In his Wall Street Journal column William McGurn laments the departure of Title 42 (the provision that allows/requires the Border Patrol to turn asylum seekers away at the border), declaiming:
Ultimately, immigration is the responsibility of Congress, and the dysfunctions now on view daily at our southern border—legal, political, humanitarian—owe themselves to the repeated failure of our legislators to put a responsible immigration infrastructure in place.
But Congress doesn’t really lead. A president does. In his zeal to do the opposite of everything Donald Trump did, President Biden quickly transformed the border into a full-fledged crisis. One example of something he threw out while putting nothing in its place: the remain in Mexico policy, which sent asylum seekers who’d unlawfully entered the U.S. back to Mexico while they waited for their asylum hearings.
But Mr. Biden’s border difficulty isn’t that he can’t get his agenda through. His problem is he has no agenda. The administration’s argument to the Supreme Court was that it wants Title 42 gone—just not yet. The whole thing is a fraud, driven home to the American people every time they hear White House press secretary Karine Jean-Pierre cheerily assert that the border isn’t open when everyone in the world, especially the thousands crossing each day, can see that it is.
concluding:
Still, Mr. Biden styles himself a transformational president. His best shot here would be a bipartisan immigration deal that eluded both his Republican and Democratic predecessors. This would require identifying his priorities (e.g., resolving the legal status of the two million so-called Dreamers, people who were brought here as children), making Republicans an offer they would have a hard time refusing—and then going on to sell it to Congress and the American people.
Mr. Biden, alas, shows little sign he is capable of such presidential leadership. For one thing, he would have to offer Republicans something real. Border security was conspicuously absent from the immigration reform he unveiled at the outset of his term, reducing the proposal to cheap virtue-signaling.
Selling a deal would also challenge Mr. Biden. Recently he’s treated prime-time presidential addresses to the nation as opportunities to take swipes at his predecessor or characterize anyone who disagrees with him as morally defective. But were he for once able to rise above himself, he would win whatever the outcome: Either he would succeed in getting an immigration reform where his predecessors failed, or he would win politically by showing that Republicans are the obstacle to improving security at the border.
However, President Biden has been saved or, at least, granted a reprieve by the Supreme Court as the AP reports:
WASHINGTON (AP) — The Supreme Court is keeping pandemic-era limits on asylum in place for now, dashing hopes of migrants who have been fleeing violence and inequality in Latin America and elsewhere to reach the United States. Tuesday’s ruling preserves a major Trump-era policy that was scheduled to expire under a judge’s order on Dec. 21. The case will be argued in February and a stay imposed last week by Chief Justice John Roberts will remain in place until the justices make a decision. The limits, often known as Title 42 in reference to a 1944 public health law, were put in place under then-President Donald Trump at the beginning of the pandemic, but unwinding it has taken a torturous route through the courts.
That’s practically an ideal outcome for President Biden. He can blame Republicans, blame the Supreme Court, and point out the urgent need to re-elected him so he can appoint more progressive justices even as the limits remain in place which insulates him from accountability for an additional rush at the border had Title 42 been removed.
Despite a national bipartisan consensus on the fate of DACA beneficiaries, immigration law reform remains out of reach for rather simple reasons. Congressional progressives reject any reform which does not include EVERYONE, not just DACA beneficiaries, while Republicans reject anything that could be labeled as “amnesty”. It’s the new law of the excluded middle—the middle is excluded.
Before I leave this subject I wanted to remark on the claim you frequently encounter from Hamiltonians, libertarians, and progressives that we need more immigrants.
Imagine just for the sake of argument that there is a business that has built a successful business by buying quarters at a penny apiece. They can sell them at 20 cents a piece and make a tidy profit. When they can no longer buy quarters for a penny apiece and must actually pay 25 cents for them, it wrecks their business. No one will buy quarters for more than 25 cents apiece.
The problem is not that they need more quarters. Their problem is a flawed business model.
That’s pretty much the situation with fast food, hospitality, and construction. They’ve come to depend on a continuous, reliable flow of unskilled and low-skilled workers. Fast food is the most egregious. Fast food franchises came to prominence in the late 1950s-early 1960s which, coincidentally, was just when the oldest Baby Boomers were coming into the entry level workforce, a phenomenon that was essentially unprecedented. The franchises needed that stream of entry level workers. When our immigration laws were reformed in 1965 it coincidentally kept the spigot of entry level workers opened.
