Every Emergency Needs to End, Even COVID-19
Conditions have changed, and powers designed for crises are too easily abused.
The Biden administration plans to send additional active-duty troops to the border with Mexico in anticipation of a migrant surge up to and after May 11. On that day, the White House’s activation of Title 42—the 1944 law that allows the quick expulsion of immigrants to stop the “introduction of communicable disease” during a public-health emergency—will expire, along with most other emergency measures dating back to the start of the coronavirus pandemic. Invoked by President Donald Trump in early 2020, and clearly aligning with his overall approach to border enforcement, Title 42 helped curb the flow of migrants into this country by essentially halting the admission of people seeking asylum. The policy’s end is widely expected to accelerate the movement of migrants hoping to take advantage of what they will view, and what smugglers will portray to them, as more permissive borders.
There is a crisis at the country’s southern border—a humanitarian crisis, a public-safety crisis, a social-services crisis. But it is not a pandemic-related public-health crisis; the virus is circulating widely in the United States regardless of whether migrants enter the country.
Last month, President Joe Biden signed legislation ending the national COVID-19 emergency period. When the Department of Health and Human Services lets the federal public-health emergency for COVID-19 expire next week, nearly the full array of policies that accompanied the government’s emergency response will vanish. Because the COVID crisis led to an expansion of social-welfare benefits and access to free testing, some left-leaning health advocates have lamented the end of the official emergency. But Title 42 is as much a part of the pandemic response as was an expanded safety net. The immigration policy demonstrates that emergency powers can also be used for ends that disturb or appall progressives—which is why people from across the political spectrum should be wary of extending those powers indefinitely. Whether the restrictive border-enforcement strategy since 2020 is good or bad is a matter for our normal political process—not public-health powers—to settle.
America has a lot of problems, but not all of them are crises. Emergency laws, which allow presidents to bypass standard legislative and regulatory channels in times of need, should not be a pretext for the left or right to impose its favored policies by fiat. The end of the public-health emergency is a welcome and necessary change. It’s welcome because it captures the reality of a receding pandemic; as of late last month, about 150 Americans a day were dying of COVID-19, a tragic number but one down substantially from a peak of more than 4,300 in early 2021. And the change is necessary because it requires us to stop trying to fix long-standing public-policy challenges through emergency powers.
Crisis management wasn’t designed to save America from itself. The field has a very specific job: When an event disrupts the core capabilities of an institution or entity, as a deadly respiratory virus with no treatment or vaccine did to the United States and its health-care system in early 2020, the government has the ability to make demands that the public otherwise wouldn’t tolerate. But as conditions on the ground change—as the search-and-rescue efforts that follow an earthquake or a hurricane give way to rebuilding—officials must relinquish their enhanced authority.
The past half century is replete with examples of measures that far outlasted the crises that inspired them. Aggressive law-enforcement provisions of the post-9/11 PATRIOT Act continue to be used in investigations unrelated to global terrorism. Similarly, the FDA’s prohibition against blood donations by gay or bisexual men began in the early 1980s, during the AIDS epidemic. The policy persisted for decades, despite changes in science and advances in blood-testing technology, and only this year did the FDA propose a rule that did not require men who have sex with men to abstain if they want to qualify as blood donors. Emergency rules have a way of becoming permanent unless they are allowed to expire.
The failures of America’s health system and Congress’s inability to pass comprehensive immigration reform were evident long before the coronavirus arrived. A common saying in public-policy circles holds that we should never let a crisis go to waste. Natural disasters and pandemics expose the inequities in society and the dysfunction in government, and sudden adversity gives communities the chance to end policies and practices that weren’t working to begin with. But complex problems typically can’t be solved through the application of emergency powers. My own view is that, although the emergency social-safety provisions helped those most in need, the use of Title 42 was a brutal and unforgiving policy that essentially ended asylum in the United States.
The Biden administration—which must try to manage the flow of migrants under existing immigration law—has recently proposed new border-enforcement regulations that severely curtail asylum applications by those who arrive at the border illegally. These stricter policies mirror many aspects of Title 42, but they will have to be enacted through the standard regulatory process, which allows the public to comment; enduring changes in immigration policy must come through the legislative branch.
For better or worse, if our democracy is too broken to produce workable policies on that or any other issue, then a crisis isn’t going to fix it. In the meantime, the only way to prevent the abuse of exceptional powers is to formally abolish them. The COVID emergency ends May 11. America’s remaining woes are ours to fix, or not.