WASHINGTON — The drawn-out saga of Title 42, the set of emergency powers that allows border officials to quickly turn away migrants, has been chaotic at the U.S.-Mexico border. In Washington, it hasn’t unfolded much better.
The Supreme Court is weighing whether to keep the powers in place following months of legal battles brought on by Republican-led states after President Joe Biden’s administration moved to end the Trump-era policy, which was set to lapse Dec. 21 until the court agreed to take it up.
The administration has yet to lay out any systemic changes to manage an expected surge of migrants if the restrictions end. And a bipartisan immigration bill in Congress has been buried just as Republicans are set to take control of the House.
Basic questions — for example, should more immigrants be allowed in, or fewer? — are unanswered as the asylum system continues to strain under increasing numbers of migrants.
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The Biden administration has been reluctant to take hard-line measures that would resemble those of his predecessor. That’s resulted in a barrage of criticism from Republicans who are using Title 42 to hammer the president as ineffective on border security. The rules were introduced as an emergency health measure to prevent the spread of COVID-19.
“The Democrats have lost the messaging war on this,” said Charles Foster, a longtime immigration attorney in Texas who served as an immigration policy adviser to Republican George W. Bush but now considers himself independent. “The tragedy is, Democrats more than anyone should focus on this issue, because unless and until it can be fixed, and the perception changes, we’ll get nothing ever through Congress.”
Migrants gather Dec. 20 at a crossing into El Paso, Texas, as seen from Ciudad Juarez, Mexico.
Anyone who comes to the U.S. has the right to ask for asylum, but laws are narrow on who actually gets it. Under Biden, migrants arriving at the border are often let into the country and allowed to work while their cases progress. That process takes years because of a 2-million-case backlog in the immigration court system that was exacerbated by Trump-era rules.
Title 42 allows border officials to deny people the right to seek asylum, and they have done so 2.5 million times since March 2020. The emergency health authority has been applied disproportionately to those from countries that Mexico agreed to take back: Guatemala, Honduras, El Salvador and more recently Venezuela, in addition to Mexico.
“There is not going to be a good moment, politically speaking,” to end the restrictions, said Jorge Loweree of the American Immigration Council. The administration should have been preparing all along to create a better system for asylum seekers, Loweree said.
“It has allowed the other side to weaponize this issue,” he said. “And the longer it remains in place, the longer the weapon will remain effective.”
The authority was first invoked at the height of the COVID-19 pandemic by President Donald Trump, whose immigration policies were aimed at keeping out as many migrants as possible. He also drastically reduced the number of refugees allowed into the country, added restrictions to the asylum process that clogged the system and kept migrants in detention, and reduced legal immigration pathways.
Biden has been working to expand legal immigration and has undone some of the most restrictive Trump policies. But the administration kept the Title 42 policy in place until this spring, and even expanded its use after announcing it would end.
Republicans say there will be even more chaos if it’s lifted. But even with Title 42 in place, border officials have been encountering more migrants than ever before. In the budget year that ended Sept. 30, migrants were stopped 2.38 million times, up 37% from 1.73 million times the year before.
“I don’t know why it’s taking them so long to get serious about deterrence,” Republican Sen. Shelley Moore Capito of West Virginia said of the Biden administration. Capito is an incoming member of the Senate Republican leadership and the top GOP senator on the committee that oversees money for Homeland Security, the federal agency that manages border security.
Migrants receive toys at an entry point Dec. 20 in Tijuana, Mexico.
Border officials have braced for an expected increase. Homeland Security officials have reported faster processing for migrants in custody on the border, more temporary detention tents, staffing increases and more criminal prosecutions of smugglers.
They say progress has been made on a plan announced in April but large-scale changes are needed. Meanwhile, the Senate’s Republican leadership killed a bipartisan bill that would have addressed some of these issues.
The split isn’t just inside Congress. One in 3 U.S. adults believes an effort is underway to replace native-born Americans with immigrants for electoral gains, according to an AP-NORC survey.
Democrats say they want policies that reflect America’s reputation as a haven for those fleeing persecution. But they can’t agree on what that looks like.
Biden and his aides have said they are working to divert migrants coming out of Central America and helping provide aid to poorer nations that are bleeding people headed for the U.S. But the president is limited without action from Congress.
