On Wednesday, Governor Greg Abbott made the same pilgrimage he’s made dozens of times in the past two years, traveling from Austin down to the Rio Grande Valley to stir fears about unrestricted immigration. Abbott had a new occasion to rail against President Joe Biden after White House officials announced last week that the administration would end its use of an emergency provision called Title 42. Like the Trump administration, Biden has used the federal statute—which gives the executive branch the power to close the border during a public health crisis such as the coronavirus pandemic—to expel millions of migrants without a deportation trial. The governor for months has decried what he calls Biden’s “catastrophic open border policies.” Now, in Weslaco, twenty minutes east of McAllen, he sought to raise the level of alarm even higher and explain how Biden’s supposedly open borders will somehow get even more open.
Abbott declared that Texas would “bus” migrants who are awaiting deportation trials to Washington, D.C., in a fleet of charter vehicles. (Hours after that statement, a press release from the governor’s office clarified that any migrants boarding the buses would be doing so voluntarily—perhaps because immigration attorneys say busing anyone across state lines against his or her will could constitute felony kidnapping.) Abbott then declared that when Title 42 officially gets rolled back later this month, he will instruct the Texas Department of Public Safety to perform “enhanced safety inspections of vehicles as they cross” into Texas from Mexico. That means the hundreds of thousands of freight trucks that cross the border every day will wait in longer lines, and consumers in Texas and elsewhere will face even longer delivery times for everything from avocados to auto parts as the governor clogs a critical link in an already strained supply chain. Abbott acknowledged that traffic would be “dramatically slowed,” but he assured listeners that that’s part of the cost of border security—beyond the $2 billion a year in state taxpayer funds he’s already spending to scatter police and National Guard units at various points along the 1,241-mile frontier.
Perhaps because Title 42 is so poorly understood, Abbott has been able to portray its rollback as tantamount to Biden throwing open the gates at the border and letting everyone cross. If that were really what Biden is doing, it might make sense for Abbott to have DPS troopers increase inspection of every vehicle. But independent experts say there’s no reason to believe ending Title 42 restrictions will lead to an increase in human smuggling. In fact, there’s every indication that leaving Title 42 in place would increase incentives for smugglers and the migrants who pay them.
A quick refresher: In March of 2020, the Trump administration invoked Title 42 as the pandemic first hit the U.S, and quickly accomplished a goal the administration (in particular senior adviser Stephen Miller) had long pursued—the effective end of the asylum process, in contravention of federal law that protects the rights of those fleeing persecution and violence in their home countries. While American citizens and others could freely cross to Mexico and back (for instance, Texans taking winter vacations in Cancún), the U.S. government began refusing entry to those trying to claim asylum, purportedly to contain the spread of the coronavirus.
Prior to Title 42, the Refugee Act of 1980, passed by a unanimous vote in the Senate and signed by President Jimmy Carter, clearly outlined the U.S.’s human rights obligations to asylum-seekers fleeing persecution. If someone arrives in the U.S. and says she’s escaping danger, officials are obligated to hear her arguments and evidence. First, an asylum officer will interview her to make sure her claim isn’t frivolous. If she passes this “credible fear” interview, she’ll then need to present proof in court to convince an immigration judge that her asylum claim is valid. If she succeeds, she’s allowed to stay in the country with permanent legal status and a path to citizenship. If not, she’s deported.
What Title 42 does is skip all those steps: the right to seek asylum has been discarded. Since March 2020, millions of asylum seekers arriving on the border have been immediately “expelled” (the term “deported” is reserved for those who’ve had a trial). When Biden took office, he decided to keep the policy in place, despite the broad expectation that he would roll it back after vaccines became widely available. Biden has since used the policy to expel more than 1.5 million migrants and would-be asylum-seekers without trial.
Notably, expelling migrants under Title 42 has increased human trafficking. Because there has been no legal path to asylum, the migrants arriving on the U.S. border who are the most desperate to escape their homelands have had a stronger incentive to do so undetected. In Tijuana in March 2021, I spoke to multiple asylum-seekers who had tried to cross officially, got expelled, and then tried to cross again undetected. When I visited a camp where a group of asylum-seekers had gathered in hopes that Biden might undo Title 42, families told me that smugglers had approached them to offer their services. A day later, a dozen of the families I had seen in the camp were nowhere to be found. I was later told they had gone with a smuggler east to Yuma, Arizona, where they would try to cross through a desolate and dangerous stretch of desert.
Rolling back Title 42 doesn’t throw open the metaphorical gates or let migrants cross without getting arrested. Instead, it returns the opportunity for migrants to plead their asylum cases before they’re deported—and the majority eventually are deported after failing a credible-fear interview or losing their asylum trials. At least part of the reason why Biden has chosen to undo the policy now is because hundreds of the asylum-seekers arriving on the border—in particular in Tijuana—are fleeing Russia’s invasion of Ukraine. Leaving Title 42 in place would lead the administration either to expel Ukrainians to a war zone, or pursue a potentially discriminatory policy of allowing them in while expelling asylum-seekers from other countries. As of press time, spokespeople for Abbott did not respond to questions asking to clarify the governor’s position on whether, in opposing rolling back Title 42, he supports blocking Ukrainian asylum-seekers from entering the country, or if he believes they are an exception.
Abbott is likely correct that ending Title 42 will lead to a sizable increase in the number of migrants trying to cross the border—thousands have been waiting years for this moment to legally cross and ask for asylum. But crucially, most of these asylum-seekers will be presenting themselves to Border Patrol. If the end of Title 42 is what motivated a person’s crossing, then that person’s goal likely is to ask for asylum. After all, if a migrant’s goal is to cross undetected, Title 42 has done nothing to stop them from trying, but if an asylum-seeker’s plan is to use the end of Title 42 to pursue asylum, doing so requires immediately presenting oneself to the authorities.
So why does Abbott think it’s necessary for DPS to perform enhanced inspections on traffic at the border? The charitable interpretation is that he’s worried that Customs and Border Protection agents, preoccupied with thousands of asylum-seekers arriving, will be less available to perform thorough checks of vehicles crossing at the ports. The less charitable explanation is that it’s all theater, comparable to his border deployment of National Guard troops, many of whom say they have little to do and are catching few migrants. By choking traffic at border crossings, Abbott can create an image of crisis on the border—an issue that his political advisers say favors Republican candidates. He could also clog the supply chain, which could lead to more product shortages and inflation, which could further anger Texans and other Americans, which could lead to Democrats getting clobbered in the midterms. That kind of benefit could make the cost of border theater seem like a bargain—at least to Abbott and his party.