Covid, Title 42, and the Biden Administration’s Border Policies

Stop the name calling, and let’s get some facts

By Andrew R. Arthur on August 14, 2021

It’s no overstatement to say that the Covid pandemic has shaped the world in which we live. Schools have been closed, restrictions imposed, 200,000 businesses shuttered, and government grown in previously incomprehensible ways. The response to the pandemic, both public and personal, has divided Americans with the emergence of the new “Delta variant”, and the threat of the coming of the “Lambda” version. What role has illegal immigration played in the spread here?

As a purely factual and legal matter, this is not a contentious issue.

Here’s the factual: On October 13, the CDC issued an order under Title 42 of the U.S. Code “suspending the right to introduce certain persons into the United States from countries where a quarantinable communicable disease exists”. The “quarantinable communicable disease” in question is identified in that order: “COVID-19”.

That order, which is substantially the same as others issued as far back as March 2020, allowed DHS to quickly expel aliens who have entered the United States illegally or sought admission without proper documents.

The key excerpt can be found in the third paragraph of that order, under “Summary”:

This Order is based on the CDC Director's determination that introduction of aliens, regardless of their country of origin, migrating through Canada and Mexico into the United States creates a serious danger of the introduction of COVID-19 into the United States, and the danger is so increased by the introduction of such aliens that a temporary suspension is necessary to protect the public health.

On August 2, CDC now under the Biden administration issued a new Title 42 order that replaced and superseded that October 13 one. It exempts unaccompanied alien children (UACs, although it uses Biden-imposed nomenclature, “unaccompanied noncitizen children”, or “UC”) from expulsion, due to unspecified “specific COVID-19 mitigation measures available in facilities providing care” for them.

It also includes exceptions “for individuals on a case-by-case basis, based on the totality of the circumstances” (similarly undefined), as well as “for programs approved by [DHS] that incorporate appropriate COVID-19 mitigation protocols as recommended by CDC”.

The basic rationale behind that October 13 order remains, however. Aliens encountered by CBP at the border and ports must be held for processing in places where Covid can spread, thus endangering the aliens themselves, CBP personnel, “U.S. citizens and residents”, and local healthcare systems.

The gravity of that order is clear from its terms:

CDC recognizes that expulsion is an extraordinary action but ... the power to expel is critical where neither HHS/CDC, nor other Federal agencies, nor state or local governments have the facilities and personnel necessary to quarantine, isolate, or conditionally release the number of persons who would otherwise increase the serious danger of the introduction of a quarantinable communicable disease into the United States. [Emphasis added.]

In other words, CDC has to continue Title 42 to prevent illegal aliens from further transmitting Covid into this country, and to prevent the introduction of any new variants.

Now, for the legal part. Congress, in the Immigration and Nationality Act (INA), has made clear that any alien with a communicable disease must be barred from admission to the United States.

In fact, the very first clause in the grounds of inadmissibility, section 212(a)(1)(A)(i) of the INA, states: “Any alien- (i) who is determined (in accordance with regulations prescribed by the Secretary of Health and Human Services) to have a communicable disease of public health significance ... is inadmissible.”

Similar bars can be found in the immigration laws as far back as the Immigration Act of 1907, and likely well before.

This is not a personal issue, nor a derogation of aliens generally or any group in particular. Rather, foreign nationals with communicable diseases, or from areas where such diseases are prevalent, are barred from coming to the United States in order to prevent those diseases from spreading here. It’s the first ground of inadmissibility because protecting the health of its residents is government’s primary duty.

Of course, notwithstanding the CDC’s Title 42 order, tens of thousands of aliens who have entered illegally have been released by CBP each month for the past several months. And, notwithstanding the bars in the INA, at least some of them reportedly have Covid, as I have explained before.

With respect to the first point, in June, Border Patrol apprehended more than 178,000 migrants at the Southwest border. Just over 103,000 were expelled under Title 42, meaning that more than 75,000 were processed under the INA. They were not expelled.

On an average day in June, ICE detained 22,398 aliens who had been apprehended by CBP. Aliens whom CBP had arrested were detained by ICE for an average of 20 days that month. That means that most of those 75,000-plus recent illegal migrants were never detained after processing.

That takes me back to the most recent CDC order, which explains how migrants are screened for Covid. Aliens apprehended by CBP “are subject to health intake interviews, including COVID-19 screening questions and temperature checks”. If they have been exposed to Covid (or admit having been exposed), or have Covid symptoms, they are sent to a local hospital for testing.

Otherwise, if those aliens are released, testing is left up to local governments and non-governmental organizations (NGOs).