Photos: Scenes from the US-Mexico border as Title 42 decision looms
Migrants eat and wait for help while camping on a street in downtown El Paso, Texas, Sunday, Dec. 18, 2022. Texas border cities were preparing Sunday for a surge of as many as 5,000 new migrants a day across the U.S.-Mexico border as pandemic-era immigration restrictions expire this week, setting in motion plans for providing emergency housing, food and other essentials. (AP Photo/Andres Leighton)
Two young migrants from Venezuela share a coloring book while waiting for help in downtown El Paso, Texas, Sunday, Dec. 18, 2022. Texas border cities were preparing Sunday for a surge of as many as 5,000 new migrants a day across the U.S.-Mexico border as pandemic-era immigration restrictions expire this week, setting in motion plans for providing emergency housing, food and other essentials. (AP Photo/Andres Leighton)
A migrant covers himself with blankets while waiting for help in downtown El Paso, Texas, Sunday, Dec. 18, 2022. Texas border cities were preparing Sunday for a surge of as many as 5,000 new migrants a day across the U.S.-Mexico border as pandemic-era immigration restrictions expire this week, setting in motion plans for providing emergency housing, food and other essentials. (AP Photo/Andres Leighton)
Mexican migrant Carmen Aros and four of her five daughters wait for news before attempting to cross the border into the U.S while staying at a church-run shelter in Ciudad Juarez, Mexico, Sunday, Dec. 18, 2022. Texas border cities were preparing Sunday for a surge of as many as 5,000 new migrants a day across the U.S.-Mexico border as pandemic-era immigration restrictions expire this week, setting in motion plans for providing emergency housing, food and other essentials. (AP Photo/Andres Leighton)
Migrants wait near the U.S.-Mexico border in Ciudad Juarez, Mexico, Monday, Dec. 19, 2022. Pandemic-era immigration restrictions in the U.S. known as Title 42 are set to expire on Dec. 21. (AP Photo/Christian Chavez)
Migrants stand near the U.S.-Mexico border in Ciudad Juarez, Mexico, Monday, Dec. 19, 2022. Pandemic-era immigration restrictions in the U.S. known as Title 42 are set to expire on Dec. 21. (AP Photo/Christian Chavez)
Migrants look towards the U.S.-Mexico border from Ciudad Juarez, Mexico, Monday, Dec. 19, 2022. Pandemic-era immigration restrictions in the U.S. known as Title 42 are set to expire on Dec. 21. (AP Photo/Christian Chavez)
Venezuelan migrant Jonathan Colina mops the floor of a government-run shelter in Ciudad Juarez, Mexico, Sunday, Dec. 18, 2022. Texas border cities were preparing Sunday for a surge of as many as 5,000 new migrants a day across the U.S.-Mexico border as pandemic-era immigration restrictions expire this week, setting in motion plans for providing emergency housing, food and other essentials. (AP Photo/Andres Leighton)
Migrants cross the U.S.-Mexico border from Ciudad Juarez, Mexico, and turn themselves into U.S. Border Patrol agents, Monday, Dec. 19, 2022. Pandemic-era immigration restrictions in the U.S. known as Title 42 are set to expire on Dec. 21. (AP Photo/Christian Chavez)
Two migrants, who met earlier on their way to the U.S., celebrate after seeing each other in downtown El Paso, Texas, Sunday, Dec. 18, 2022. Texas border cities were preparing Sunday for a surge of as many as 5,000 new migrants a day across the U.S.-Mexico border as pandemic-era immigration restrictions expire this week, setting in motion plans for providing emergency housing, food and other essentials. (AP Photo/Andres Leighton)
Migrants form a line to receive warm food donated by residents in downtown El Paso, Texas, Sunday, Dec. 18, 2022. Texas border cities were preparing Sunday for a surge of as many as 5,000 new migrants a day across the U.S.-Mexico border as pandemic-era immigration restrictions expire this week, setting in motion plans for providing emergency housing, food and other essentials. (AP Photo/Andres Leighton)
Migrants from El Salvador pose for a photo while waiting for help on a street in downtown El Paso, Texas, Sunday, Dec. 18, 2022. Texas border cities were preparing Sunday for a surge of as many as 5,000 new migrants a day across the U.S.-Mexico border as pandemic-era immigration restrictions expire this week, setting in motion plans for providing emergency housing, food and other essentials. (AP Photo/Andres Leighton)
