Biden is defending key Trump immigration policies in court

The Justice Department is fighting to maintain Trump’s border restrictions and against compensation for separated families.

President Joe Biden’s administration is defending two of his predecessor’s more inhumane immigration policies in court: pandemic-related border restrictions and family separations.

The Department of Justice is actively fighting in federal court for border restrictions that have barred most asylum seekers from entering the US. In separate federal cases, it has argued that the policy of separating migrant families under former President Donald Trump was lawful, and has fought against payouts for those families.

For the Biden administration, defending some of the Trump administration’s most controversial immigration policies could be an attempt to preserve tools to manage the border, said Stephen Yale-Loehr, a professor of immigration law at Cornell Law School. Or, he said, they could mark an internal disagreement on righting the wrongs of the Trump era.

“Every administration wants to have as much flexibility and discretion as it can on immigration because you never know what conditions will arise in the future,” he said.

Still, it’s a legal strategy that comes as Republicans prepare to make Biden’s immigration record a key line of attack in the upcoming midterms, and amid complaints from immigrants’ rights advocates and progressive Democrats that the president’s not doing enough to dismantle his predecessor’s legacy.

There has been a steady stream of resignations among immigration officials in his administration, most recently those of two former advocates, Tyler Moran and Esther Olavarria. Meanwhile, Republicans regularly ridicule Biden’s policies, falsely claiming that he is an “open borders” Democrat. They hope that characterization will stick in the midterms, despite the fact that he has maintained Trump’s border restrictions, policies Republicans continue to praise.

On Wednesday, the Justice Department told a federal appeals court that the border restrictions known as the Title 42 policy, allowing the federal government to bar noncitizens entry into the US for health reasons, were necessary to protect public health. In just one year, the Biden administration has used the policy to carry out more than 1 million expulsions of migrants arriving on the southern border, either sending them back to potential danger in overwhelmed border cities in Mexico or to their home countries. Public health experts, however, have repeatedly argued that there is no scientific rationale for the policy and that it’s possible to safely process people at the border with the right precautions.

Earlier this month, the DOJ also urged two federal courts in California and Pennsylvania to dismiss cases brought by migrant families who had been separated by the Trump administration and are seeking compensation. Though Biden has previously said that those families deserved some form of compensation, settlement talks have since fallen apart. DOJ lawyers are now claiming that the Trump administration was within its legal right to separate families, meaning that those affected aren’t eligible for compensation.

The White House referred Vox to the Department of Justice, which declined to comment on the Title 42 and family separations cases.

The Biden administration’s defense of Title 42 and the legality of family separations in court may allow the president to truthfully say that he isn’t as “soft” on immigration as Republicans claim. But it also makes it hard to take Biden’s stated commitment to immigration reform seriously, and comes at an enormous cost: depriving hundreds of thousands of people of their legal right to seek asylum and magnifying the suffering of thousands of families broken by US policy.

Biden may have taken hundreds of administrative actions to undo Trump’s immigration policies during his first year in office. But his administration’s refusal to renounce Title 42 and fairly compensate separated families for their pain has cast a cloud over those accomplishments.

The Biden administration continues to invoke public health to keep out asylum seekers

Title 42 creates an easy way to reduce the number of people crossing the southern border; there’s no need to increase funding for processing, to ramp up immigration courts, or to invent policy that might reduce migration. Instead, the federal government can just expel people. And the Biden administration has continued to lean on this fact to manage the southern border, despite evidence that it has endangered asylum seekers in the name of what public health experts say is a dubious scientific rationale.

In March 2020, at the outset of the pandemic, Trump began using the special legal authority created by Title 42, a section of the Public Health Service Act that allows the US government to temporarily block noncitizens from entering the US in the interest of public health. Though Centers for Disease Control and Prevention (CDC) scientists initially opposed the policy, arguing that there was no legitimate public health rationale behind it, then-Vice President Mike Pence ordered them to implement it anyway.

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Nicole Narea