Ken Cuccinelli Warns of Catastrophic Consequences to Rescinding Title 42 at Border

Douglas Blair / May 23, 2022

Editor’s note: This interview was recorded before a federal judge decided Friday afternoon, in a lawsuit filed by two dozen states, to block the Biden administration’s plan to rescind Title 42.

In the face of the worst crisis our southern border has seen in decades, President Joe Biden has said he intended to rescind the public health rule known as Title 42 by Monday, May 23. U.S. immigration officials have invoked Title 42 to quickly remove illegal migrants over concern for the spread of COVID-19 and other communicable diseases.

Now, even some Democrats are wary of the Biden administration’s plan to end the public health measure at the northern and southern borders and have joined Republican lawmakers in cautioning officials against getting rid of it.

Ken Cuccinelli, a Trump administration homeland security and border official who previously was the Republican attorney general of Virginia, sees disaster on the horizon if Title 42 goes.

“If both the flow goes up to the worst prediction and Title 42 comes down, six times as many illegals will be staying in the United States as are happening on a daily basis today under the current open-borders Biden policy,” Cuccinelli says.

Cuccinelli joins “The Daily Signal Podcast” to discuss the consequences of rescinding Title 42, as well as to offer solutions for states to help fix the border crisis.

Listen to the podcast or read the lightly edited transcript below.

Doug Blair: My guest today is Ken Cuccinelli, former acting deputy secretary of the Department of Homeland Security and former acting director of U.S. Citizenship and Immigration Services, as well as senior fellow for immigration and homeland security at the Center for Renewing America. Ken, welcome to the show.

Ken Cuccinelli: Good to be with you.

Blair: Absolutely. So immigration seems to be one of the hot-button topics right now, and we are actually currently experiencing what could be construed as one of the worst crises at the southern border we’ve ever seen. Where is [President Joe] Biden failing the most?

Cuccinelli: Wow, let me count the places. I mean, the numbers don’t tell the tale of the failure here and failures suggest, well, not succeeding. This isn’t failure to the Biden administration. What you’re seeing at the border is affirmative policy. It is an open-borders policy.

So they’re succeeding in an open-borders policy. They are failing from the perspective of those of us who respect our laws. And this last month, over 230, even want to say 234,000 invaders cross the border illegally, a record of sorts, but that doesn’t tell the tale.

The last time we had numbers in the 200,000 range over two decades ago, it was overwhelmingly adult Mexican males who can be turned around and repatriated to Mexico in about two hours. That’s what our Border Patrol facilities were built for. That’s why they don’t handle families well. But now we have families coming from all over the world, Central America most numerically, and our entire system is not set up to receive that.

So the logistics of what we’re dealing with now, if you were to compare to a 200,000-person month in 1998, is more like 800,000, 600,000 in terms of the logistical challenge presented to the Border Patrol and to [Immigration and Customs Enforcement], to law enforcement and the federal authorities along the border. And that is, as I said, intentional.

So, interestingly enough, when you ask the question, “Where are they failing the most?”, they are systematically tying the shoelaces together, so to speak, of the Border Patrol and of ICE to make it as difficult for them to accomplish their missions as possible.

So when you hear about reorganizations, it is intended to drive up bureaucratic slowdown and to make deporting people back to their home country more difficult, and they have succeeded in that. They are on the verge of what would be the singular answer to your question and that is taking down Title 42.

What people don’t realize is, as bad as it is at the border, still today, over 50% of illegal border-crossers are nearly immediately sent back across the border under Title 42 authority. This is public health authority. It’s not immigration law. Oh, about 55%.

So with absolutely no change in the flow of illegal aliens coming into the United States monthly, you will see more than doubling the number staying in the United States, even under the disastrous circumstances we’ve been seeing under the Biden administration. So they’re literally going to more than double it without any change in the flow.

Of course, what we know is people respond to incentives. When they know the border is open and they can get in, they will come in greater numbers. So the estimates being as high as two and a half times what we’re seeing now, and our system can’t handle what it’s getting now. So the idea that it can’t handle what’s coming is sort of a foregone conclusion.

Blair: Right. Now, Title 42 does seem to be the kind of most important immigration policy that we’re looking at right now. You’re saying that double the amount of immigrants would come in simply by removing this one policy from the equation.

