Top State adviser leaves post, rips Biden’s use of Trump-era Title 42
Harold Koh, who will switch to a consulting role, called the use of the authority ‘illegal’ and ‘inhumane.’
A senior State Department official is leaving his role in the Biden administration. And on his way out, he has sent a scathing internal memo criticizing the president’s use of a Trump-era policy to expel migrants from the southern border.
In a detailed legal memo dated October 2 and obtained by POLITICO, Harold Koh, a senior adviser and the sole political appointee on the State Department’s legal team, called the use of the public health authority known as Title 42 “illegal,” “inhumane” and “not worthy of this Administration that I so strongly support.”
“I believe this Administration’s current implementation of the Title 42 authority continues to violate our legal obligation not to expel or return (“refouler”) individuals who fear persecution, death, or torture, especially migrants fleeing from Haiti,” the memo reads. He added that “lawful, more humane alternatives plainly exist.”
Koh’s letter has been circulating across the administration over the past 48 hours. It is the latest example of internal strife within the Biden administration over its immigration policy, with some officials believing the president has continued too many of the policies implemented by the Trump administration out of fear of Republican attacks.
At the center of that debate has been the continuation of “Title 42,” the shorthand for a law that gives the administration authority to bar people from entering the country during a health crisis. The administration has used Title 42 to kick out thousands of migrants without allowing them to seek asylum, which, critics say, is in violation of U.S. and international law.
Despite such internal dissent, the White House and State Department argue that their hands are tied in amending Title 42 and that the continued use of the authority was being driven by public health determinations made by the Centers for Disease Control and Prevention.
“Title 42 is a public health authority, not an immigration one, and that authority rests with the [Center for Disease Control and Prevention],” a White House official said. “The CDC has determined that the continued expulsion of certain individuals under Title 42 is necessary due to the risks of transmission and spread of COVID-19 in congregate settings, such as U.S. Customs and Border Patrol stations, as well as the threat from emerging variants.”
A senior State Department official added: “We defer to the CDC on decisions related to Title 42.”
On Sept. 16, a federal judge blocked the administration from using Title 42 to expel migrant families, saying the law can’t stop people from seeking asylum. But the U.S. Court of Appeals for the D.C Circuit last week issued a stay of that ruling, preserving the administration’s ability to use the public health order.
On Saturday, the CDC assessed that invoking Title 42 “continues to be necessary at this time.” The legal battles are ongoing.
Former President Donald Trump issued Title 42 orders to stymie the flow of migrants into the United States, leading to outcries that he was using the cover of a global pandemic to push hardline immigration policies. Advocates were hoping President Joe Biden’s team would end the practice. Instead, it has remained in place, used most recently to fly thousands of Haitians seeking asylum away from Del Rio, Texas and back to their home country — a situation Koh spotlighted atop his memo.
The security situation in Haiti has deteriorated since the country’s president was assassinated in July, and economic woes have plagued the country for decades, in part as a remnant of American policies.
Koh’s memo is the latest criticism of the Biden administration’s handling of tens of thousands of Haitian migrants once camped at the International Bridge in Del Rio.
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