A migrant family from Venezuela camps on a street in downtown El Paso, Texas, Sunday, Dec. 18, 2022. Texas border cities were preparing Sunday for a surge of as many as 5,000 new migrants a day across the U.S.-Mexico border as pandemic-era immigration restrictions expire this week, setting in motion plans for providing emergency housing, food and other essentials. (AP Photo/Andres Leighton)
A resident distributes homemade sandwiches to migrants camping on a street in downtown El Paso, Texas, Sunday, Dec. 18, 2022. Texas border cities were preparing Sunday for a surge of as many as 5,000 new migrants a day across the U.S.-Mexico border as pandemic-era immigration restrictions expire this week, setting in motion plans for providing emergency housing, food and other essentials. (AP Photo/Andres Leighton)
A migrant unfolds a donated blanket to prepare to spend another day on a street in downtown El Paso, Texas, Sunday, Dec. 18, 2022. Texas border cities were preparing Sunday for a surge of as many as 5,000 new migrants a day across the U.S.-Mexico border as pandemic-era immigration restrictions expire this week, setting in motion plans for providing emergency housing, food and other essentials. (AP Photo/Andres Leighton)
A migrant from El Salvador covers himself from a light winter drizzle while camping on a street in downtown El Paso, Texas, Sunday, Dec. 18, 2022. Texas border cities were preparing Sunday for a surge of as many as 5,000 new migrants a day across the U.S.-Mexico border as pandemic-era immigration restrictions expire this week, setting in motion plans for providing emergency housing, food and other essentials. (AP Photo/Andres Leighton)
A migrant from Ecuador crosses the Rio Grande toward El Paso, Texas, from Ciudad Juarez, Mexico, Sunday, Dec. 18, 2022. Texas border cities were preparing Sunday for a surge of as many as 5,000 new migrants a day across the U.S.-Mexico border as pandemic-era immigration restrictions expire this week, setting in motion plans for providing emergency housing, food and other essentials. (AP Photo/Andres Leighton)
A migrant walks between rows of bunk beds at a government run shelter in Ciudad Juarez, Mexico, Sunday, Dec. 18, 2022. Texas border cities were preparing Sunday for a surge of as many as 5,000 new migrants a day across the U.S.-Mexico border as pandemic-era immigration restrictions expire this week, setting in motion plans for providing emergency housing, food and other essentials. (AP Photo/Andres Leighton)
Venezuelan migrant Gerardo Viloria celebrates a goal by Argentina while watching the TV broadcast of the FIFA World Cup final game at a government-run shelter in Ciudad Juarez, Mexico, Sunday, Dec. 18, 2022. Texas border cities were preparing Sunday for a surge of as many as 5,000 new migrants a day across the U.S.-Mexico border as pandemic-era immigration restrictions expire this week, setting in motion plans for providing emergency housing, food and other essentials. (AP Photo/Andres Leighton)
Guatemalan migrant Maudelina Geronimo feeds her three-year-old daughter Lisbeth at a government run shelter in Ciudad Juarez, Mexico, Sunday, Dec. 18, 2022. Texas border cities were preparing Sunday for a surge of as many as 5,000 new migrants a day across the U.S.-Mexico border as pandemic-era immigration restrictions expire this week, setting in motion plans for providing emergency housing, food and other essentials. (AP Photo/Andres Leighton)
Young Mexican migrants play soccer at a church-run shelter in Ciudad Juarez, Mexico, Sunday, Dec. 18, 2022. Texas border cities were preparing Sunday for a surge of as many as 5,000 new migrants a day across the U.S.-Mexico border as pandemic-era immigration restrictions expire this week, setting in motion plans for providing emergency housing, food and other essentials. (AP Photo/Andres Leighton)
A small group of migrants discuss whether or not to cross the Rio Grande from Ciudad Juarez, Mexico and surrender to the Border Patrol in El Paso, Texas, Sunday, Dec. 18, 2022. Texas border cities were preparing Sunday for a surge of as many as 5,000 new migrants a day across the U.S.-Mexico border as pandemic-era immigration restrictions expire this week, setting in motion plans for providing emergency housing, food and other essentials. (AP Photo/Andres Leighton)
