Why Supreme Court’s Title 42 ruling could be a gift for both parties
AUSTIN — With the Supreme Court ruling keeping in place the controversial immigration policy known as Title 42 at least into next year, the justices gave the Democratic Biden administration and a divided Congress the gift of time to tackle perhaps the most divisive issue on the political landscape.
In its split ruling, the high court said it would hold a hearing in February on the merits of the Title 42 lawsuit filed by several Republican state attorneys general. That means the final decision might not come down until summer or later. At least in theory, both sides have the opportunity to hammer out what each side says it wants:
A bipartisan solution to a growing crisis that is sending tens of thousands of immigrants across the nation’s southern border without legal authorization to communities where resources to provide basic care have long been stretched to the breaking point.
“What’s happening at our southern border is a humanitarian crisis,” Democratic U.S. Rep. Henry Cuellar of Laredo said in a tweet string after Tuesday’s ruling was announced.
One of Congress’ most conservative Democrats who has not spared the Biden White House of pointed criticism for its handling of immigration and border security, Cuellar promised that he would work with his Republican fellow border Congressman Tony Gonzales and members of both parties in the Senate to begin “delivering bipartisan solutions to address this situation.”
Cuellar, an 18-year congressional veteran who handily won reelection to a 10th term in November, was not alone in promising a two-party solution aimed at slowing the flow of immigrants and providing states and communities on the front lines with more resources.
Gonzales, who in January will begin his second term representing a vast stretch along the Texas border from San Antonio almost to El Paso, called the high court’s ruling a much-needed “Band-Aid” for the short term.
But when the GOP assumes control of the U.S. House, immigration reform will be front and center on the agenda, Gonzales said.
“We will take a Band-Aid at this point,” he told Fox News late Tuesday. “It’s not perfect, but it is at least a Band-Aid that needs to go forward. Now we look at House Republicans having the majority, and what does a win in the majority look like? I think part of that is making sure that the administration is held accountable and also finding ways for solutions.”
Gonzales and Cuellar, along with Republican U.S. Sen. John Cornyn of Texas and Democratic Sen. Joe Manchin of West Virginia, offered several pieces of immigration legislation and policy proposals during the soon-to-end present session of Congress. And in unison, they have called on the Biden administration to drop its opposition to ending Title 42 long before the court acted on Tuesday.
More:El Paso extends emergency declaration as humanitarian border migrant crisis continues
Title 42 is part of a public health law dating to the World War II era that was resurrected during the Trump administration as a means of containing the spread of COVID-19. It allows federal authorities to rapidly expel migrants and, in some cases, suspend the right to seek asylum under U.S. law and international treaty.
In April, the Centers for Disease Control and Prevention rescinded the policy as no longer necessary as the COVID threat had diminished substantially. However, many Republican leaders, including Texas Gov. Greg Abbott and Attorney General Ken Paxton, have urged that it remain in force because without the policy the southern border would be swamped with asylum seekers and others looking to gain entry into the United States.
Indeed, as the Dec. 21 planned end to Title 42 approached, thousands of migrants amassed along the border, and in many cases entered the United States, further straining border communities. On Dec. 19, the same day Chief Justice John Roberts ordered the policy to remain ahead of Tuesday’s ruling, Mayor Oscar Leeser of El Paso declared a state of emergency in his city. That declaration was extended the next week by the El Paso City Council and remains in effect.
More:Gov. Abbott pushes back on Christmas migrant bus criticism as nation awaits Title 42 ruling
But even before Tuesday’s court ruling, calls for a bipartisan immigration solution echoed in Congress.
“This is not about public health anymore,” Illinois Sen. Dick Durbin, part of the leadership team in the Democratic-controlled Senate, said just before Christmas. “It is our excuse for not tackling the very real challenge in coming up with a border policy on a bipartisan basis.”
But even amid calls for bipartisan immigration reform, partisan rancor and rhetoric continue apace. Cornyn, in a statement, called the Biden administration’s immigration policies “extremely weak.”
“The Biden Administration has tried to have it both ways on Title 42 by arguing for it to expire while also noting the catastrophic effects its expiration will have on the crisis at our southern border,” he said.
Abbott, who has taken an in-your-face approach on immigration matters — including busing asylum seekers to Washington, New York, Chicago and Philadelphia — made no mention of Congress’ role in immigration policy.
More:Gov. Abbott pushes back on Christmas migrant bus criticism as nation awaits Title 42 ruling
“It’s long past time for Biden to secure the border,” the governor tweeted in response to the Supreme Court ruling.
The leader of the League of United Latin American Citizens, which is generally supportive of Democrats in office, both called for bipartisanship and laid the blame for the crisis at the border on both parties.
“We hold the Republican Governors, Congress, and the Biden Administration accountable for the state of affairs along our southern border,” LULAC National President Domingo Garcia, a Democrat and former member of the Texas House, said in a statement.
“Both parties must work together to stop illegal crossings by passing a bipartisan immigration bill that allows legal migration,” he added. “Elected officials must secure the border by closing immigration law loopholes.”
Any solution should include what Garcia called “a Marshall Plan-like approach that deals with the underlying issues forcing people to flee Honduras, Nicaragua, and El Salvador.”
Andrew Arthur, resident fellow in law and policy for the conservative Center for Immigration Studies, said even with the talk about bipartisanship, both sides appear to have taken entrenched positions that make compromise a challenge.
Put simply, Republicans want any measure to be enforcement-centered and Democrats are pushing to establish a generous path to citizenship for immigrants already in the country. Ending the impasse might depend on what the 2024 political landscape looks like two years out, he said.
“If (Democratic senators from swing states) are looking like immigration is hurting them, I think you’ll see (Senate Majority Leader) Chuck Schumer push Biden to take action,” said Arthur, whose organization’s slogan is “Low-immigration, Pro-immigrant.”
Brandon Rottinghaus, a political science professor at the University of Houston, said Republicans probably have the political advantage if no compromise is reached.
“This issue being in limbo probably benefits Republicans more,” he said. “Not only can they blame the Biden administration for some of the failures, but they’re also able to use the immigration issue as a political wedge.”
John C. Moritz covers Texas government and politics for the USA Today Network in Austin. Contact him at [email protected] and follow him on Twitter @JohnnieMo.
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