The problem is that what was completely workable for young entry level workers who didn’t expect those jobs to support families is not workable for immigrant workers who do expect to be able to support families. Add that the things on which additional workers depend (healthcare, education, housing, safety, etc.) are the very things whose costs have grown the most over the last 40 years and you have an unsustainable mess. The courts tell us we must provide those things for immigrants regardless of ability to pay, there’s no conceivable way they can pay for them on the wages they earn, and, to raise their wages so they could afford to pay you’d need to raise the prices of what they’re producing beyond the willingness to pay.
Those are the foundations of the impasse at which we find ourselves.
Don’t be surprised the Supreme Court rules for Biden in April, i.e. be careful what one wishes for.
It is noticeable trend that the supreme court is responding to criticism that it was deciding issues through the “shadow docket” (i.e. emergency stays) by putting cases on the “rocket docket” (expedited hearing of the standing issue and the merits).
In Feb, they are going to decide student loans, and in March, title 42.
Both cases have similarities. They are both “rocket docket” cases. A major legal dispute is whether States have standing to be involved in the cases. A second issue is both involve “emergency” powers from the pandemic.
My rough guess as to the Supreme Court thinking. (1) States have standing to be involved in the cases. (2) in both cases, the merits is decided by the fact the pandemic is over — so HEROS cannot be used for loan forgiveness, and Title 42 cannot be used.
The hint is Gorsuch made clear he thinks the current use of Title 42 is abuse of an emergency.
To me, this was a bizarre and wrongly-decided case. The SCOTUS really is starting to act like a legislature – especially on APA-related cases – they ought to be punting on this stuff and forcing Congress and the Executive to figure it out.
I find Ilya Somin’s view on this the most compelling I’ve read so far:
https://reason.com/volokh/2022/12/28/supreme-court-issues-dubious-ruling-that-perpetuates-title-42-public-health-expulsions-of-migrants/
CuriousOnlooker makes some good points. The Justices are always aware of other issues out there. I see a few:
1. Roberts strongly disagrees with giving states standing to object to federal policy, in particular the Massachusetts v. EPA case involving climate change. I don’t know what the majority believes, but reversal or limiting that case may be in line.
2. Gorsuch thought the Pandemic excuse expired around the time the vaccines were first made available. That Jackson joined his dissent at this time is possibly the most interesting part of all, and doesn’t bode well for student loan case, except that none of the conservatives joined Gorsuch either and there are more of them.
3. I think there is a conflict between court decisions in Arizona and Louisiana. The Louisiana case ruled that Biden could not simply end the Title 42 order without complying with the notice and comment rulemaking under the Administrative Procedures Act. The Arizona court ruled that the Title 42 order itself violated that Act. The SCOTUS may simply be giving the Administration time to withdraw the order as the Louisiana Court dictated, rendering both cases moot shortly. The boring take.
@Andy, I’m not a fan of Somin; he’s increasingly writing about policy, not law, but probably a crowd favorite at Reason. I would like to criticize his piece for claiming that a Texas Court did something that a Louisiana court did (he links to a Texas newspaper story about the Louisiana court), but I mistakenly attributed a D.C. court decision to an Arizona court.
Overall, the APA was weaponized by the system against Trump and now everybody has access to the weapon. Perhaps some more exceptions need to be written into the APA, but that doesn’t appear likely in divided government.
Added: Similarly State standing was expanded in Massachusetts v. EPA and now Republican states are deploying it.
“Their problem is a flawed business model. That’s pretty much the situation with fast food, hospitality, and construction.”
And another obvious one: agriculture.
That the business model must change is true by definition. However, I think it should be noted that intervention in the markets by government has disrupted traditional business models, and does not lead to the best outcomes. eg Subsidies to not work. Offshoots of covid policy. Regulatory issues. It need not be so, and costs are incurred. And, of course, promotion of immigration for perceived political gain disrupts labor and capital market reactions to wage pressures or normalization.
I think it must be recognized that higher wages are not a pure good thing; it can render some businesses obsolete, for the consumer will only pay so much, and the capital will only invest at a certain return. But it shouldn’t be that draconian. It should manifest in quantity demanded and/or innovation. A market will figure that out very quickly. Government will only gum up the works.
Fast food is currently adapting to wage pressures, through higher wages and price pass throughs, lower service levels and automation. Similarly, yours truly is an investor in a labor eliminating (not reducing) capital equipment manufacturer whose product processes metal for commercial and personal home roof construction. The labor was not available, or not available at a workable wage. Equipment is replacing labor. Despite the fall off in housing the backlog is at record levels.