Now halfway through the term of President Joseph Biden, his Border Patrol agents arrested a record 2.2 million immigrants in 2022 at the border with Mexico. Nearly half were deported back under Title 42, a 1944 law invoked in March 2020 by then Centers for Disease Control and Prevention Director Robert Redfield, with the approval of President Donald Trump.
The goal isn’t to expel all immigrants, but to control the flow of immigration to meet demands by the bosses for cheap labor and to reinforce the pariah status of undocumented workers in the U.S.
The capitalist rulers’ profit-driven immigration policies are a deadly threat to the working class. Charting a course to overcome the divisions that bosses foster between immigrant and native-born workers is essential to strengthening our unions.
The invocation of Title 42, in the name of preventing the spread of COVID-19, suspended laws permitting asylum-seekers to stay in the country while their claims are reviewed. It gave Border Patrol agents authority to capture and return them to Mexico immediately. It has accelerated deportations, and the number of people attempting repeated border crossings exploded. Biden continued the policy when he took office.
Up to 8,000 people crossing the border were arrested every day last month. Tens of thousands more — many from Nicaragua and Haiti — remain in squalid conditions in Mexico waiting to cross. They had hoped Title 42 would be revoked, making it easier to get in and stay.
In fact the Biden administration moved in April to end the use of Title 42, and replace it with other measures to limit immigration, including expanding facilities at the border to hold 18,000 immigrants. But the move was challenged in court and Title 42 remains in place.
Today there is no rising, fighting labor movement to unite and organize workers and farmers to resist joblessness, high prices and government repression nor are there revolutionary struggles in the countries these toilers come from. As a result, growing numbers look to the U.S. in the hope they can find work here and make a better life for themselves and their families.
The number of Venezuelan and Haitian immigrants crossing the southern border has fallen after Washington adopted some programs allowing more people from these countries to apply for legal entry. But this has done nothing to dent the overall surge of immigrants, including from Mexico, to the U.S. border, nor the rulers’ use of Title 42 to expel them.
In November federal Judge Emmet Sullivan ruled that Title 42 should be overturned as “arbitrary and capricious,” but the Biden administration appealed. On Dec. 27 the U.S. Supreme Court temporarily put a hold on Sullivan’s ruling.
Blow to constitutional freedoms
Democrats spent years denouncing Trump for his immigration policies, saying they led to children being locked in cages. Biden postures as more humane and as an opponent of Title 42. But, because of the Supreme Court decision, he says, “we have to enforce it,” even though the Supreme Court doesn’t actually mandate him to do so. The justices will review Title 42 in a couple months. And if they end it, Biden’s administration says it will increase its use of “expedited removal” — allowing cops to deport immigrants without access to a lawyer or a court hearing.
The Supreme Court’s decision, like Sullivan’s ruling overturning Title 42, is an example of unelected judges acting as if they were legislators. Pressure on courts to act this way will mount, especially from Democrats, as neither the Democratic nor Republican Party — the two main parties of the capitalist rulers — are able to win enough votes to get their policies adopted in a divided Congress.
But each time a court usurps the authority of Congress, it deals blows to the division of powers between the three branches of government — the legislature, executive and judiciary — set by the Constitution. It sets a precedent that the rulers can and will use to weaken the political reach of working people.
Justice Neil Gorsuch, a Trump appointee, voted with the three liberal judges against the ruling. In a dissenting opinion, he notes that the 19 state governments that filed suit to assure continued use of Title 42 argue that “policymakers have failed to agree on adequate measures to address” the crisis at the border.
But “courts should not be in the business of perpetuating administrative edicts designed for one emergency” — the pandemic — “because elected officials have failed to address a different emergency,” he says “We are a court of law, not policymakers of the last resort.”
Course to unify working people
The deepening crisis of capitalism worldwide and absence of any revolutionary leaderships that present a road forward for working people in the semicolonial world means many toilers will look for ways to get into the U.S. to escape from economic misery and state repression. In fact these fellow workers face similar challenges as working people do in the U.S. — the need to organize independently of the bosses and to fight to defend our class interests.
Liberals and middle-class radicals offer a number of panaceas to resolve this crisis, including a call to throw open U.S. borders, to abolish Immigration and Customs Enforcement or other reforms to the U.S. rulers’ immigration setup. None offer a way forward.
Under capitalism workers compete for jobs. Opening the borders would vastly intensify that competition, fueling unemployment and spreading misery among working people, immigrant and native-born alike.
“Fighting for working-class solidarity requires demanding an amnesty for all undocumented workers in the U.S. today,” Ilona Gersh, Socialist Workers Party candidate for Chicago mayor, told the Militant. “Strike battles for better wages and conditions tend to pull working people together in the face of the bosses’ attempts to divide us,” Gersh said. “The battle to win the labor movement to defend immigrant rights is inseparable from the fight to build, extend and strengthen our unions.”