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What we need to know about Title 42
May 10, 2022
Episode 660

What we need to know about Title 42

How effective was it as a public health measure anyway?

As we often say on the show, immigration is a labor market story. Since last month, when the Joe Biden administration announced plans to lift Title 42, it’s been the immigration story of the moment.

The program is part of a 1944 public health act that aims to prevent the spread of communicable diseases. After the Donald Trump administration invoked Title 42, the policy has been used about 1.8 million times to expel migrants at the border during the pandemic.

“It was always clear this was about shutting down the border to asylum seekers on political grounds,” said Denise Gilman, director of the immigration clinic and law professor at the University of Texas at Austin. “Did it work? Yes.”

On today’s show, Gilman explains how Title 42 was on shaky ground to begin with and what’s next as pandemic controls loosen.

Next, the hosts talk about the intersection of abortion rights and the economy. Plus, Congress is getting serious … about UFO sightings.

Stay tuned as listeners ask: What if “Marketplace” was all about dogs? And is that Kimberly giving you driving directions on your phone?

Here’s everything we talked about today:

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We’re looking for your answer to the Make Me Smart question: What is something you thought you knew that you later found out you were wrong about? Leave us a voice message at 508-827-6278, or 508-U-B-SMART, or email us at makemesmart@marketplace.org.

Make Me Smart May 10, 2022 transcript

Note: Marketplace podcasts are meant to be heard, with emphasis, tone and audio elements a transcript can’t capture. Transcripts are generated using a combination of automated software and human transcribers, and may contain errors. Please check the corresponding audio before quoting it.

Kimberly Adams: I’m ready.

Kai Ryssdal: Perfect. That’s good. Because the music started. If we’re not ready, it’s already too late.

Kimberly Adams: Hi, I’m Kimberly Adams, welcome to Make Me Smart, where none of us is as smart as all of us.

Kai Ryssdal: I’m Kai Ryssdal, it is Tuesday, which means it’s time for the weekly deep dive into a single topic today. It’s Title 42, which, when it started was nominally a rule that let the United States Government restrict immigration from certain places when there is a public health crisis. You’ve heard it in the news a lot a year or two ago and certainly recently as well.

Kimberly Adams: Because the Trump administration used it at the beginning of the COVID-19 pandemic to basically justify turning away migrants and asylum seekers at the border, sometimes returning them to their own countries or sometimes returning them to Mexico. And then recently on May 20 – recently, the CDC announced that it would end the use of Title 42 on May the 23rd. However, now that seems to be maybe not going to happen.

Kai Ryssdal: Yeah, there’s a lot that we don’t know about this thing, which is why we’ve got it on the show today. Denise Gilman is director of the immigration clinic, also professor of law at the University of Texas at Austin. Professor Gilman, thanks for coming on.

Denise Gilman: Thank you for having me.

Kai Ryssdal: Could you give us the official sort of actual explanation of what Title 42 is, please, first of all.

Denise Gilman:  Well you all did an excellent job of describing it. It is a program that comes under the public health laws, which allowed the Centers for Disease Control to issue an order, saying that those who were representing, well those who were presenting themselves at the southern border, very specifically, asylum seekers presenting themselves at the southern border would be stopped from entering, accessing the US asylum system and instead would be immediately sent back either to their home countries or to Mexico if Mexico would take them. It was always based on the idea that this was a pandemic control measure. But from the very beginning, there were high-level officials at the CDC who said that this really wasn’t very logical as a disease control measure. It was really always about immigration control. And now of course, there’s even more question given the state of the pandemic as to whether there’s really any aspect of it that’s about disease control.

Kimberly Adams: Why asylum seekers specifically?

Denise Gilman: Well, the stated justification was that asylum seekers require more processing at the border or facilities, because they have to be processed into the asylum system, they aren’t going to be either immediately rejected as non-asylum seekers might be, nor are they going to be just quickly processed through because they have a U.S. passport or a visa. So it is true that there’s a little bit more processing that needs to take place for this particular category of individuals. And that was kind of the justification. But actually, Title 42 didn’t really prevent that. In other words, even when people are expelled under Title 42, they have to be processed for that purpose. And so you are still seeing that people are held, asylum seekers are held in border patrol facilities for some time while they’re processed through this system.

