Scenes of chaos at the border, even if short-lived, could be damaging for Democrats heading into a hotly contested midterm election, even though many of them, including the Senate majority leader, Chuck Schumer of New York, pushed for lifting Title 42 earlier this year. Republicans have made border security a core campaign issue, and have demanded a vote on a Senate amendment that would ensure the public health order remains in place before voting on a package that allocates funds toward vaccines, therapeutics and other coronavirus treatment. Some Senate Democrats have also expressed concerns about the administration’s plans to lift the order, making the amendment likely to pass.
The Justice Department could seek an emergency stay of Judge Summerhays’s injunction from the U.S. Court of Appeals for the Fifth Circuit, which would almost certainly turn it down, and then the case could land in the Supreme Court. Alternatively, the administration could wait until Congress votes on the amendment, and if it passes, ask the judge to set aside the case as irrelevant.
In April, the Department of Homeland Security said that it was not possible to predict the number of migrants who would show up at the border after Title 42 expires, and that it could vary widely from one section of the border to another.
Homeland Security officials have said they were preparing for as many as 18,000 migrants a day, while most predictions hover around 12,000.
The Biden administration unveiled a plan in April to handle the influx by increasing border personnel, streamlining migrant processing to prevent overcrowding and imposing strict penalties on border crossers who cannot establish a legal basis to remain in the United States.
The plan, a 20-page memo, also targets migrant smugglers for criminal prosecution, outlines a new collaboration with nonprofits that shelter migrants after they are released from immigration custody and coordinates more widely with countries through which migrants pass en route to the United States
Alejandro N. Mayorkas, the homeland security secretary, has defended the strategy while conceding that the border could come under more strain and asserting that the broken immigration system requires an overhaul, which Congress has failed to deliver for decades.