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Senate Republicans still want vote on border expulsion policy

A court ruling that keeps the Title 42 directive in place for now does not mean the policy will last forever, they say

Sen. John Barrasso, R-Wyo., speaks during the Senate Republicans' news conference last year.
Sen. John Barrasso, R-Wyo., speaks during the Senate Republicans' news conference last year. (Photo by Bill Clark/CQ Roll Call)

Pandemic border restrictions under the public health directive known as Title 42 are staying in place for now, but Republican lawmakers said they don’t plan to let up pressure on the Biden administration and congressional Democrats over the policy.

The directive has been used for more than two years to rapidly expel migrants without considering their asylum claims. The Biden administration had planned to lift the directive this week, which reinvigorated debate on Capitol Hill about border security over the past two months.

But a federal judge ruled Friday that the Biden administration must keep the policy in place while a group of two dozen Republican-led states challenge the rescission in court.

Sen. John Barrasso of Wyoming, chairman of the Senate Republican Conference, said Tuesday he would continue his party’s push for a Senate vote on the future of the Title 42 directive, a demand that has previously blocked Democratic efforts to move billions of dollars in pandemic aid.

Barrasso also noted the Justice Department plans to appeal the ruling. “They want it to go away tomorrow,” he said. “If the president wants pandemic aid, he’s not gonna get it without a vote on Title 42.”

Republicans also see a continued opportunity to put political pressure on Democrats ahead of a contentious slate of midterm elections. “I think everybody needs to be on the record,” Alabama Republican Sen. Tommy Tuberville said. “Are we for it or are we against it?”

Republican senators also said the court ruling does not mean the policy will last forever, and want to focus on the government’s preparedness for an eventual end of the Title 42 directive.

When the Biden administration stopped using the Title 42 policy to expel unaccompanied minors in early 2021, the government scrambled to set up several emergency intake sites to accommodate thousands of migrant children who entered the country during a short period of time.

Homeland Security Department officials have estimated that daily border encounters could reach 18,000 once the policy is rescinded.

“I don’t know what the time frame is, but it’s going to happen sometime because it’s a public health law,” Sen. John Cornyn, R-Texas, said of the rescission. “There needs to be a substitute that they are going to use once they lose access to that tool to control the flow of illegal immigration.”

Sen. Shelley Moore Capito, R-W.Va., ranking member of the Senate Appropriations Homeland Security Subcommittee, said she “welcomed” Friday’s court ruling but would continue her efforts to improve border security ahead of the termination.

“I think the important thing to look at is what when Title 42 goes away — which it will — we need to make sure that we have protocols in place that are going to actually face this issue with deterrence and other things,” Capito said.

Meanwhile, moderate Democrats who had questioned the administration’s plan to end Title 42 expulsions had mixed feelings about a possible vote on the issue. Before the court ruling, several signed onto a bill that would force the government to maintain Title 42 expulsions until 60 days after the COVID-19 public health emergency ends.

But the court decision reduces the immediate pressure some Democrats were facing to address a possible increase in migration at the U.S.-Mexico border. House Democrats and immigrant advocates have called on the Senate to vote against any legislation that would make the pandemic-era asylum restrictions permanent.

Sen. Gary Peters, D-Mich., called the issue a “moot point” following Friday’s court ruling and said Democrats should focus on other priorities.

Sen. Mark Kelly, D-Ariz., who signed on to the legislation to maintain the Title 42 directive, said he still wanted a vote on the issue, but did not want the controversial topic to slow up pandemic aid.

“In general, I just don’t think it’s a good idea to tie one important thing to another,” Kelly said. “We should be able to do more than one thing at a time.”

Sen. Maggie Hassan, D-N.H., who also signed onto the bill, did not say whether she supported a Senate vote on Title 42. But she said her broader efforts to improve border security would not change.

“I’ve just been focused on making sure that we have the resources and the personnel and the technology at the border to make sure it’s safe and secure,” Hassan said.

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