s mass prosecution of migrants for trespassing in Operation Lone Star. In Operation Lone Star a large number of resources are being utilized to arrest and prosecute migrants for class A misdemeanors for trespassing. Since these offenses are criminal and not explicitly related to immigration enforcement the state is able to more directly influence immigration policy.
With Operation Lone Star, Gov. Abbott and the Texas legislature have been ramping up state involvement in immigration policy that could potentially lead to a direct challenge to Arizona v. US. Earlier this month, three Texas senators on the Border Security Committee held the first of several hearings over the effectiveness of Operation Lonestar. The senators several times asked speculative questions over the feasibility of Texas being able to act freely without federal oversight “tying their hands behind their back.” One of the speakers, Brett Webster, first assistant Attorney General of Texas, welcomed an opportunity for the state to challenge the Arizona v. US precedent directly, “We ask for [the state legislature] to consider laws that might enable us to go and challenge [Arizona v. US] again.”
Whether or not the state’s challenge comes to fruition may depend on the gubernatorial election. Many speculate that Abbott’s hard lines on immigration are meant to be a driving force for his reelection campaign and to differentiate from Democratic challenger Beto O’Rourke.