- More than 10,000 aliens have been summarily deported since the president's Southwest border restrictions went into effect in late March.
- At the present time, CBP is only holding 100 migrants in custody, down from 20,000 detainees at this time last year.
- HHS has issued an interim final rule prohibiting the introduction into the United States of persons from designated foreign countries when necessary to protect the public health in this country.
- That rule is premised on the broad authority contained in 42 U.S.C. § 265.
- Certain key Democrats have opposed that border crackdown.
On Thursday, the Washington Post reported that more than 10,000 aliens have been summarily deported since March 21, the day after the president issued his travel restrictions along the Southwest border to stem the tide of the Wuhan virus. As a consequence, U.S. Customs and Border Protection (CBP) has fewer than 100 detainees in its custody, "down from nearly 20,000 at this time last year during the border crisis." Notwithstanding the implementation of restrictions on movement within most of the United States, key Democrats oppose this action. Those complaints are tone-deaf, to say the least.
As I posited at the time, the president took this action pursuant to the surgeon general's authority under 42 U.S.C. § 265. That provision states:
Whenever the Surgeon General determines that by reason of the existence of any communicable disease in a foreign country there is serious danger of the introduction of such disease into the United States, and that this danger is so increased by the introduction of persons or property from such country that a suspension of the right to introduce such persons and property is required in the interest of the public health, the Surgeon General, in accordance with regulations approved by the President, shall have the power to prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate in order to avert such danger, and for such period of time as he may deem necessary for such purpose.
Normally, I emphasize the highlights of extended excerpts, but this whole provision is a highlight. The law, enacted less than a week before D-Day in 1944, grants the surgeon general sweeping powers to limit movement across the border to restrict the introduction of any communicable disease into the United States.
On March 23, CBP described how and why these provisions would be implemented:
Those encountered between ports of entry after illegally crossing the border similarly will not be held in congregate areas for processing and instead, to the maximum extent feasible, will immediately be returned to their country of last transit. These aliens are processed in stations designed for short-term processing, where distancing is not a viable option, creating a serious danger of an outbreak.
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Although CBP has policies and procedures in place to handle transmittable diseases, COVID-19 will impact already strained holding capacities and place an extreme burden on what is forecasted to be a stretched healthcare system and the nation's critical medical professionals who are needed to attend to U.S. citizens and legal residents.
Migrants should shelter-in-place in their homes and communities, rather than attempting a long and dangerous journey to the United States borders at the hands of traffickers and smugglers.
The agency further underscored the need for these steps:
Since the beginning of the FY20 fiscal year in October 2019 through the end of February 2020 (over the period of October 1, 2019 to February 29, 2020), foreign nationals from 122 separate countries have been apprehended or denied entry (inadmissible) at the U.S. Southwest border, for a total of over 190,000 apprehended or inadmissible migrants from countries currently with confirmed COVID cases.
As if to put a pin in it, the agency stated: "Every week, CBP apprehends between 7,000–9,000 individuals between ports of entry — the equivalent of 2.5 Diamond Princess cruise ships per week." In case you missed the reference, the CDC has reported:
During February 7–23, 2020, the largest cluster of COVID-19 cases outside mainland China occurred on the Diamond Princess cruise ship, which was quarantined in the port of Yokohama, Japan, on February 3.
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Among 3,711 Diamond Princess passengers and crew, 712 (19.2%) had positive test results for SARS-CoV-2.
Unless you live in one of the six states that do not have lockdown orders at the present time, you yourself are experiencing limitations on your movement similar to those seeking to cross the Southwest border, and for the same reason: the risk of further spreading the Wuhan virus.
And with due respect to the many governors and various local officials who have issued these fiats, seemingly under some sort of general authority, federal restrictions on cross-border travel are plainly spelled out in the Immigration and Nationality Act (INA). In essence, every applicant for admission, other than a lawful permanent resident, is barred from movement into the United States unless he or she can prove "clearly and beyond doubt" that they aren't so barred.
This is especially true as it relates to communicable diseases (like the Wuhan virus): the first ground of inadmissibility in the INA, section 212(a)(1)(A)(i), renders aliens with them inadmissible.
All of that said, the restrictions above are not premised on the INA. The provision they are grounded on, the aforementioned 42 U.S.C. § 265, is a broad grant of congressional authority without restrictions of any meaningful sort. Nobody can even begin to assert, when they themselves cannot move as they wish in most parts of a society that they control (through their elected representatives), that the president, CDC, or the surgeon general is acting arbitrarily or capriciously with respect to the travel restrictions imposed on March 20. Or so you would think.
On April 7, 2020, Sen. Pat Leahy (D-Vt.), member of the Senate Judiciary Committee — which has jurisdiction over immigration — sent a letter (along with the other Democrats on that committee) to Acting Department of Homeland Security (DHS) Secretary Chad Wolf, accusing DHS of "blatantly misinterpreting its limited authorities under the CDC's Title 42 order to override existing federal statutes", which they contend is "a move with no known precedent or clear legal rationale."
