Though it is sometimes forgotten today, the ostensible rationale for the use of Title 42 was the need to curb the spread of the coronavirus pandemic. Indeed, the authorizing statute is a public health power granted to the Centers for Disease Control in order to prevent the “introduction” of diseases into the United States.

As a public health measure, Title 42 was a dismal failure. The original Covid variant and later ones such as Delta and Omicron all still quickly got into the US and swiftly spread throughout the country, despite Title 42 and other migration restrictions. Public health experts in both the Trump and Biden administrations knew early on that Title 42 had little if any effect on the spread of Covid. But first Trump and then Biden continued the policy for other reasons: Trump as part of his general anti-immigration agenda, and Biden because he hoped it would help curb politically damaging perceptions of disorder at the border.

In this way, the invocation of Title 42 over the last three years has been a particularly egregious case of the abuse of public health powers for the purpose of pursuing unrelated political goals. Conservatives and others who oppose such shenanigans in other contexts should object to it here, too. On top of that, the use of Title 42 under Trump and Biden was also illegal. The power to block “introduction” of a disease into the United States surely does not apply to a virus that has already established itself here on a large scale. Biden and Trump’s broad interpretation of the statute would give the CDC nearly limitless authority over immigration, thereby violating the major questions doctrine, and constitutional nondelegation constraints.

[I think conservatives clung to Title 42 because the Biden administration wasn’t doing anything else effectively to discourage border crossing. It wasn’t the kind of law conservatives wanted, but it was the last bastion of enforcement left. And now there won’t be anything at all. — Ed]