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House pandemic bill raises debate about future of border restrictions

GOP votes to end COVID-19 health emergency, but pandemic was stated reason for Title 42 policy they support

Rep. Brett Guthrie, R-Ky., speaks during a news conference last year.
Rep. Brett Guthrie, R-Ky., speaks during a news conference last year. (Bill Clark/CQ Roll Call)

House Republicans overwhelmingly voted to pass a bill Tuesday evening to end the COVID-19 public health emergency declaration, despite warnings from the Biden administration that the measure would also terminate pandemic-related border restrictions that congressional Republicans support.

The bill would wipe out a declaration that Republicans say has led to overreach from the White House and stunted economic recovery from the pandemic. But tough-on-immigration Republicans want to keep the border restrictions known as Title 42 that were put in place in a stated effort to stem COVID-19 spread.

The government has used that Title 42 policy to turn away asylum seekers since the Trump administration put it in place nearly three years ago. On Monday, the Biden administration said the House bill, if enacted, would “immediately” end the Title 42 policy and “result in a substantial additional inflow of migrants at the Southwest border.”

The latest operative version of Title 42 order itself states explicitly — twice — that the policy would terminate with the end of the public health emergency declaration, immigration lawyers familiar with the policy said Tuesday.

Kentucky Republican Rep. Brett Guthrie, the lead sponsor of the bill, dubbed the “Pandemic is Over Act,” insisted on the House floor before the vote Tuesday that “nothing in my bill” would end the Title 42 policy.

“The Biden administration, and the Biden administration alone, controls Title 42,” Guthrie said.

The bill passed 220-210 along party lines. It is unlikely to be taken up in the Democrat-controlled Senate and signed into law, particularly since the Biden administration has announced that it plans to end the public health declaration on its own in May.

But the vote brought to the surface the party’s seemingly irreconcilable stances: the pandemic emergency is over, but the government should continue to expel migrants using a public health law that gives federal authorities the power to take actions to stop communicable diseases from entering the country.

Guthrie said Republicans are “not conceding that COVID–19 is over in this country,” but that they continue to support Title 42 because they “certainly don’t want it coming across our southern border.”

Fallout debate

The bill would, in its own terms, terminate the Department of Health and Human Services public health emergency declaration in 2020, following the outbreak of the COVID-19 virus.

The latest version of the Title 42 order, issued in August 2021, states that the border expulsion policy “shall remain effective” until the public health emergency expires, or until the Centers for Disease Control and Prevention determines it is no longer needed, “whichever occurs first.”

Aaron Reichlin-Melnick, policy counsel at the American Immigration Council, called that portion an “automatic termination trigger.”

“That’s pretty clear language,” Reichlin-Melnick said. Other immigration lawyers agreed.

But Republicans argue that the two orders are nonetheless legally distinct, and that termination of one does not influence the other.

Christopher Krepich, press secretary for Republicans on the Energy and Commerce Committee, said the laws behind the Title 42 order and the public health emergency “are separate authorities.”

Krepich pointed to language in the Title 42 order that states the CDC “retain[s] the authority to modify or terminate the Order, or its implementation, at any time as needed to protect public health.” That indicates that the administration could revise the Title 42 policy to separate it from the public health emergency if it wanted to, he said.

“Any decision to end Title 42 is not tied to the [public health emergency],” Krepich said. “President Biden alone will be responsible for the decision to end Title 42.”

RJ Hauman, head of government relations for the Federation for American Immigration Reform, which advocates for lower levels of immigration, circulated similar talking points around Capitol Hill on Tuesday.

The Title 42 order and the public health declaration are connected only “by an order and accompanying regulation promulgated by the Biden administration,” and “there is nothing in statute tying the end of Title 42 to the end of an emergency declaration,” Hauman wrote.

Future battles

Tuesday’s debate previews a future political showdown in May, when the Biden administration said it would end the public health declaration on its own, over how doing so will affect the controversial border policy.

Congressional Democrats used the vote Tuesday as an opportunity to hammer Republicans on their support for pandemic-related restrictions at the border, but not elsewhere.

“I think it really showcases that they’ve never thought about Title 42 as a health care provision,” Rep. Pramila Jayapal, the top Democrat on the Judiciary Committee’s immigration panel, said in a brief interview. “They’ve always thought about it as an immigration provision and it’s ridiculous because it’s only supposed to be used for health care emergencies.”

Rep. Veronica Escobar, a Democrat who presents a Texas border district and a member of the immigration subcommittee, said she did not believe her Republican colleagues understood “the unintended consequences” of their bill, “including potential consequences to Title 42, which they purport to support.”

Rep. Lou Correa, D-Calif., another member of the panel, also called out Republican lawmakers for voting to end the public health emergency while seeking to preserve the border restrictions.

“My colleagues, I would say to you, if you truly believe the pandemic is over, then you can’t say that Title 42 is still needed at the border because of health care crisis,” Correa said on the House floor before the vote.

Future court battles are also likely if the Biden administration continues to interpret the public health emergency as a necessary legal basis for Title 42.

The U.S. Court of Appeals for the 5th Circuit is currently considering a legal challenge out of Louisiana federal court by a group of Republican-led states to an earlier attempt by the Biden administration to rescind the Title 42 order.

If the Biden administration takes another stab at ending Title 42 by letting the public health emergency declaration expire, immigration lawyers said the states would need to update their litigation.

But potential challengers may face a tougher legal battle this time around.

“The remedy there seems a little bit odd because it has to be asking a court to just write out something that is part of the policy but keep the policy in effect. And that’s not really what courts do,” Reichlin-Melnick said.

But at the same time, Republican-led states challenging the Biden administration’s immigration actions have prevailed in court before. In two cases involving the Title 42 policy, states have secured orders from various courts that have kept the border expulsion directive in place.

“It’s my belief that when the CDC ends the public health emergency regarding COVID, that the legal basis for the Title 42 order should end,” Victoria Neilson, supervising attorney for the National Immigration Project of the National Lawyers Guild, said. “Whether or not that’s the end of litigation in Louisiana, I think we’re all going to have to wait and see.”

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