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House Democrats hold firm on Title 42 policy after court ruling

Several Senate Democrats who opposed the rescission indicated they'll continue to push the administration on its southwest border practices

Rep. Pramila Jayapal, chair of the Congressional Progressive Caucus, speaks at a news conference last month.
Rep. Pramila Jayapal, chair of the Congressional Progressive Caucus, speaks at a news conference last month. (Tom Williams/CQ Roll Call)

Corrected May 24 | House Democrats and immigrant advocates called on the Senate to vote against any legislation that would make pandemic-era asylum restrictions permanent, after a court ruling Friday that keeps the border controls in place for now.

The Biden administration had planned to rescind the public health-related directive known as Title 42 on Monday, after the Centers for Disease Control and Prevention determined it was no longer needed.

Instead, Judge Robert Summerhays ruled that the policy should be maintained nationwide while two dozen Republican-led states pursue a lawsuit that challenges the Biden administration decision. Title 42 has allowed border agents to rapidly “expel” migrants without considering their asylum claims for more than two years.

On a call with reporters Monday, Congressional Progressive Caucus Chair Pramila Jayapal, D-Wash., described the ruling from a Trump-appointed Louisiana federal judge as “a decision driven by politics and not facts.”

Jayapal said the court order means Title 42 will be in place regardless of congressional votes, so it is important for Democrats not to vote in favor of any legislation that “demonizes immigrants,” either a stand-alone bill or an amendment to a larger package.

“This will have to play out in the courts, because we will not allow immigrants to once again be cruelly thrown under the bus,” Jayapal said.

A handful of Senate Democrats, including those soon facing tough midterm races, have joined with Republicans and raised concerns about the Biden administration’s plans to lift Title 42. Some have signed on to bipartisan legislation that would keep Title 42 in place until the public health emergency is lifted.

Jayapal and other Congressional Progressive Caucus leaders last week announced they would oppose any legislation that would extend the Title 42 directive, and the Congressional Hispanic Caucus has done the same.

Jayapal on Monday also indicated the CPC would focus its efforts on educating members of the Democratic Party. She noted that Republicans will likely continue to attack Democrats on immigration ahead of the midterm elections.

Democrats sometimes feel a push to “outdo Republicans on immigration,” Jayapal said, but it “doesn’t bode well in the elections.”

“I think we just have to continue to educate our own party, frankly, about how immigration works and the politics of immigration so that people don’t rush to try to, you know, ‘out-Republican’ Republicans on immigration,” Jayapal said.

More reactions

Several other House Democrats and immigrant advocates slammed Summerhays’ ruling, which the Justice Department plans to appeal. The judge found the two dozen Republican-led states behind the lawsuit had proved they were likely to prevail on their claims that the CDC did not follow the proper steps when it issued its memo to terminate the Title 42 policy.

Rep. Joaquin Castro, D-Texas, in a news release Friday, called the decision “disappointing and wrong” and said it “will break our immigration system even further and cause unconscionable suffering for asylum-seekers and immigrant communities.”

Rep. Jesús “Chuy” García, D-Ill., tweeted Friday that the ruling usurps the CDC’s authority to lift the Title 42 order and that “it is up to [President Joe Biden] when that order should be rescinded.”

Congressional Republicans praised Summerhays’ ruling. Sen. James Lankford, R-Okla., tweeted that “even the courts agree with me that the Biden Admin policies are arbitrary and wrong.”

New York Rep. John Katko, the top Republican on the House Homeland Security Committee, in a news release called the ruling “a win for our homeland security, Border Patrol agents, and the safety of Americans.”

“Homeland Republicans will continue to conduct tireless oversight to fight for the resources our frontline border law enforcement need and protect U.S. communities feeling the damaging impacts of this crisis,” Katko said.

Key senators

Several Senate Democrats who had opposed the planned Title 42 rescission plan to press the administration on southwest border policies. Republicans have demanded a vote on an amendment to preserve Title 42 on COVID-19 relief legislation, essentially using division over the issue within the Democratic Party to hold up the broader bill.

Sen. Mark Kelly, an Arizona Democrat who backs the bipartisan legislation to preserve the expulsion policy, said in a news release Friday that Summerhays’ ruling “does not change the fact that there is a crisis at the border and there must be a detailed plan that can be implemented before Title 42 is lifted.”

“Arizonans deserve a secure, orderly, and humane border response and I will continue to hold the administration accountable to that,” Kelly said.

Sen. Jon Tester, another co-sponsor of that bill, expressed a similar sentiment. The Montana Democrat said Monday, through a spokesperson, that he “will continue to push” the Department of Homeland Security “to address issues with our border” while the court case continues.

“We need to secure our border, and we need to fix our broken immigration system with a comprehensive, bipartisan solution, which is why I’m calling on my Republican and Democratic colleagues to join me in getting it done,” Tester said.

Laura Epstein, a spokesperson for Sen. Maggie Hassan, also a bill co-sponsor, said in an email Monday that the New Hampshire Democrat “will continue to share her concerns about prematurely lifting Title 42 and will continue pressing the administration on ways to have a safe, secure, and humane border” as litigation continues.

Arizona Democrat Sen. Kyrsten Sinema, who led the legislation extending Title 42 and chairs a Senate border panel, said the Biden administration “should use this delay to coordinate with local leaders and get resources on the ground in Arizona communities to implement a workable plan before ending Title 42.”

A representative for Sen. Joe Manchin III of West Virginia, the fifth Democrat who sponsored the bill, didn’t immediately return a request for comment on the ruling on Monday, nor did his office release a press statement.

Marielena Hincapié, executive director of the National Immigration Law Center, said Monday on the call with reporters that Democrats “must lead with clarity and resolve to forcefully reject any measure to extend Title 42.”

“This is a moment that calls for moral leadership and courageous leadership. They must stand in stark contrast to the hateful politics that the core of the Republican Party have embraced,” Hincapié said.

This report was revised to reflect comment from Sen. Kyrsten Sinema.