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The end of Title 42 may be an inflection point in Biden’s presidency.

President Joe Biden walking along the U.S.-Mexico border fence in El Paso, Texas on January 8, 2023. (Photo by JIM WATSON/AFP via Getty Images)

“If liberals insist that only fascists will enforce borders, then voters will hire fascists to do the job liberals refuse to do.”

David Frum wrote that in 2019. I had occasion to think of it on Wednesday night.

Few Democrats would allow that they share the view imputed to them by Frum. But many among the party’s progressive vanguard clearly do hold that position, and many mainstream liberals continue to doggedly resist any compromise with Republicans to secure the border unless it comes packaged with legal status for illegal immigrants who are already here.

The party writ large seems to regard controlling the flow of immigration into the United States not as a desirable end in itself but, at best, as a necessary evil, a bargaining chip to be conceded grudgingly en route to some sweeping new amnesty that will incentivize the next round of hundreds of thousands of people to congregate at the southern border.

And American voters know it. If you’re nervous about a Trump restoration in 2024, as you should be, there are few developments short of a major economic downturn as threatening as a historically massive wave of migrants entering the U.S. as the Biden administration flails powerlessly. The end of Title 42 looks like it might unleash that wave.

If liberals insist that only fascists will enforce borders, then voters will hire fascists to do the job liberals refuse to do.

In fairness, Biden isn’t “refusing” to enforce the border.

Title 42 authorized border agents to summarily expel asylum seekers, forcing them back into Mexico instead of admitting them to the United States. The policy was instituted by Trump’s administration during the pandemic as an emergency health measure to prevent migrants from bringing COVID into the country, but that was mostly a pretext. Really it was to beef up border enforcement for its own sake, to keep out undesirables. 

Biden’s administration continued the policy but the official end of the COVID emergency in the U.S. meant there was no longer a regulatory basis for it, leaving it to expire at midnight on Thursday evening. In the populist Republican telling of the story, the end of Title 42 means that the border is now open, all efforts to secure it effectively abandoned.

But Title 42 was no panacea. In the first 18 months of Biden’s administration, with the policy still in effect, there were more than 3 million border crossings. Republicans have spent his presidency somehow insisting on the one hand that the border is out of control and on the other that Title 42 is the only thing standing between us and a border that’s out of control.

As it turns out, the policy isn’t being abandoned so much as it is being replaced. Under a new Biden rule, asylum seekers who show up at the border without an appointment are presumed ineligible to apply unless they first sought asylum in another country en route to the U.S. and were rejected (or unless they’re facing exceptional circumstances like a medical emergency). Once they’re taken into custody, “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,” per the New York Times.

If they’re deemed ineligible, they’re barred from entering the U.S. again for five years and may face criminal charges—penalties that weren’t imposed under Title 42. Migrants now have a reason not to keep crossing the border again once they’ve been expelled, making the new rule arguably tougher than the one it’s replacing.

The tricky part for Biden is how to implement that new policy effectively when the people charged with carrying it out can’t keep up with the number of potential applicants they need to process.

According to the Daily Caller, as of Friday morning some 25,000 migrants were in custody at Border Patrol processing centers, more than double the capacity of those facilities in certain sectors. The head of the Border Patrol told CBS that another 60,000 are waiting near the border to enter the United States. More than 10,000 illegal immigrants per day were apprehended earlier this week, raising the question of how many might have made it across without being intercepted.

The optimistic view of what’s happening is that migrants are spooked by Biden’s new asylum policy and began rushing to get into the country before it took effect on Friday morning. Now that it has, the pressure at the border will begin to abate. The pessimistic view is that few migrants have heard of the new policy and were lured to the border instead by news that Title 42 is being lifted. At last, the restrictions imposed by an anti-immigrant Republican president are being rescinded by a compassionate pro-immigrant Democrat!

Aspiring immigrants abroad are quite sensitive to encouraging signals sent from Washington. Word on the street in Central America about the looming end of Title 42 might have unleashed years of pent-up demand, which, if so, would mean we’re at the beginning of a massive border surge, not the end.