Kai Ryssdal: So, the Trump administration before we get to present day and honestly mess, right. It’s a political mess, and it’s a it’s a policy mess, but the Trump administration was famously shall we say not in favor of immigration and they use the pandemic to enact, fundamentally immigration policies. Did it work for the Trump administration just just in that period of time.

Denise Gilman: Well, right. So, I do think, as I say, there really was never any great public health justification for this, there was always the reality that even with these automatic expulsions there was going to be processing. So even that minimal justification that, well this category of asylum seekers takes more time to process never made a lot of sense. So it was always clear that this was really about shutting down the border to asylum seekers on political grounds. Did it work? I mean, yes, if you’re if your goal is to block access to the asylum system, for vulnerable individuals fleeing persecution, despite the fact that international law and U.S. law provide very clearly for the right to access a protection procedure. Yeah, it worked. It prevented many, many vulnerable asylum seekers from accessing the system.

Kimberly Adams: And what’s been the human impact of that, both at the border and in the countries that folks end up going back to?

Denise Gilman: Right, so the impacts have been really truly horrific. Many individuals have been sent back to Mexico, we’re now at the range of around 10,000 documented cases of migrants asylum seekers who have been harmed seriously on the Mexico side of the border, often, very soon after they are sent back across the bridge into Mexico by U.S. officials, who know that the cartels are there waiting for them on the Mexico side, because this is a very vulnerable group sort of being sent directly back into their hands by the U.S authorities. And then for many, if they were not sent back to Mexico, where they face this kind of cartel violence there, they were sent all the way back to their home countries that they had fled, often because of extreme violence, that they were very fearful would repeat itself. And we are hearing stories that people who’ve been sent back to Honduras or El Salvador and have faced again, violence anew in their home countries.

Kai Ryssdal: And now, a year and a half-ish, whatever it is into the Biden administration. It is in court, a district judge has blocked the Biden administration from ending the use of Title 42. It’s a policy mess in Congress. Now what happens?

Denise Gilman: It’s a really good question. There is very, very little explanation for how the program could possibly continue at this point when mask mandates are being taken down every other pandemic control measure has really been lifted for the most part. And particularly when there are very strong measures in place now as there weren’t at the beginning at the border for testing, vaccination, quarantine, all of the all of the rest, the program was always both over inclusive and under inclusive, because it focused on asylum seekers rather than those who might be most likely to be bringing COVID and under inclusive in that it didn’t get those who might be actually carrying the disease, the virus, even a citizen, U.S. citizens, for example. So there was never a lot of explanation. But now –

Kimberly Adams: Wait, what do you mean by that?

Denise Gilman: Well, so U.S. citizens, were always able to go back and forth across the border, Title 42 Never impacted them, Title 42 always had big holes, exemptions for commercial truck drivers bringing tomatoes, for example. And those individuals could just as likely have COVID. This is not to say that they shouldn’t have been allowed to come, it’s to say that a better focus would have been on identifying those who might actually be bringing COVID and adopting COVID measures relating to those instances like quarantine, like testing and the rest rather than just scooping up all asylum seekers, which was, as I say, sort of over inclusive, because it got all asylum seekers, regardless of any indications. You know, many of them may have had vaccinations, may have tested negatively scooped them up anyway. And it didn’t scoop up those who might well have had the possibility of bringing the virus. So like I say, there was never much explanation for it. But now it’s very hard to see an explanation. And to be clear, even what’s happening in the courts is more complicated than just the district court decision saying that Title 42 should continue. Because there’s also a D.C. appellate court federal decision saying that Title 42 in its broadest application actually is unlawful, that it can’t be applied to return people to situations of danger that there has to be much more rigorous screening before people can be expelled, it can’t be this automatic expulsion. And so even in the courts, you have sort of competing decisions. And then yes, there’s certainly very strong debate at the, at the policy level as well. I genuinely hope and believe that we can see our way through this. There is no logic to continuing the program at this point, to the extent there need to be different kinds of border measures put into place, we can talk about that rather than trying to graft on this public health regimen onto an immigration asylum issue. And in fact that the administration has proposed and is set to implement new regulations for asylum screening at the border. Those regulations have some good things for asylum advocates, and some less good things for asylum advocates, but they definitely are an attempt to actually get at the issues of how do you humanely process  – there are going to be some large numbers of asylum seekers in coming months. And that’s where we should be focused rather than on this public health measure.

