Brace Yourselves: The Record-Breaking Border Crisis Will Probably Be Even Worse in 2023

December 27, 2022

By Jason Hopkins

Despite more border arrests this year than ever recorded in United States’ history, the recent Supreme Court delay to end the Trump-era Title 42 declaration – which enabled the rapid removal of illegal border jumpers, in order to protect public health – will likely set the stage for even greater frontier chaos in the new year.

On November 15 of last year, U.S. District Judge Emmet Sullivan permitted the Biden Administration to announce the impending end of special, pandemic-related measures put in place along the border pursuant to Title 42. The term “Title 42” refers to the section of the United States Code where the Public Health Service Act of 1944 (PHSA) is set forth.

The PHSA was aimed at checking the spread of communicable disease in the event of a pandemic. It confers special authority on the Director of the Centers for Disease Control to prohibit “the introduction of persons and property” into the United States that might worsen a public health crisis.

That authority includes the removal of aliens whose presence in the U.S. might result in the continued propagation of a pandemic. Accordingly, pursuant to the Trump Administration’s Title 42 declaration U.S. Customs and Border Protection (CBP) was able to administratively remove aliens apprehended near the Southern border without a hearing before an Immigration Judge.  

Unsurprisingly, anti-borders activists cheered Judge Sullivan’s directive. While the Trump administration clearly stated that Title 42 authority was being used to help stop the spread of COVID-19, illegal alien advocates complained that the policy was a smokescreen that would allow the rapid removal of “migrants.” Of course, critics of Team Trump’s Title 42 declaration appeared to be unaware of the fact that foreign nationals have absolutely no right to enter the United States, or to remain here, without authorization from the U.S. government.  

Per the District Court order, the White House was to cease summarily expelling aliens  pursuant to the Title 42 declaration as early as December 21. The U.S. Supreme Court has put that ruling on hold for now. However, it is unclear why the Biden administration – which insists that we are still in the midst of some type of COVID-19 emergency – is in a hurry to encourage even more people to violate American immigration laws.

Nearly 2.4 million migrant arrests have already been made this year on the border with Mexico – pushing our country’s immigration enforcement resources to the brink of collapse. These record numbers are entirely the result of foreigners who wish to travel to the U.S. believing that President Biden has opened our borders.

And the situation is only going to get worse should Title 42 be completely rescinded – because those outside the U.S. who want to be inside will inevitably interpret the rescission as a renewed invitation to make it inside the U.S. and wait for an amnesty. Department of Homeland Security officials told the media in March that they expect as many as 18,000 migrants per day at the border.

In fact, the situation at the U.S.-Mexico border is so unstable that even prominent members of the Democratic Party have begun sounding the alarm. On November 18, Democrat Sens. Kyrsten Sinema and Mark Kelly of Arizona, Jon Tester of Montana, and Maggie Hassan of New Hampshire sent a letter addressed to DHS Secretary Alejandro Mayorkas stating, “We are writing to express our deep concerns regarding the sudden impact that [Sullivan’s ruling] could have on border communities, nongovernmental organizations (NGOs), [and] the men and women of the Department of Homeland Security.”

The senators went on to say that unprecedented number of encounters between CBP and illegal aliens have created “untenable” situations and demanded answers as to how DHS will handle crisis. Ultimately, they noted, “This is not safe, and creates a dangerous situation for migrants and communities.”

Title 42 was, ultimately, a special measure designed to aid in protecting the U.S. from a pandemic. It was never intended to last forever. However, in a sea of devastatingly misguided immigration policy decisions, it represented an anchor of sanity that permitted the Border Patrol to continue doing its job.  

In reality, there are a number of provisions found within the Immigration and Nationality Act that would allow the president to declare a border crisis, thereby permitting CBP to exercise powers similar to those accorded to it under the PHSA. But the Biden administration – with its radically pro migration policies – is unlikely to employ those tools.

As a result, the virtual anarchy that currently prevails along our southern border is likely to prevail well into the future.

Jason Hopkins serves as Investigations Manager at the Immigration Reform Law Institute, a public interest law firm working to defend the rights and interests of the American people from the negative effects of mass migration.

Also published at American Thinker, December 27, 2022.