Border untitled: With Title 42 gone, new set of questions emerge

Title 42 is over. What comes next? Despite overheated and opportunistic political rhetoric, there is nothing about the new status quo at the southern border that could plausibly be called “open.” From a pure legal standpoint, the border is about as closed as it has been across U.S. history, certainly much more locked down than it was even five years ago.

Title 42 might be over, but the Biden administration rushed in its waning days to finalize a new policy that makes asylum exceedingly difficult to apply for, and would subject most migrants who try to immediate expedited removal; if anything, the border might be less accessible than it was before, given that the new removals will be full-fledged deportations as opposed to just expulsions, barring migrants from trying again for years at a time.

It remains to be seen how stringently the new rules are applied, but if used to maximum effect, the volume of migrants actually entering the country could even go down. This would be a disaster for due process and our humanitarian and moral obligations, but incidentally it would also mean that extreme preparations for an expected influx in New York and elsewhere are unnecessary.

These preparations include Mayor Adams’ executive order suspending certain parts of the city’s right to shelter framework, which have predictably drawn immediate condemnations. It’s a little iffy for an executive order to counteract decades of precedent, but executive power is often invoked responding to unprecedented situations, and it’s hard to argue that the city shouldn’t have at least some added flexibility here.

The order stops well short of trying to end the right to shelter for migrants, giving the administration the ability to take longer to place people in shelter, not be forced to place every family in a private accommodation, and not establish tenant relationships with migrants spending more than 30 days in a dwelling.

As with Biden’s post-Title 42 rules, what matters here is the execution. It is reasonable for the city to occasionally, for example, place waiting migrants in some sort of temporary waiting area for a few hours longer than the law allows in order to process an increased volume of arrivals. It is not reasonable for it to begin placing dozens of migrant families in congregate settings like outdoor encampments or a decommissioned prison, an actual site Adams has reportedly been considering for migrant placements.

It doesn’t really matter if it’s determined that this is functionally the most efficient way of handling incoming migrants. We have responsibilities here beyond efficiency, including taking into account the potential long-term mental health impacts that long-term detention-like settings might have on children.

What we really need here is the federal government to step up, not by shutting down asylum or placing migrants in decommissioned military facilities, as Gov. Hochul has floated, but using its vast resources to assist with the planning and logistics of placing asylum seekers in states and cities where they’ll be welcomed and give them the ability to work.