Kai Ryssdal: Can –

Kimberly Adams: You said, oh, go ahead.

Kai Ryssdal: No no, go ahead, because I was going to take it someplace else.

Kimberly Adams:  Yeah, you said that. There’s no good reason to keep it going. But what you just mentioned is probably in the very cynical political minds of folks here in the fair city of Washington, D.C., a reason in itself, we’re heading into the midterms. And a lot of the politicians, especially on the Democratic side, are worried about what it would look like to have so many people crossing the border around this time.

Denise Gilman: Right. And that is absolutely a political consideration that is playing into all of this, there is no doubt about it. And I think it is notable that the Biden administration has decided that there just really can be no argument for the program anymore. And so they are moving to end it despite the political realities out there. I wish if I had a magic wand, honestly, that they had ended the program much earlier than it wouldn’t be happening sort of right at this very juncture where it is even more complicated. However, you see, the issue is just going to be more complicated with the high stakes of the midterm elections coming up. So it just makes it a whole lot messier. Whereas if it had happened, if the end of Title 42 had happened earlier, we wouldn’t be quite in this place. But honestly, I think the the best way to address the reality that yes, the numbers are going to be relatively high in the coming months is to recognize first of all, that that is a product of Trump administration policies around Title 42 border restrictions. Also the “Remain in Mexico” program, there are people who have been waiting, trapped in Mexico for three to four years now who are entitled to access the asylum system. And so it’s going to take a little while to process those folks. And and we just have to recognize that and recognize that that’s what the rule of law really requires. That’s what the law is, is to recognize that there are people in need of protection and to process them appropriately and humanely. The second thing is that we can do this. That’s the second, I think, important political point to be made right now, as I say there are new regulations that would streamline some of the processes. We have the resources if we bring them to the border, and there has been a good deal of planning, acknowledging that there are going to be these larger numbers in the coming months. So the resources can be brought to bear the numbers of asylum officers need to be raised to be there at the border. The facilities for reception shelters right in the border area where migrants, asylum seekers usually only stay for hours or days until they go to live with family in various parts of the country. But those shelters are ready and willing to receive asylum seekers, a number of border communities have made very clear that they are very anxious to support asylum seekers as they pass through their towns.

Kai Ryssdal: Let me just super quick piggyback on, well, maybe it’s not super quick, I don’t know, piggyback on something that Kimberly said the politics of this thing. I had a little bit of a rant on the podcast a week or two ago. And it went fundamentally like this. I think immigration, perhaps even more than national security, immigration is the clearest example of Congress abdicating its responsibilities under the Constitution and leaving all the really hard decisions to the executive. Now that I’ve got an expert on the phone, what do you think of my theory?

Denise Gilman: Well, I think that’s right.

Kai Ryssdal: Boom.

Denise Gilman: Except that Congress has actually –

Kai Ryssdal: Oh.

Denise Gilman: Congress has actually provided pretty clearly for for a process for asylum seekers in 1980. The Refugee Act of 1980.

Kai Ryssdal: Yeah, but, not just asylum right I mean, immigration overall.