It may be too much for the immigration court system, already horribly backlogged by a shortage of judges. It’s already too much for the Border Patrol. A memo issued by the agency a few days ago authorized agents to “parole” migrants by releasing them into the United States without an alien registration number or a court date if it’s necessary to avoid overcrowding in processing centers, which is functionally the opposite of Title 42. On Thursday night a federal judge in Florida blocked immigration officials from instituting that policy but the Department of Homeland Security warned the court that forcing them to hold all detained migrants could lead to 45,000 people in custody by the end of the month. 

The ruling will be appealed but any outcome will be a political disaster for Biden, realistically. Either he’ll be faced with a humanitarian crisis in Border Patrol facilities or left to explain why a huge number of migrants are being rapidly freed with little way to track them. Or both.

That challenge would be daunting even for a popular young president. For an unpopular elderly president already perceived as unfit for the demands of his job, and who’s especially distrusted on immigration, it’s a political catastrophe in the making.

The polling data speaks for itself.

Last month, a survey of seven battleground states found Biden’s job approval on immigration at 32-58. Fully 52 percent said they thought he was ignoring problems at the border, and for good reason. The president had been famously reluctant to see the problem for himself until this year; by lifting Title 42, he appears to be relaxing security at a moment when border crossings have already become a crisis; and of course he’s very, very old. It’s easy to believe that he’s completely checked out on solving this problem, assuming he recognizes the problem at all.

Across multiple polls, FiveThirtyEight finds Biden’s average approval rating on immigration to be considerably lower than his overall job approval, which is itself dangerously low for an incumbent. On immigration he stands at 35-57, which is 13 net points worse than his general approval. One particular poll published in March saw just 20 percent of registered voters say that the immigration system has improved under Biden versus 47 percent who think it’s declined, notes author Nathaniel Rakich. That’s an astonishing split considering how many liberals viewed Trump’s immigration policies as a core moral reason to oppose him.

Two days ago Morning Consult published a poll asking specifically about the end of Title 42. Just 37 percent support terminating the policy while 51 percent oppose it. Among independents the divide is 27-57. And those results are based on limited information, with just one in five voters saying they’d heard a “lot” about it. Imagine what the numbers will look like in a month if the border surge becomes the sort of calamity it’s shaping up to be.

Of 16 different issues tested, Morning Consult went on to say, the one which saw Biden receive his highest level of disapproval was—well, guess.

This would be ominous for any president facing a crisis involving a matter where he’s already viewed as weak. It’s more ominous for a president who leads a party with a noisy faction that continues to try to incentivize immigration even as he struggles to discourage it. It’s more ominous still for a president likely to face an opponent in 2024 who, for all his many faults, has built a reputation for being tough on immigration.

And it’s supremely ominous for a president who got elected in 2020 by promising to end the full-spectrum chaos of the previous administration. Voters who “somewhat” disapprove of Joe Biden voted Democratic in last year’s midterms to a shocking degree, evidence that they continue to disapprove of Donald Trump and his Republican Party just a bit more. An unmanageable border fiasco would tempt those voters to revisit their assessment by reminding them that not everything was more chaotic when Trump was in charge. Which in turn might be enough to tip that “meh” contingent from reluctantly pro-Democratic to reluctantly pro-GOP.

Biden’s political problem has been compounded by a surprising development. I can’t believe I’m about to write this, but … Republicans have been savvy and effective lately in exploiting his immigration liabilities.

After months of wrangling with his notoriously fractious caucus, Kevin McCarthy managed to pass a border security bill on Thursday just in time to capitalize on the calamity unfolding down south. The GOP will spend the coming weeks and months wondering loudly what Joe Biden and Chuck Schumer have against basic border enforcement, such as finishing Trump’s wall and hiring 22,000 new Border Patrol agents, with no good responses in the offing.

