PAUL RATJE/AFP via Getty Image
- In March 2020, the Trump administration used the pandemic to justify shutting down the asylum system.
- Under President Biden, children and some families are now able to apply for refuge.
- But despite GOP claims, the administration has not embraced a policy of "open borders."
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In times of crisis, foreigners are historically scapegoated by politicians, easy and convenient to blame for the problems that have been allowed to fester here at home – and unable, themselves, to vote the lawmaker out of office.
With Florida now accounting for nearly a quarter of all new COVID-19 cases in the United States, the Delta variant forcing Disney World to bring back mandatory masking, Gov. Ron DeSantis this month blamed the supposedly "open border" policies of President Joe Biden. "Whatever variants there are around the world," he asserted, "they're coming across that Southern border."
It was a jarring performance from a Republican who has balked at basic public health measures, insisting on keeping indoor dining up and running – and maskless – throughout the various waves of the pandemic. He has also barred mask mandates for various local entities and prohibited vaccine passports. DeSantis has even boasted of his own open-border policy, welcoming visitors from across the country to his "oasis of freedom" from generally accepted public health decisions meant to curb our ongoing pandemic.
Viruses do not discriminate on the basis of nationality, but the same cannot be said for politicians.
And it's not just one side of the aisle. Democrats are now in charge of border policy, and while it is not true that they are dealing with it in the exact same way as the Trump administration before it, in many respects that policy is one of continuity, not change: For most people, the US remains closed. And the trickle allowed in is certainly not responsible for more than 20,000 new cases a day in the Sunshine State.
Under a Trump policy called "Title 42," a policy directive issued by the US Centers for Disease Control and Prevention, the Biden administration has denied hundreds of thousands of people their internationally recognized right to seek asylum, immediately expelling them from the country instead. The policy, which effectively closes the border due to the pandemic "is not an immigration authority, but a public health authority," according to the US Department of Homeland Security.
According to The Wall Street Journal, however, that's not how people in government during the Trump years saw it. Last year, the paper reported, the exact same order "was met with deep resistance from senior officials at the US Centers for Disease Control and Prevention and was conceived not by public-health experts but by Stephen Miller," the former president's far-right immigration advisor. And it was opposed at the time by a slew of outside medical experts, who advocated testing and quarantining instead of a blanket prohibition.
The Biden administration has made exceptions to Title 42. Unaccompanied children are no longer subject to the policy. And many families who cross the Rio Grande have been able to stay to pursue their asylum claims - not because the administration would like them to, per se, but because state governments in Mexico are now refusing to accept their return.
There is no reason to believe a child is less likely to carry the virus than their mother or father or a single adult who crosses the border. It's a matter of optics and liberal sensibilities. Sending kids back to be preyed upon south of the border is not a good look; there is far greater tolerance for being inhumane to a grown-up human being who may be fleeing the same violence and political repression, even if this too results in families being separated.
Under international law, this is problematic. Under the Refugee Convention, which the US committed itself to in 1951, signatories are obligated to consider all asylum claims - even in times of war or other "exceptional circumstances," the treaty only allows certain exceptions, on a case-by-case basis, that still require an actual ruling on the asylum-seeker's claim.
"The US has the right to confine asylum-seekers pending COVID testing results, a reasonable thing to do to protect the critical interests of Americans during a pandemic," James Hathaway, a professor at the University of Michigan Law School, told Insider. "But it is unlawful to respond with a blunderbuss-style general policy of closing borders to refugee claimants or refusing to process their claims in the usual way - which is what Title 42 does."
The American Civil Liberties Union agrees: it's suing to stop the order from being enforced.
"We gave the Biden administration more than enough time to fix any problems left behind by the Trump administration," Lee Gelernt, an ACLU attorney, said in a statement, "but it has left us no choice but to return to court."
Legality aside, some medical experts likewise see no more justification for Title 42, now, than when the Trump administration rolled it in March 2020.
"It does feel as if this 'public health' exclusion is a sort of pretext," Jacqueline Bhabha, a professor and scientist at the Harvard T.H. Chan School of Public Health, said in an interview.
In part, because the asylum system was decimated by its predecessor, and already chronically underfunded, the administration has struggled to handle the influx of migrants that it has allowed. Children at one facility in Texas have complained of overcrowding and ensuing depression, while the testing and quarantining of families has been left to nonprofit groups that have struggled to ramp up their own capacity to help hundreds of new people each day.
Republicans have scored points off this "crisis at the border," abandoning the discourse of personal freedom to advocate a heavy-handed response to the spread of the Delta variant: prohibiting the freedom of movement, if not for tourists - most, from around the globe, are welcome to visit Disney World - at least for those seeking refuge.
The logistical challenges facing the Biden administration are real, and not entirely its fault; even the litigious ACLU conceded that time was needed to address them. But the administration appears to have decided to hide behind fears of contagion to justify what is ultimately a public-relations decision: to not exacerbate what it sees as a losing battle over migration.
Pundits can debate whether that is smart politics. But it is not what the United States agreed to at the international level, nor is it internally consistent.
Think, after all, of the children: there is a pandemic, yes, but these kids have fled here for grave reasons - and this White House has determined that the obligation to not return them to danger can indeed be fulfilled while taking steps to mitigate the threat to public health.
It's just unwilling, for now, to extend that logic to others.
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