Denise Gilman: Right, absolutely. But I think it’s a mistake to conflate the border and immigration overall, first of all, so I think what we’re seeing at the border is mostly a situation right now, and I’m not gonna say it would never change, but right now, it’s largely an asylum seeker situation. And there is legislation since 1980, that has worked for decades, that we should be using to allow for processing of asylum seekers that brings down into U.S. law, our international human rights obligations and refugee law obligations. And so if Congress wants to change that system, then it should do so. And that may be a place where there’s inaction but I don’t really see any good need, I think what needs to happen is that we need to comply with that law and recognize that the numbers really don’t overwhelm that law. Yes, resources need to be brought to bear but we can do this. Then in terms of the larger immigration policy, yes, absolutely. There has been such an ongoing battle, in Congress and in the political sphere in general, for so many years now that nothing happens. I think both sides of the issues, see that there could be positive changes, although we may mean very different things by saying the system is broken. And we need reform, but, but there is an acknowledgment that there needs to be change, and nothing happens. So yes, the executive has to step in and do what it can to try to move the system forward and in meaningful ways.

Kimberly Adams: Last one, I’m going to let you go, but you were talking about that there’s a system in place that could work. And it’s worth noting it is working for some people, Ukrainian refugees, and asylum seekers are able to cross the border right now. And I’m wondering what you think of the timing of the Biden administration’s announcement that it wanted to lift Title 42, which happened around the same time that Ukrainian refugees started coming to the U.S.-Mexico border?

Denise Gilman: Well, you’re certainly pointing to a reality that is just impossible to ignore, which is that even the very, very restrictive measures that have been put in place Title 42 and before that, “Remain in Mexico,”and before that, some metering, waitlists at the border, have all been pretty clearly discriminatory, mostly towards people coming from Latin America and Haiti, and have never been applied in the same way, even to those sometimes coming from Venezuela just a little further south and a little less clearly Latino, less, less people of color. And the Ukraine situation just brought that all to a head when it became very clear that Ukrainians would be allowed to enter the United States despite ongoing application of Title 42 and “Remain in Mexico” currently, at this point, and so it just made it all very clear, particularly following not too far along after the very vivid images of Haitians being chased on horseback at the border, which was really a Title 42 implementation issue as well, just the juxtaposition was very harsh. So I expect that that did have something to do with the reality that some, the ending of Title 42 was just absolutely necessary at this point. But I think it also coincided quite tightly with the limitations on COVID restrictions that that were also coming into play, the lifting of mask mandates and the rest, it just seemed really hard to justify a COVID measure at the border that was was pushing people back to Mexico or to their home countries at the same time that most COVID mandates in the United States were being lifted.

Kimberly Adams: Guess we’re gonna have to wait and see what happens next. Denise Gilman director of the immigration clinic and law professor at the University of Texas at Austin, thank you so much.

Kai Ryssdal: Thanks. I really appreciate it. Well, I learned something. I’m square on Title 42, now, so that’s good. Right?

Kimberly Adams: Yeah. I didn’t realize that we had a system that kind of functions well if implemented.

Kai Ryssdal: If implemented right. Yeah. Yeah, totally.

Kimberly Adams Now, we just have to see if it can be applied equally in some ways. Right?

Kai Ryssdal: Right. Right. Right. Well, tell you what, let us know what you thought about that conversation. What surprised you? What didn’t? What questions you still have because you know, just because we do it once doesn’t mean you can’t do it again. If we didn’t get to all of the things we need to know. Our phone number is 508-827-6278 also known as 508-U-B-SMART and send us a voice memo if you’d like make me smart at marketplace that way. Back is what we shall be.

Kai Ryssdal: All right, news fix time. I’m gonna go first because mine’s light and fluffy. And yours is much more substantive. Did you see in the New York Times today that a House subcommittee next week is going to hold the first open congressional hearing on unidentified flying objects in more than 50 years?

Kimberly Adams: I saw it when you linked to the story. I’m very excited and I will be tuning in and I will be watching. I can’t wait.