Cuccinelli: One policy from the equation, that’s right. And that is, again, with no change in the flow.

What I hear talked about so much in the news is, “Oh, we’ll go from 7,000 showing up at the border every day to 18,000.” OK. “We’re also going to go from 3,000 staying in the United States to 18,000 under those numbers.”

So in that circumstance, if both the flow goes up to the worst prediction and Title 42 comes down, six times as many illegals will be staying in the United States as are happening on a daily basis today under the current open-borders Biden policy.

Blair: Now, to play devil’s advocate for a second, many might argue that as COVID starts to kind of wane away, Title 42 as a health measure isn’t necessarily something we need to be using. Is Title 42 the thing that we need to keep in place, or is it more that we’re using this as a tool to expel migrants quicker?

Cuccinelli: So, two things. First of all, as long as any American anywhere is mandated to do anything because of COVID, we should have Title 42 on the border. It should be, literally, the last COVID restriction to come down, the very last one at our borders, and that’s for obvious reasons.

So long as American citizens have to adjust their lives, i.e., give up liberty—because that’s what it is. When you cede to government power, they take it from you, it is a zero-sum game. And as long as that’s going on anywhere, if TSA is suggesting masks, [it] is enough to keep Title 42 up and enforced on the border.

Literally, any restriction or suggestion of restriction at the smallest school board in the smallest county in the smallest state in America, then Title 42 should be in place. It is a public health order. It is not something you just make up to contend with the immigration situation and the invasion situation on our southern border.

But it is a very useful and effective tool.

I will tell you that when I was the acting deputy secretary, we were turning around not 55%, but 85%, 90% or more … of illegal border-crossers. We were doing it in under two hours and we were doing it without bringing people into Border Patrol facilities, which is a model for another approach that I believe states can take that I’ve advocated for, that being that state governors in their role as commander in chief can respond to this invasion under Article I, Section 10 of the Constitution by repelling the invasion.

How that would look logistically is just state officials doing what the federal officials have been doing under Title 42, but under another, different authority, this being the authority of the Constitution.

Blair: Well, since it looks like the Biden administration is going to move forward and remove Title 42 protections and make it more difficult to expel migrants at the southern border, what needs to be put in place to prevent that increase of at least sixfold migrants from entering the country?

Cuccinelli: Anything we might talk about isn’t going to happen with this Congress. I mean, just isn’t, unless Republicans in the Senate stand together. And on immigration issues, let’s not forget, there are plenty of Republicans who, for all their rhetoric, are effectively pro-illegal immigration. Then there’s that many of them don’t want to appear mean and they instantly succumb to the ad hominem attacks, which is all the left has in defending these policies.

People can’t see me doing air quotes here on “defending,” but the fact of the matter is that’s the only possibility, if they can get a Democrat or two to agree with them and use budget language to force the administration to use emergency removal powers across the board to do other things. There’s nothing in immigration law that deals with illegal entrance, other than Mexican citizens, with the kind of speed that Title 42 does. So when Title 42 comes down, there’s nothing that will work as efficiently.

They also, and this leads back in time to them getting rid of the “Remain in Mexico” program—which was the most effective deterrent put up in the Trump administration. It was an effective deterrent because everybody coming up from Central America knew they couldn’t get in and that they would have to wait for their hearing and they were claiming asylum.

It’s important to realize the people who decide asylum cases are career immigration officers. They’re not politicals. It wasn’t Bill Barr, it wasn’t me or Chad Wolf or Mark Morgan. That isn’t who decides these cases. It is the same people day in and day out who decide them all over the country.

I tell you that to tell you this. The asylum grant rate coming out of the Remain in Mexico program was, as I recall, between 1% and 2%, whereas the overall grant rate was something like 25%.

So our theory at the outset was that all of these people coming up are gaming the system and the results proved we were right. So when they basically were confronted with the reality that they couldn’t game the system, in other words, they’d have to wait outside the United States for their hearing to conclude and they knew they weren’t legitimate asylees, many of them went home.

Then those cases that were concluded, as I told you, there was a 1% or 2% finding of actual meeting the conditions of asylum. There’s nothing like that left in the Biden administration. They took that down first. Now they’re taking Title 42 down. So, the next best program is already gone. I would say this puts more and more and more and more pressure on the states.

