On Friday, a federal judge appointed by former President Trump granted President Biden and Democrats a bizarre reprieve.
Judge Robert R. Summerhays issued a preliminary injunction Friday afternoon preventing the White House from lifting Title 42, the controversial measure that has been used to turn back migrants and people seeking asylum at the southern border.
Biden intended to end the measure on Monday. But his plans to do so had prompted a near-mutiny within Democratic ranks, amid both practical and political fears.
There are concerns about the willingness of government agencies to deal with a new massive influx of migrants – which is expected to reach 18,000 a day.
There are also fears about the political power of the issue and its ability to be weaponized by the GOP as the midterm elections approach.
Democrats already face a grim environment in this election, with Biden’s approval ratings at low levels and inflation at its highest since the early 1980s.
The judge’s injunction can only buy the Biden administration time. It prevents the administration from lifting the policy while an underlying case, which 24 GOP-led states have sued, is decided.
But for now, it pulls the president off a painful hook.
Biden had been caught between the growing chorus of Democrats calling for the extension of Title 42 and other voices — both in his party’s mainstream and among the activist base — who think his termination is already overdue.
Democratic senators facing tough re-election battles this fall have been particularly at the forefront of resisting Biden’s plans.
They understand Sens. Mark Kelly (Arizona), Maggie Hassan (NH), Catherine Cortez Masto (Nev.) and Raphael Warnock (Ga.). Some liberal-leaning candidates have also expressed doubts, including the party’s Senate candidate in Pennsylvania, John Fetterman, and Wisconsin Lt. Governor Mandela Barnes, who is also a Senate candidate.
On the other side of the equation, Senate Majority Leader Charles Schumer (DN.Y.) has called for an end to Title 42, as have both New Jersey Democratic Senators Cory Booker and Robert Menendez.
The judge’s ruling at least allows Biden to say — for now — that he tried to end Title 42 — without having to face the consequences immediately. Politically, this may not be the worst position to be in.
Keir Murray, a Texas-based Democratic strategist, told this column, “Among the Democratic base contingent who strongly believe Title 42 should be repealed, if you can put it on a judge, that removes the guilt from their eyes – while on the practical matter, not having to deal with the fallout.
Murray, who emphasized that he was talking about the political implications of the Title 42 debate rather than the morality of politics, added:
“I think it’s a political vulnerability [for Democrats] simply because there has been a surge in people coming to the southern border at a time when we are still recovering from COVID. There is a lot of concern about public safety in general across the country. This creates a political challenge for Democrats, absolutely.
The challenge is particularly acute due to the large number of border crossing attempts in recent months. Recently released figures for April saw that number rise to 234,088 encounters – the highest number ever.
Opponents of lifting Title 42 note that if the Department of Homeland Security’s projection of up to 18,000 crossings per day were to become reality, that would amount to more than 500,000 crossings per month.
Republicans blasted the White House, seeking to label the situation a “Biden border crisis.” These attacks – and the realities of the situation – are having an impact.
In a Quinnipiac University poll released Wednesday, only 28% of adults approved of Biden’s handling of the situation on the southern border, while 58% disapproved. Among independent voters, 61% disapproved of Biden’s handling of the issue.
Matt Mackowiak, the chairman of the Republican Party for Travis County in Texas, said that regarding the politics of the matter, “all you need to know is that vulnerable Democrats in the House and Senate opposed revoking Title 42. There’s a huge risk if Biden goes through with this.”
Speaking moments before the judge’s decision was announced, Mackowiak predicted that Biden is “hoping a judge blocks it.” That way he can tell progressives he tried, but not actually do it.
In a statement Friday evening in response to the judge’s decision, White House press secretary Karine Jean-Pierre noted that the administration “does not agree with the court’s decision” and that the Department of Justice will appeal. But she also said that, “per the court’s order, the Biden administration will continue to enforce” the settlement until the appeal is resolved.
Richard Murray, a senior fellow at the University of Houston’s Hobby School of Public Affairs, noted that the whole Title 42 debate was “a big deal if you’re in Texas, with our 1,800-mile border.”
Had the policy been lifted, he added, “all of this will escalate.”
It won’t happen yet.
But the White House got only temporary respite from the brewing storm.
The Memo is a column reported by Niall Stanage.