With Senate up for grabs, moderate Dems warn Biden against lifting Title 42, inciting border surge

With partisan control of the evenly split U.S. Senate up for grabs this fall, some moderate Senate Democrats are joining Republicans in warning President Biden not to lift the Title 42 policy, in the hopes of preventing midterm election losses.

TItle 42 is a public health authority that permits border enforcement authorities to promptly expel illegal immigrants to prevent the spread of communicable diseases.

Sen. Mark Kelly (D-Ariz.) and Sen. Maggie Hassan (D-N.H.) — who both face competitive reelection battles this fall — along with Sen. Joe Manchin (D-W.Va.) and Sen. Jon Tester (D-Mont.) have all expressed concern that ending the policy would lead to a major surge of migrants trying to enter the U.S.

These senators have teamed up with Republicans to propose a bill that would require the Biden administration to formally notify Congress of its intention to lift Title 42 followed by a 60-day waiting period before the CDC ends the policy.

The Republicans and moderate Democrats behind the legislation are attempting to add language from the bill to a $10 billion COVID-related federal aid package moving through Congress.

Kelly, in particular, is running in a competitive Senate race in the swing state of Arizona. He wants to see a more concrete plan from the administration regarding lifting Title 42.

"There is still not an adequate plan or sufficient coordination to end Title 42," Kelly said.

Sen. Raphael Warnock (D-Ga.), who is running in a traditionally red state, said it's not the right time to lift Title 42.

"We have not seen a detailed plan from the administration,” he said. "We need assurances that we have security at the border and that we protect communities on this side of the border. I think this is the wrong time, and I haven't seen a plan that gives me comfort."

The Centers for Disease Control and Prevention (CDC) has said it plans to rescind Title 42 on May 23.

Rep. Tom O’Halleran (D-Ariz.) joined a bipartisan House effort to prevent the lifting of Title 42 until the Biden administration puts forth a concrete plan to handle the expected surge at the southern border. According to his office, the bipartisan legislation would "prohibit the Biden Administration from ending Title 42 until 60 days after formally ending the COVID-19 public health emergency declaration."

"Any changes to the current system must be robustly detailed and developed in consultation with local leaders, community advocates, and governmental entities in border states like Arizona," O'Halleran said in a statement. "In requiring this concrete plan, we're working to create a transparent process that will better ensure the health, safety, and humane treatment of kids and families on both sides of our southern border.”

Oklahoma GOP Sen. James Lankford and other GOP lawmakers want to see Title 42 extended. 

"This DHS in the Biden administration, its own numbers estimate, a million people will illegally cross the border within six weeks at the moment that they drop Title 42," Lankford said. "They're aware of what they're about to release. They've had a year to be able to plan for it, and they've chosen not to."

Sen. Catherine Cortez Masto (D-Nev.) is also opposed to ending Title 42 this coming May.

"I think it's just wrong to do it without a detailed plan," said Masto, a first-term senator facing a competitive reelection battle this year. "We always know right around summer there's a surge."

U.S. Border Patrol union chief Brandon Judd recently said drug cartels will control the U.S.-Mexico border if Title 42 is lifted.

Homeland Security Secretary Alejandro Mayorkas told CBS News this week that the U.S. could "very well" experience a spike in border arrivals but said the administration is developing a post-Title 42 plan.

"We are at the border surging resources," he said. "We very well could [see a surge]. And our job is to be prepared to address it." 

The ACLU and other advocacy groups have favored ending Title 42, arguing that it stops certain migrants from seeking refuge in the U.S. at the southern border.