Two senators are working on legislation that would replace Title 42 for two years once the Trump-era health policy expires next week.

The legislation, co-sponsored by Sens. Kyrsten Sinema (I-Ariz.) and Thom Tillis (R-NC), would still give border authorities the power to expel migrants without first hearing their asylum claims.

However, unlike Title 42 — which allowed summary expulsions to protect public health — Sinema and Tillis’ bill would make exceptions for migrants who have critical medical needs or whose return to their home countries would threaten their life, freedom or expose them to torture, a Sinema aide told Politico.

The measure would require 60 votes to pass the Senate, ensuring it faces an uphill climb in that chamber.

The House is set to hold a vote on its own border legislation next week.

The end of Title 42, set for May 11, is expected to trigger yet another surge of illegal migration across the US-Mexico border. Officials say tens of thousands of migrants are already waiting in Mexico for word that the rule has expired.

Meanwhile, in the 10 days leading up to May 1, an estimated 90,000 migrants crossed the frontier and were either apprehended or escaped detection, according to Border Patrol. 

“The already dangerous situation in our border communities is expected to worsen when the Administration ends Title 42 on May 11 without a realistic plan in place to keep Arizona communities secure,” Sinema tweeted Thursday.

“For more than a year, I have urged the Administration to prepare for the anticipated surge of migrant crossings when Title 42 ends.

“Not having a workable plan risks the safety and wellbeing of Arizona’s border communities and the migrants themselves.”

“Obviously, the border is not secure,” Sinema told Fox News on Tuesday.

What is Title 42 and what does its end mean for US border immigration?

What is Title 42?

Title 42 is a federal health measure enforced by the US Border Patrol. It allows the agency to kick certain migrants out of the US and return them to Mexico. This includes asylum seekers, who under international law have the legal right to make an asylum claim in America.

Currently, migrants who cross the border illegally and who are from Cuba, El Salvador, Guatemala, Haiti, Honduras, Mexico, Nicaragua or Venezuela are subject to Title 42 and could be sent to Mexico.

How did Title 42 start?

President Donald Trump invoked the law in 2020 at the beginning of the COVID-19 pandemic, asking the Centers for Disease Control and Prevention to issue the policy. The Trump administration made the case that keeping migrants out of the country would slow down the spread of infections and maintain the safety of federal agents encountering migrants.

What has happened with Title 42 under Biden?

When President Biden took over, he continued to enforce Title 42 with one important change from his predecessor. Biden said Border Patrol agents were only allowed to expel migrants from certain countries under his direction. That meant migrants seeking asylum from countries like Cuba and Venezuela could still seek asylum if they arrived at the border and stay in the US while their cases were decided in court — unless they had a criminal record.

What is happening with Title 42 now?

Title 42 is supposed to be a health policy, not an immigration law. It will end at 11:59 p.m. May 11, when the Biden administration ends all COVID-19-related policies.

Why is it controversial?

Many have called for the policy’s end, saying it’s illegal and that international law guarantees people the right to seek asylum.

Others, like Texas Gov. Greg Abbott, warn that the southern border could see up to 13,000 migrants per day crossing with the intention to stay in the country when the measure ends.

What would the end of Title 42 mean for immigration into the US?

It’s unclear exactly how many people have been expelled under Title 42 because there have been scores of people who have attempted to enter the country numerous times and been rejected again and again, but the US Border Patrol said it made an all-time high of more than 2.3 million arrests at the border in the last fiscal year. Forty percent of people who were expelled from the country were ejected under the rules of Title 42.

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“Anyone with eyes can see that.”

Title 42 was first implemented in March 2020 amid the onset of the COVID-19 pandemic.

Its expiration, initially planned for May 23, 2022, was delayed following court challenges.

Ultimately, the Biden administration triggered the end of Title 42 by announcing the public health emergency brought on by the pandemic would end on May 11.

Democrats from border states and cities afflicted by the crisis, such as New York City Mayor Eric Adams, have slammed the Biden administration over its immigration policy — while Republicans including Senate Minority Leader Mitch McConnell (R-Ky.) and Sen. Lindsay Graham (R-SC) have pleaded with the White House to extend Title 42.

In response to mounting pressure, Biden announced Tuesday that he will dispatch 1,500 active-duty troops to the southern border ahead of Title 42’s expiration, though those soldiers will perform administrative tasks rather than actual enforcement.

Meanwhile, Mexico announced this week it will continue accepting Cuban, Haitian, Nicaraguan, and Venezuelan migrants who are expelled from the US even after Title 42 ends.

In exchange, the US agreed to continue letting in over 30,000 migrants a month from those countries via a humanitarian parole initiative. 

During fiscal year 2022, while Title 42 was still very much in effect, migrant encounters at the southern border topped 2.3 million, according to US Customs and Border Protection. 

Representatives for Sinema and Tillis did not immediately respond to requests for comment.