Title 42 migrant expulsions will finally come to an end. And good riddance. A bad COVID-era policy adopted by the Trump administration and extended by the Biden administration, Title 42 upended a longstanding process outlined in immigration law and allowed border agents to quickly eject refuge-seeking migrants without allowing them to apply for asylum in the U.S.
The Title 42 order applied to people entering the country from Canada or Mexico, though expulsions overwhelmingly took place at the U.S.-Mexico border. Around 2.7 million migrants—largely from Mexico and Central America—were expelled under this order and sent back to Mexico or their home countries, under the auspice of protecting Americans from COVID-19.
"The use of Title 42 caused great suffering for little or no benefit," writes George Mason University law professor Ilya Somin at The Volokh Conspiracy. "It was also an egregious example of the abuse of 'public health' emergency powers for unrelated policy goals" and "may have set a dangerous precedent for its future invocation."
But don't expect U.S. border policy to get much better for those seeking refuge here. New plans pushed by President Joe Biden are hardly what one might call migrant-friendly: The plans slowly expand tools for would-be immigrants to apply to come here legally (with no guarantees, of course) while making it much more difficult for those who actually try to cross the border to get legal status.
To the former point, Biden says the U.S. will set up more Regional Processing Centers where migrants can apply for legal immigration status in the U.S., Canada, or Spain from within Latin America, rather than simply show up at the U.S-Mexico border.
Regional Processing Centers are "designed to cut smugglers out of the equation by giving people access to protection and legal pathways earlier in their migration journey, and eventually before they cross international lines at all," notes Andrew Selee at the Migration Policy Institute. However, "little is known as yet about how these centers will function in practice," and "they will only exist in embryonic form, if at all, by the time Title 42 ends."
Meanwhile, Biden has enacted new restrictions for asylum-seekers as well. These include "the adoption of stricter asylum rules that make it harder to get protection in the United States for those who have crossed the border unlawfully," notes The New York Times:
Under the old system, which critics called "catch and release," many migrants who reached the United States would ask for asylum and be allowed to remain in the country until their case was resolved in immigration court.
The Biden administration's new rule presumes that those who do not use lawful pathways to enter the United States are ineligible for asylum when they show up at the border. Migrants at the border can rebut this presumption only if they sought asylum or protection in another country through which they traveled en route to the United States and were denied safe haven there, or if they can demonstrate exceptional circumstances, such as a medical emergency.
They may have a phone interview from a border holding facility with an asylum officer, and can be quickly deported if they are found ineligible to apply. Unlike under Title 42, they will receive a permanent mark on their record that bans them from entering the United States for five years, and could face criminal charges.
Putting aside the moral or political merits (or lack thereof) of such restrictions for a moment, it's worth focusing on how likely these plans are to actually accomplish their goals.
Considering how abysmally Title 42 worked at curbing illegal border crossings, it's not very likely that these policies will work either, suggests David J. Bier at the Cato Institute:
Title 42 has failed on its own terms. Crossings have increased. Illegal crossings have increased. Evasions of Border Patrol have increased. The outcomes speak for themselves. Unfortunately, the president's plan now involves largely recreating those failed conditions by banning asylum under different statutory authority and deporting more people to Mexico where they will have little option but to attempt to cross illegally again.
See Bier's full post for lots of data on Title 42's failure to stem unauthorized border crossings.
The Biden administration "has done more than any since Eisenhower to increase legal migration to prevent illegal immigration, but much more can and should be done," concludes Bier. "Unfortunately, the main focus now seems to be perpetuating the status quo through deporting people to Mexico once Title 42 ends rather than building on the successful legal migration programs."
In general, our conversation around asylum policy should be expanded, suggests Somin. "The public debate over asylum policy ignores the fact that even the most generous possible version of current policy is constrained by very narrow criteria for eligibility that exclude many migrants fleeing horrific violence and oppression," he points out.
For now, Biden has sent 1,500 troops to the border to address what's expected to be an influx of asylum-seekers who (falsely) believe that Title 42 expiring as of 11:59 p.m. last night betters their chances of being granted asylum here after crossing the border illegally.
FREE MINDS
Some school districts are beginning to file damage lawsuits against social media companies for not childproofing the Internet. It's a truly awful idea that private law firms have cooked up and sold to the school districts, I write at @Ricochet https://t.co/AzYdDF21vo
— Walter Olson (@walterolson) May 9, 2023
FREE MARKETS
Government's latest plan to kill cryptocurrency. A proposed new excise tax on cryptocurrency mining would drive crypto miners out of the United States. The Digital Asset Mining Energy (DAME) excise tax would add 30 percent to their electricity costs, according to CoinDesk. "The tax sets an extremely dangerous precedent, as it singles out an industry that lawfully purchases electricity, holding the electricity buyers responsible for the carbon emissions of the underlying generation," writes CoinDesk columnist Nic Carter:
This makes no sense. It's not bitcoin miners' responsibility to decarbonize the electricity they purchase – that falls to the architects of the grid. If the Biden admin can't get the grid to be sufficiently green, it should focus on that rather than punishing an industry that buys less than a single percentage point of the electricity produced in the U.S. in a given year. Additionally, the proposed tax may not even be legal. Appellate attorney W. Aaron Daniel has argued convincingly that Bitcoin mining is protected speech under the First Amendment, and that a mining ban singles miners out unfairly, as New York State has done already.
Other industries don't get held responsible for grid emissions this way, just politically disfavored ones like Bitcoin miners. If this precedent is set, any politically disfavored energy consumer will potentially be in the crosshairs. I could easily imagine the next DAME tax targeting data-centers running AI models that aren't sufficiently woke, or data centers running servers for uncensored social media. And in a future, possible Trump Administration, who's to say he wouldn't use a similar approach to cut off the electricity supply of abortion clinics, leftist universities, Disney World, the NY Times, or any other industries or corporations he dislikes? In this country, resources like electricity should be available to all, not used as a political cudgel to attack specific industries.
While setting a dangerous precedent, the tax would likely do little to realistically accomplish its goals, which include raising $3.5 billion over 10 years, getting bitcoin miners to offset the costs of their emissions, and reducing bitcoin mining overall. In actuality, it would simply send most bitcoin mining out of the U.S.—"pushing miners out of the (relatively low-carbon intensity) U.S., into dirtier jurisdictions," as Carter points out. Meanwhile, "it would directly empower America's adversaries, like Russia, China, Venezuela, and Iran—by making (state-sanctioned) mining operations more profitable there" while doing nothing to cut back on worldwide levels of mining.
QUICK HITS
• The Metaverse is dead.
• "The U.S. Department of Justice is intervening on behalf of a Christian charitable group in Orange County that's been threatened with fines and even criminal penalties for using their property to hand out snacks and coffee to the homeless," notes Reason's Christian Britschgi.
• California's S.B. 287 would make social "companies liable for using designs, algorithms or features that they know could lead minors to purchase fentanyl, become addicted to their platforms, or cause eating disorders, suicide and other forms of self-harm," reports The Sacramento Bee.
• A new lawsuit from the Mackinac Center for Public Policy seeks to end the pause on student loan payments.
• Moderator Mayhem, a new game developed by Techdirt in partnership with the pro-entrepreneurship nonprofit Engine, "lets you see how good a job you would do as a front line content moderator for a growing technology company that hosts user-generated content."
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