First 100: Are Biden’s Policies Contributing to Chaos at the Border?

Plus: The latest on protecting $1,400 checks from debt collectors.

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The Chief

One of the biggest stories in the country right now involves the U.S.-Mexico border, though I don’t think it’s been adequately captured in the traditional media. There, the debate is over the influx of migrant children, how to deal with the issue without falling into a political trap about “kids in cages,” and whether Democrats are growing frustrated with President Biden on the issue. (I’d prefer more talk about who’s making money on housing these kids, but so far that’s been limited to the progressive press.) Less has been made about why we’re only talking about unaccompanied minors, and the policy choices that have gone into that outcome.

I asked our immigration reporter Marcia Brown, who just got back from the border, to sketch out what’s really going on, and why an obscure order Trump instituted (and Biden maintained) called “Title 42” is a primary cause for the chaos. Marcia has a story in our next print issue that we published online today about this topic. Here she is:

The Biden administration is scrambling to adequately house and care for unaccompanied migrant children, and Republicans see the situation as their first opening to damage the new president’s standing. House Minority Leader Kevin McCarthy traveled to the border on Monday, pronounced the situation “human heartbreak” and placed all the blame at Biden’s feet. Manufacturing a crisis is a useful distraction to keep Democrats on the defensive as they attempt to pass comprehensive immigration reform in Congress. This week, Democrats are trying to pass two major bills on immigration in the House. 

The influx of unaccompanied minors has certainly consumed a lot of the administration’s attention. The Biden administration has directed FEMA to assist in sheltering the children, and a 3,000-bed facility in a convention center in Dallas has been readied to house migrant teenagers. Even Speaker Nancy Pelosi has called it a “humanitarian crisis.” Thousands are held in Border Patrol facilities --which some immigrant rights advocates view as inhumane for housing children--beyond the 72-hour legal limit as the government scrambles to accommodate them. 

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Although the numbers are higher now, they are certainly not the highest the government has seen. While more than double the number of unaccompanied children arrived in February 2021 as in the same time last year, the surge is  still below levels seen in May 2019. 

The situation at the border is the result of a combination of factors. First of all, the numbers of new arrivals always rise around this time of year as temperatures rise. But there are other reasons why the numbers may be higher this year. Part of it is messaging confusion: Migrants and asylum seekers believed Biden’s change in rhetoric to reflect a more distinct change in policy. So far, this hasn’t been the case. The border is not open, as the administration has repeatedly stated. 

Part of the problem is also that the Biden administration is actually attempting to follow the law and humanely process children and get them to sponsors, but they are already above the legal limit of children they are allowed to hold. Another reason is that Biden is saddled with a backlog of asylum seekers from pre-pandemic Trump policies, and there’s a backlog of migrants who were waiting to make the journey until it seemed like they might have a more favorable chance.

But a bigger, less commonly told story is that the Biden administration, while dismantling part of the Trump immigration apparatus, has left parts of it in place. Most significantly, Biden has maintained a CDC health order under Title 42 of the U.S. code. Implemented in March 2020, the order blocks virtually all immigrants and asylum seekers from entering the US. It has resulted in hundreds of thousands of expulsions and deportations, some over the border to Mexico and others as far away as Haiti. Health officials have decried the order for its bogus public health rationale, and immigrant rights’ advocates have excoriated it, particularly for denying asylum seekers their right to seek asylum in the U.S. (At least one court has said the order is illegal but the ruling was overturned and it so far remains in place.)

Biden did make one major change to how the order is implemented: Children are exempt from being deported under Title 42. Some advocates say that this may be contributing to the rise of unaccompanied minors at the border, as parents elect to send their children over the border without them. 

The same thing happened under the Remain in Mexico program, which forced asylum seekers to wait in Mexico for months or years until their asylum hearings. Another exception is in the Mexican state of Tamaulipas, where a Mexican court has banned the U.S. from deporting families with children under age 7. But this is only applied in Tamaulipas, not in other Mexican border states. 

In short, leaving Title 42 in place has and is contributing to border chaos and to the rise in the number of unaccompanied children in government custody. Biden’s administration has given no guidelines on when it plans to roll back this virtual ban on asylum and any other instructions on when change is coming. For the full backstory on Title 42 and how we got here, check out my print piece in our next issue, which is online today. 

Better Late Than Never?

As I’ve been reporting, private debt collectors and banks have not been prohibited from garnishing the $1,400 checks authorized in the American Rescue Plan. There was language in previous bills protecting the checks, but reconciliation rules prevented this bill from including that.

Now I’ve learned that Sens. Sherrod Brown (D-OH) and Ron Wyden (D-OR) have introduced a bill to ensure that the checks won’t be garnished. The Senators teamed up on similar legislation to protect CARES Act checks, which passed the Senate unanimously last summer but inexplicably never got a House vote. The language did make it into the December bill and protected the $600 checks in that legislation.

“We are moving to try to pass unanimous consent as soon as possible,” said Brown spokesperson Alysa James in response to questions. Yesterday HuffPost’s Arthur Delaney got Republicans Mike Crapo (R-ID) and Chuck Grassley (R-IA), senior members of the Finance Committee, on the record saying it’s a good idea to protect the checks. Brown and Wyden are in touch with counterparts in the House, who they hope will pass the fix quickly.

And “quickly” is the operative word. There’s no way to retroactively claw back money from a debt collector with a judgment once they garnish a bank account, and that process is close to instantaneous as soon as the $1,400 flows in. Given that, I asked James if the Biden administration should pause payments until this is worked out. No, she said. “The Administration should continue to try to get the stimulus payments to American families as soon as possible.”

In other words, this is a patch that closes the barn door after the horse has left. It can still protect some payments, however, and prevent a flood of debt collector judgments. We’ll see if Congress can get it done immediately.

What Day of Biden’s Presidency Is It?

Day 57.

Today I Learned

  • Biden came out in support of modifying the Senate filibuster. It’s a big deal, even though it’s not his decision to make. More on this tomorrow. (ABC News)
  • We still have no idea when families will get the advance checks for the expanded child tax credit, and how much they’ll be, and for how long. (HuffPost)
  • I’m confused as to whether this means oil and gas drilling permits on public lands will resume or not. (The Hill)
  • I’ve written about Florida Senator Rick Scott calling on states to reject American Rescue Plan funds. Florida’s governor is having none of that. (Politico)
  • The House is going to pass the reauthorization of the Violence Against Women Act today. That seems like something that can get 60 Senate votes. (CBS News)
  • Biden’s FTC says it will “get tough” on pharmaceutical mergers. (Wall Street Journal)
  • I figured deputy Labor Secretary nominee Julie Su would get tarred with the unemployment fraud scandal in California; she led the state’s Labor Department. (Sacramento Bee)
  • Democrats unclear on whether Biden will lift the refugee admission cap. (HuffPost)

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