One interesting result may be in the governor’s race for New Mexico this year. I’ve not listened to yet the Republican candidate there, but this is an obvious opportunity for a candidate to say, “Well, I’ll stop people at our border,” because they have the authority to do that. It is controversial, I grant you that, but in light of an intentional failure—is that a legitimate phrase?—but the federal government is obligated under the guarantee clause to protect all 50 states from invasion.

And at least for the border states, it can’t be said that they’re doing that. They’re inviting the invasion. So in that situation, the governors have the authority to repel the invasion themselves under Article I, Section 10. At the Center for Renewing America, we’ve been pushing very hard that they should be doing that.

And you get governors like [Texas Gov. Greg] Abbott, [who] say, “I’m doing everything I can.” Well, no. No, actually, you’re not. You’re doing some things.

But as we saw in the numbers this month, highest ever after a month-plus ago, a month or so ago, Gov. Abbott had a press conference and said, “We’re going to take these unprecedented,” that was his word, not mine, “unprecedented efforts.”

Well, they obviously didn’t slow the flow at the Texas border and it’s no really difference no matter where you are in the border. Operation Lone Star, cool name, Lone Star, we got our cowboy hats on, has done nothing. Sounds cool. Lots of photo ops, lots of photo ops for Gov. Abbott. That’s what it seems to be for. [Arizona Gov. Doug] Ducey has his own Border Strike Force. You notice how cool the names are, but they do nothing because these governors have failed to use all of their authority. They refuse to do it thus far.

In Arizona, you have at least one candidate, Kari Lake, running saying, “I am going to do this.” Unless some other candidate steps up and says they’ll do it, she will be the next governor of Arizona. That’s my prediction.

As you note, at the beginning of our conversation, immigration is an issue of great interest to Americans right now. It shows up second in a lot of polling. Even after the Dobbs draft was leaked, it still shows up as second. And you can imagine how those polling numbers differ in Arizona, New Mexico, Texas. And so, much bigger issue there. And to have local authorities who are failing intentionally to use the authority they have is creating a small wave of voters who can make the difference in those primaries, in those elections.

Blair: As we wrap-up here, I briefly want to ask you, it seems like you’re discontent with a lot of the work that the states are doing right now to stem the tide of illegal immigration in their borders. What can they do? What’s one thing that they could do right now that would start to fix that problem?

Cuccinelli: Well, really the only thing to do, for instance, Texas has done a bunch of things. They’re using criminal trespass. They’re building more wall, which is helpful, but only if you have enforcement connected to it. Enforcement means with a consequence resulting in removal. And they have that power and Greg Abbott has so far declined to use that power.

The way it works is we’ve all been told with authority comes responsibility, so Abbott denies that he has the authority to avoid the responsibility. Gov. Ducey is doing the same thing over in Arizona. And yet they do have the authority and they refuse to use it. I think that that’s going to be harder and harder to maintain as the federal government opens the border more and more and more.

Even as a political matter, it’s amazing to watch them sort of point their gun at the bottom of their own boat and just keep pulling the lanyard.

And Democrats have disagreed with the Biden policy since last spring, 2021. Literally within about two months of Biden implementing these new policies, Democrat voters by a substantial margin have disapproved of his immigration policies. So it isn’t just Republicans. It isn’t just independents. It’s Democrat voters.

So you got to ask yourself, “What’s going on here?” And what’s going on here is the truly radical left, the Stalinist left of the Democrat Party, has the wheel in the Biden administration.

We see it in places other than just immigration. We see it in energy policy and environment. We see it in their treatment of 75 and a half genders and so forth and cultural issues as well. They are so far out of the mainstream and the immigration area is no different.

But until states actually return people—if you’re sitting in another country thinking about coming to America and you know if you come to the Texas border, they’re going to put you back in Mexico; if you come to the Arizona border, they’re going to put you back in Mexico. Until you believe that, which means regular and reliable returns, you’ll come.

Without that, and the states can do it, there won’t be a change in this flow. That’s just a fact and we’ve proven it over and over and over.

Blair: Absolutely. That was Ken Cuccinelli, former acting deputy secretary of Homeland Security, former acting director of U.S. Citizenship and Immigration Services, as well as senior fellow for immigration and homeland security at the Center for Renewing America. Ken, thank you so much for your time.

Cuccinelli: Hey, great to be with you.

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