One could ask whether Title 42—the Covid-era measure that has been used to staunch the flow of immigration across the United States’ southern border—has been resurrected or is merely among the Undead.
In any case, Title 42 is back, thanks to a 5-4 Supreme Court ruling on December 27 reinstating it after the Biden administration tried to end it.
One curious detail: conservative justice Neil Gorsuch voted with the liberal justices against Title 42, saying in a dissenting opinion that “the current border crisis is not a COVID crisis.”
Of course it isn’t.
“Title 42 is a public health measure, not an immigration enforcement measure, and it should not be extended indefinitely,” said White House press secretary Karine Jean-Pierre in response to the December 27 ruling.
Legally, it would seem unjustifiable to continue a measure when the problem it is meant to address has largely subsided.
But that is hardly surprising to anyone who follows the long, sad history of American immigration policy toward Latin Americans.
I could not even say whether the extension of Title 42 at this point is right or wrong, because I know enough about the situation to understand that I have no idea of how it should be handled.
Even viewed from the most benign perspective, Title 42 is a mere stopgap for an effective border control policy.
The question is not whether such a policy couldn’t be workable—why couldn’t it be?—but whether there is the political will to make it work.
In this context, it is useful to look at what the Biden administration wants to do when Title 42 has finally had a stake driven through its heart.
It is based on “six pillars” (the Biden administration likes to frame its policies in terms of pillars):
- Surge resources;
- Increase efficiency to reduce strain on the border; employ an aggressive consequence regime;
- Bolster the capacity of NGOs and partner with state and local partners;
- Go after cartels and smugglers; and
- Work with our regional partners.
This isn’t enough: the administration admits that it isn’t enough. “To truly fix our broken immigration system, we need Congress to pass comprehensive immigration reform measures like the ones President Biden proposed on his first day in office,” said Jean-Pierre in her White House press statement.
The produce industry has constantly pressed for passage of the Farm Workforce Modernization Act (FWMA), which would make it easier for agricultural employers to hire workers from abroad. A sad Christmas for farm labor – Produce Blue Book
This is all well and good, but it seems obvious that FWMA will not be enacted unless a larger, more comprehensive, complete, and workable immigration policy is also enacted—however close or far that may be from what the administration is proposing now.
It might be nice to think that the two things could happen separately, but it is clear that they will not.
The produce industry, then, must move toward a firmer and more active stance toward immigration reform as a whole. Nothing else will work.