Some Senate Democrats (and independents) whose seats are on the line next year are peering down the tracks and see the train bearing down on them. Kyrsten Sinema, Joe Manchin, Jon Tester, even the otherwise very left-wing Sherrod Brown of blood-red Ohio are suddenly scrambling for ways to reinstate Title 42. Ardent progressives in safe seats like Elizabeth Warren and Mazie Hirono are predictably pushing back. The president is about to end up in the middle of a food fight between the open-borders diehards in his party and everyone else, knowing that either his base or swing voters will be throwing tomatoes at him by the end.

Republican governors like Greg Abbott and Ron DeSantis have been shrewd in another way, notes Noah Rothman in a piece for National Review today. By busing migrants to liberal enclaves like New York, Chicago, and Washington D.C., they’ve forced Democrats to internalize the immigration crisis and turned influential Democratic politicians against Biden. In NYC alone, Mayor Eric Adams has tried to cope by modifying the city’s right-to-shelter rules, explored the possibility of setting up tent cities in parks, and even taken to busing migrants out to redder jurisdictions of New York State himself. Earlier this month he complained about the irresponsibility of Republicans in resisting an immigration deal—and “the irresponsibility of the White House for not addressing this problem.”

Suddenly forced to bear their share of the immigration load, urban liberals are getting the full border-town experience. And they don’t like it. “The busing program has rendered America’s border crisis a far more visible nightmare by exposing the nation’s political and media professionals to it,” Rothman writes. “In objecting to their treatment by the border states, Democratic lawmakers in America’s most permissive municipalities are inadvertently popularizing the case against lax immigration policies.”

If, by 2024, there’s a solid and newly bipartisan consensus that strong borders are an urgent national priority, how does Joe Biden fare in that election against a proto-fascist like Trump?

The White House does have a long-term strategy on how to reduce pressure on the border. Very simply, they want to make it more attractive for asylum seekers to apply from their home nations. A more convenient legal immigration process administered abroad will reduce, they think, the incentive for aspiring migrants to risk life and limb by making the journey up through Mexico.

I suppose that’s true. How much it might reduce it is a separate question.

It seems to me that the people with the most compelling asylum cases are also the people least likely to wait patiently at home while their application winds its way through the Kafkaesque U.S. immigration system. Asylum is designed to be an escape hatch for those being persecuted in their countries of origin. If you fear you might be imprisoned or killed because of your religion or ethnicity, you’re not hanging around until you get a call from the State Department. Better to flee and take your chances in Ciudad Juárez.

On the other hand, the people with the least compelling asylum cases also have little incentive to apply remotely. If all you want is an opportunity to work in the United States, you’ll expect to have your application rejected. The only way to get into the country is to show up at the border, enter by making a weak asylum claim (or just crossing over illegally), and hope that the feds are so overwhelmed that you end up being released on your own recognizance, never to be seen by U.S. authorities again.

As any lawyer will tell you, “Possession is nine-tenths of the law.” There’s no better way to ensure your long-term future in the United States than by first gaining a foothold on American soil, by hook or by crook. Eventually Democrats will regain total control of the federal government and you’ll be amnestied, the supreme reward for your wisdom in ignoring Joe Biden’s “apply from home” system.

And although it’s almost too obvious to say, I’ll say it anyway: Insofar as “apply from home” stands any chance of becoming the preferred mode abroad of seeking asylum, that chance depends heavily on rigorous border enforcement. The harder it is to enter the United States by just showing up, the greater the incentive to apply at your local embassy, the way the White House wants. Biden is placing the cart before the horse in his effort to normalize remote asylum applications, and he’s doing it because he can’t muster a consensus within his own party that enforcing the border is a worthy policy on its own merits.

His political judgment over the next 18 months, and the left’s willingness to let him pivot to the center, are the only things standing between us and an ordeal from which the country will never recover. If you’re the praying type, now’s the time.

Nick Catoggio is a staff writer at The Dispatch and is based in Texas. Prior to joining the company in 2022, he spent 16 years gradually alienating a populist readership at Hot Air. When Nick isn’t busy writing a daily newsletter on politics, he’s … probably planning the next day’s newsletter.