That letter states, in part:
As we understand from press accounts, DHS has gone far beyond the parameters of CDC's limited order and granted itself sweeping powers to summarily expel large, unknown numbers of individuals arriving at our border. Contrary to existing law, individuals, families, and children are now unable to sufficiently make claims for asylum, seek other forms of humanitarian protection, and, in some instances, are being expelled to countries in which they fear persecution. Therefore, DHS has essentially determined that executive branch officials can all but ignore the requirements of long-standing federal laws pursuant to an executive branch interpretation of a statute enacted in 1944. This amounts to a startling expansion of executive power under the guise of a global pandemic response.
They should read the Federal Register. On March 24, 2020, the Department of Health and Human Services (HHS) issued an "interim final rule [IFR] with request for comments to amend its Foreign Quarantine Regulations". That IFR, which is primarily premised on the authority in 42 U.S.C. § 265, allows the director of CDC to "prohibit the introduction into the United States of persons from designated foreign countries (or one or more political subdivisions and regions thereof) or places, only for such period of time that the Director deems necessary for the public health." That would be now.
The background for that rule distinguishes the authority of HHS under 42 U.S.C. § 265 from the president's authority under section 212(f) of the INA (the provision at issue in Trump v. Hawaii, which the Court held "exudes deference to the president in every clause"). The IFR states:
Section 212(f) of the Immigration and Nationality Act ("INA") applies to the "entry" of aliens, but [42 U.S.C. 265] instead provides the authority to prohibit the "introduction" of persons into the United States. Despite the unprecedented global efforts at mitigating or slowing the transmission of COVID-19, cases of COVID-19 have rapidly propagated and multiplied, crossing international borders with ease.
The background in the IFR then goes on to list a series of cross-border introductions of the Wuhan virus from one country to another in recent weeks ("travelers from Japan have exported at least 20 COVID-19 cases to eight countries"; "travelers from the Islamic Republic of Iran have exported at least 145 COVID-19 cases to 17 other countries"; "travelers from the Schengen Area have exported 624 COVID-19 cases to 70 countries, including to the United States").
While there may appear to be a fine line between "entry" and "introduction", there is, on the contrary, a significant distinction. For example, section 101(a)(13)(A) of the INA states: "The terms 'admission' and 'admitted' mean, with respect to an alien, the lawful entry of the alien into the United States after inspection and authorization by an immigration officer." Thus, "entry" has a legal connotation that applies to strictly to persons (as opposed to goods).
The IFR makes clear that the term "introduction" simply has a physical connotation, one that is focused on the disease itself as a primary matter, and the persons who may be carrying it secondarily:
Even though COVID-19 is present in certain locations within the United States, the suspension of the introduction of persons into the United States may be required in the interest of public health to avert the danger of further introduction of the disease into the same or other locations in the United States. ... For example, hypothetically, the introduction of COVID-19 into the United States would occur if two infected persons disembarked in a large metropolitan city in the Midwest from an international flight.
As an aside, I will note that, contrary to the insinuations of Leahy and the other signatories, the fact that section 265 was "enacted in 1944" is of no moment whatsoever. The First Amendment to the Constitution was adopted into the Bill of Rights in 1791, but it is still the supreme law of the land today.
And, as for those senators' assertions that "DHS has essentially determined that executive branch officials can all but ignore the requirements of long-standing federal laws pursuant to an executive branch interpretation of" the almost 76-year-old section 265, they seem to have no objections when the Supreme Court applies the almost 229-year-old First Amendment to a modern context, as in New York Times v. Sullivan (1964; defamation and libel) or when it declined to review the Ninth Circuit's decision in Prager University v. Google (9th Cir. 2020; YouTube is not a public forum subject to judicial scrutiny under the First Amendment).
Section 265 is a broad grant of authority, and the ubiquity and speed of modern-day international travel did not exist at the time it was passed. That said, for exactly those reasons, its strict and broad application is more salient today than it was in 1944, because the rapid movement of individuals in 2020 allows communicable diseases to spread quickly around the globe. If anything, the IFR was overdue.
As for the senators in question, they may want to consider how their plaints sound to constituents who themselves are forced to "shelter-in-place in their homes and communities". One of the signatories is ranking Judiciary Committee member Diane Feinstein (D-Calif.).
Residents in her hometown of San Francisco have been told to shelter in place since March 17. Violators are subject to ticketing and arrest (although the SFPD has only issued two citations: one to a trespasser originally suspected of burglary, the other "to an 86-year-old abortion protester"). In the face of such restrictions, is there really that much support for aliens crossing an international border illegally?
Finally, the only other alternative would be for the Border Patrol to apprehend illegal entrants and then release them immediately, as the CBP guidance suggests. From experience, that would simply lead to a surge of unscreened foreign nationals seeking illegal entry. In reality, that is no alternative at all.