Even the National Guard won’t be enough to solve border crisis when Title 42 ends

We need to look beyond the current legal arguments over whether or not the Biden administration can — or should — terminate Title 42 order, which requires U.S. Customs and Border Protection (CBP) to process undocumented land border crossers promptly without asylum screening or other Title 8 immigration processes — and then to expel them back to the country they came from through the closest port of entry.

The simple fact is the Title 42 order — instituted in 2020 as part of the previous administration’s pandemic response — will be terminated eventually.

What then?

Nearly 2 million migrants have been expelled under the order since it was implemented, and all indications are that the Biden administration is entirely unprepared for what will happen when the order ends.

Brief background

The Biden administration announced that expulsions under the order would stop at the end of May; several states sued, and a federal district court judge issued a preliminary injunction ordering the Biden administration to hold off.

The judge issued the injunction because he thought the states had established a substantial likelihood of success with their claim that the administration’s termination did not comply with the Administrative Procedure Act’s (APArulemaking requirements.

The administration has appealed — but it doesn’t have to reverse the judge’s injunction to be able to terminate the order: It could just start over with a new termination using the judge’s decision as guidance on how to comply with the APA requirements.

The administration may be stalling because it hasn’t figured out how to deal with the flood of illegal crossings that will almost certainly occur when the order is terminated. 

Two problems

National Border Patrol Council President Brandon Judd has expressed concern that termination of the Title 42 order will open the floodgates to illegal immigration. Border patrol resources are stretched when 3,500 illegal crossers a day are apprehended. When the total reaches 5,000 the border patrol’s resources are overwhelmed.

The administration is expecting up to 18,000 a day.

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