Kai Ryssdal: Yes. Remember, there’s this whole thing last summer about these Navy videos and the whole you know, these guys in the cockpit going all without doing they couldn’t figure it out. Anyway. Thanks in large part to the now departed Harry Reid, all this stuff is coming out into the open. And I think it’s fascinating. And I will be watching that. And I think we all should too.

Kimberly Adams: I remember when that came out, you know that they were going to release all this information publicly. And there was so much happening at the time that it barely made a ripple. And I remember thinking and a lot of people commenting all the time, at the time that like the US government just acknowledge that UFOs are real and everyone’s just like, hmm, another day.

Kai Ryssdal: Yeah, Tuesday.

Kimberly Adams: It was like such a flood of news at the time, and just everything going haywire. And we’re all just like, huh, UFOs. Yeah, sounds about right.

Kai Ryssdal: Next week hearing, we will bring you the update when it happens, because I just think it’s fascinating.

Kimberly Adams: Okay, well, my news fix comes from Bloomberg. I mean, it was from a hearing. So I mean, anybody can see it C Span, whatevs. But to reinforce what you and Molly said, when you talked about reproductive rights being economic rights. Janet Yellen, the Treasury Secretary Janet Yellen was testifying to Congress today, I think it was actually today, Senate Banking Committee, and somebody asked her a question about the overturning of Roe versus Wade, and she weighed in on it. And she said that eliminating the right to access abortion services, quote, would very would have very damaging effects on the economy, and would set women back decades. And, you know, she pointed to all this research in economics that said, you know, be economically harmful to women to children, and really kind of got into how a woman being able to, I’m sorry, people who give birth or who might want to have abortions, who want to be able to make choices about their life and their career and their financial ability to raise a child taking away that has economic consequences as you laid out. And so, yeah, it’s worth, worth watching what she has to say.

Kai Ryssdal: And it’s also worth pointing out here that Janet Yellen is the first woman to have the job she has now, first woman to chair the Fed and first woman to run the Council of Economic Advisers of the White House. I mean, it’s, you know…

Kimberly Adams: This is true. AND It’s another example of how this is really touching so many parts of government, economy, social life, religious life. This this is just sucking up everything into it.

Kai Ryssdal: Sure is. Jayk. Let’s do it. All right, I actually don’t know what this first voice memo is gonna sound like so just all y’all listen up. I will listen to the same time and we’ll figure it out. Here we go.

April: Okay, it’s April from L.A. trying one more time. And let’s see if you can hear it. And I swear, this sounds like our own Kimberly Adams.

Siri Female Voice: Starting route to Los Angeles International Airport, seek Leffingwell Road, then turn left.

April: Right. It sounds just like her. Alright, thanks.

Kai Ryssdal: You know, alright, so look, if she hadn’t actually said it sounded like you, I wouldn’t have picked it up. But now that she did I buy it. I buy it.

Kimberly Adams: That would be Apple’s American female voice number two. And I know this.

Kai Ryssdal: Do you know? You get it all the time?

Kimberly Adams: Because this is not the first person who’s flagged this for me.

Kai Ryssdal: I love that. That’s great. That’s so funny.

Kimberly Adams: When they first rolled out the new voices. Someone tagged me on Twitter. And they were like this, “did they use your voice for this?” And I will admit, at first I was like, “Oh, they’re just saying that because you know, it was supposedly a Black woman’s voice and whatever.” But then I was on a road trip with a friend. And we’re like, okay, let’s check it out. And we switched our navigation to Apple woman voice number two. And it was the most disorienting thing I have ever heard in my life.  That is too funny. I love that. Because it does sound like me. It does totally does. So there’s a Make Me Smart connection to this actually. Because I actually tracked down the person who originally sent me that that tweet and I and I asked him sort of how he made the connection. And he said that, you know, he and his wife were listening to the Siri voice and they’re like, “it sounds so familiar. It sounds so familiar.” And then they were listening to Make Me Smart. And I was on and they were like that’s who it sounds like. So yeah, it’sit’s eerie. It’s really weird.

Kai Ryssdal: That’s cool.