Going to my second point above, about Covid-positive migrants being released into the United States, those local governments and NGOs have no authority to detain migrants who test positive for Covid, and in one high-profile case in La Joya, Texas, recently, Covid-positive aliens who were being housed by an NGO reportedly left quarantine to go eat in a restaurant.

In an August 4 post, I explained that local officials in those border towns have logically asked the Biden administration not to release Covid-positive migrants in their communities, or at least to tell them they are there.

The director of one of those NGOs, however, was “advised not to comment” when asked how many Covid-positive migrants it was housing in local hotels, likely by the Biden administration.

Of course, that is just the migrants who are released and who test positive. The August 2 order explains: “Unvaccinated persons with asymptomatic and pre-symptomatic infection are significant contributors to community SARS-CoV-2 transmission and occurrence of COVID-19.”

I have no idea how many migrants get vaccinated before they enter illegally, but it can’t be too many, given the comparably low vaccination rates in the countries from which the majority come.

As noted, one of the major reasons the CDC issued its Title 42 order was to prevent the spread of Covid in DHS facilities. But the situation at the border is so bad that Covid can still spread there.

Here’s how CDC describes it: “CBP facility capacity to accommodate COVID-19 mitigation protocols may not always align with the makeup of the incoming population of noncitizens and the categorical separations required of DHS.”

In other words, CBP has too many migrants, not enough space, and too few resources to ensure that aliens don’t catch Covid during processing. If they contract Covid during processing, post-release testing may not stop them from being identified as Covid-positive or from spreading the virus.

MIT explains that the time-interval between exposure to the Delta variant and the ability to test for it is three to five days, and that Delta-infected individuals are “way more infectious by the time their infections were detectible” than with earlier variants. That means migrants can be infected with Covid during processing, be released, and start spreading it even if they receive a negative test.

Not surprisingly, Republicans who oppose the Biden administration’s immigration policies (including former President Trump) and oppose additional Covid restrictions from the federal government have highlighted the Covid threat those migrants pose.

Somewhat more remarkable, however, has been the ad hominem vehemence with which purportedly objective journalists have taken President Biden’s political opponents to task over the issue.

For example, an August 10 Washington Post article had the rather lengthy headline: “Republicans raise money on Facebook by tying migrant influx to covid surge: Sen. John Barrasso is among those seeking donations by suggesting immigrants are exacerbating the pandemic. Last year, Facebook said a similar claim amounted to hate speech.”

The same day, NPR ran a piece captioned: “Some Republicans Blame Migrants For COVID-19 Surges. Doctors Say They're Scapegoating”. An August 8 opinion piece in the Miami Herald was headlined: “Mexican migrants aren’t spreading COVID in the U.S. No, Republicans are doing that.”

Nor are those in the media simply attacking politicos on the border/Covid issue.

On August 10, CBS News ran a rather straightforward account explaining “What happens to migrants with COVID at the southern border”. Much of it could have been lifted from the August 2 CDC order, sprinkled with some spot reporting and comments from local migrant-assistance folks and officials like McAllen, Texas, Mayor Javier Villalobos.

Villalobos, whose town “has seen over 1,800 migrants a day” in recent weeks, has declared a state of emergency. He explained:

Initially, I didn't see it as a problem, because it was under control. ... So I saw no correlation between the increase in COVID within our community and the immigrants because they were isolated.

Now I think there's an issue, because now they're going throughout. ... Positive or non-positive, they get picked up, and they're going out. And we have no authority to stop it.

Villalobos stated that he “totally agree[d]” with governors who said that the border situation is “a problem now, for the health and safety of the rest of America”.

As I explained in a June 8 post, the McAllen mayoral race is nonpartisan, but Villalobos is a past chairman of the local Hidalgo County Republican Party. That said, there was little partisanship in his fairly reasonable concerns.

Nonetheless, Soledad O’Brien, retweeted the Washington Post article referenced above, while taking a swipe at the CBS News report:

O’Brien is the host of “Matter of Fact”, which is described as a “political magazine program”, after having “anchor[ed] shows on CNN, MSNBC and NBC, and hosted projects for Fox and A&E”.

Interestingly, her SO’B Productions defines itself as “a documentary production company dedicated to uncovering and producing empowering untold stories that take a challenging look at often divisive issues of race, class, wealth, opportunity, poverty and personal stories”.

Respectfully, there is little more “divisive” than calling out reporting you don’t like as aiding a “racist effort”.

The entry restrictions in CDC’s Title 42 order and the INA aren’t derogatory, nor are they driven by discriminatory animus. They are the oldest public-health responses in the law and meant to protect residents of the United States from the spread of an illness that has already threatened their lives and livelihoods. If the administration wants to get the public behind its other Covid recommendations and limitations, it needs to do a better job of enforcing its restriction at the border, Title 42.