Kimberly Adams: It’s disorienting. Yes. All right. So we also got this note from Carolyn in Hawaii.

Carolyn: This is a comment about the story regarding dog breeds and genetics and personality. I’ve been a veterinarian for 22 years. And I agree Stop picking on the pit bulls. The vast majority of them have been sweet goofballs, but some things you can’t talk me out of Golden Retrievers are the best huggers. And that is a hill that I am willing to die on. Thank you and keep making me smart.

Kai Ryssdal: That is true. That is true. I gotta golden.

Kimberly Adams: I don’t my mother had a Yorkie Poo that every time she came into the house, he’d like hug her leg and it was like a full on embrace.

Kai Ryssdal: Wow, you sure it was hugging? I’m sorry.

Kimberly Adams: I’m positive I knew you were gonna say that!

Kai Ryssdal: Somebody had to I am not the only person listening to this podcast who thought of that. I am not.

Kimberly Adams: It was definitely a hug.

Kai Ryssdal: Okay, speaking of dogs cuz I don’t know Bridget went all in, what if Marketplace was all dogs all the time? What would that sound like? Here we go.

Max: The thing about this country right now? Treats might not be market drivers as much as we thought. Also, a little bit later on, cats love them or hate them. Yep, that ol’ chestnut, love her.  From American Canine Media. This is Barketplace. From Los Angeles I’m Kai Roofs-dal.

Kai Ryssdal: So that was that was Max in Brooklyn City, said he was inspired by Luke Burbank on Twitter. Luke Burbank who does “Too Beautiful to Live,” he’s on “Wait, Wait” every now and then. Anyway, he actually made a Twitter joke about making a podcast focused entirely on the pet economy, which is like $70 billion. So Max had some spare time up in Brooklyn and I guess just got creative  I don’t even know.

Kimberly Adams: That was creative. That was fun.  That was very creative. Kai Roofsdal. That may have to stay around.

Kai Ryssdal: You get you get Apple directions and I get that okay, fine. Sure.

Kimberly Adams: Well, I mean, you could, you could wonder if – so one of the questions that happens about that is like, there’s a lot of audio of my voice on the internet. So like, did their AI like scrape my voice or something and, and if my voice can be so easily replicated, what purpose is there for me in the world? Anyway, before we go, we are going to leave you with this week’s answer to the Make Me Smart question, which is what is something you thought you knew, but later found out you were wrong about?

Ryan: Hi Make Me Smart. This is Ryan from San Diego. I wanted to share something I thought he knew. But turned out I was wrong about it, I would become part of the big quit. I was recently looking at my career and I wasn’t moving fast enough along as I want it to so I looked at other jobs. I also thought that my company would try to do more to keep me but turns out there was nothing they could offer me. So I’m moving along to step into a new job going from oil and gas to med devices. I never thought I would do it but we’ll see what the future holds.

Kimberly Adams: I think a lot of people had that experience thinking that their companies would do more to keep them but just like, eh, no.  But congratulations on the step in a new direction wish you luck. All right. Keep sending us all of your answers to the Make Me Smart questio via voice memo to our email at makemesmart@marketplace.org, or you can leave us that voice message at 508-827-6278. 508-U-B-SMART.

Kai Ryssdal: Make Me Smart is directed and produced by Marissa Cabrera. Ellen Rolfes writes our newsletter our intern’s Tiffany Bui.

Kimberly Adams: Today’s program was engineered by Jayk Cherry with mixing by Charlton Thorp, Ben – Ben Tolliday, Ben Holiday and Daniel Ramirez composed our theme music the senior producers Bridget Wagner Donna tam is the director of on demand and marketplaces. Vice President and General Manager is Neal Scarbrough. We should do the credits in the Apple voice one time and see how it sounds

Kai Ryssdal: That’d be great, that’d be great.

Kimberly Adams: There’s like a couple of words that she says that are very different from I would say them but a lot of it is is quite similar.

Kai Ryssdal: That is too funny.

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