HHS Issues New Title 42 Order in Response to Wuhan Coronavirus

Suspension of introductions of inadmissible aliens applies to coastal facilities and will remain in effect indefinitely

By Andrew R. Arthur on May 22, 2020
  • On May 19, the director of the CDC issued an order suspending the introduction of aliens into the United States who have entered this country illegally along the land and coastal borders of the United States, or have sought entry at the land and coastal ports of entry without documentation authorizing their admission, to prevent the introduction of the Wuhan coronavirus into this country.
  • This order was issued in accordance with the authority granted to the Department of Health and Human Services under 42 U.S.C. § 265 to prohibit the introduction of persons and property from any country in which it concludes there is a communicable disease that could be introduced into the United States, for as long as it deems necessary to prevent the introduction of that disease into the United States.
  • HHS issued similar orders on March 20 and April 20, each of which was effective for 30 days.
  • The duty for enforcing these orders, by law, falls on Coast Guard officials, Border Patrol agents, and U.S. Customs and Border Protection officers, among others.
  • Unlike those prior orders, the May 19 order is in effect indefinitely, until the director of the CDC determines that the danger of further introduction of the Wuhan coronavirus into the United States from those aliens is no longer a serious danger to the public health, and therefore that the order is no longer needed to protect the public health in the United States.
  • While this order is indefinite in duration, it is subject to review by CDC every 30 days to ensure that it is still necessary to protect the public health.
  • And, unlike those prior orders, the May 19 order applies to aliens apprehended entering illegally at the coastal borders, and seeking admission at the coastal ports of entry. This amendment was necessary because Border Patrol stations handling aliens who have entered illegally via waterway and coastal ports of entry are not designed or equipped to handle aliens with or exposed to the disease, or to protect other aliens and CBP personnel from exposure to the illness.

On March 21, I reported on the issuance by the Department of Health and Human Services (HHS) of travel restrictions for aliens entering the United States illegally between the ports of entry along the border, or without proper documents at those ports of entry, in accordance with authority provided in 42 U.S.C. §§ 265 and 268. On Tuesday, the director of CDC extended that order indefinitely (subject to 30-day review), and expanded it to cover coastal ports of entry and Border Patrol stations where those who enter illegally via a waterway (including both oceans, the Rio Grande, and the Great Lakes) are detained.

I have written extensively about HHS's authority under 42 U.S.C. §§ 265, but in essence it allows HHS to prohibit the introduction of persons and property from any country in which it concludes there is a communicable disease that could be introduced into the United States, for as long as it deems necessary to prevent the introduction of that disease into the United States. Section 268(b) therein gives Coast Guard and customs officers (including Border Patrol agents and U.S. Customs and Border Protection (CBP) officers) the "duty" to enforce such orders.

The CDC director concluded that these amendments were necessary for two reasons: (1) The Wuhan coronavirus is not going away anytime soon, and Canada and Mexico are continuing to see increasing numbers of infections and deaths from the disease; and (2) coastal ports of entry and Border Patrol stations, like their border counterparts, have areas where potentially inadmissible aliens are detained for extended periods of time for processing, but those ports and stations are not designed to handle aliens who have been exposed to or infected with the disease, or to protect personnel and other individuals (including other aliens) in those facilities from being exposed to the illness.

Unlike the prior orders, this one (as noted) is indefinite, and therefore likely more susceptible to court challenge. The litigation risk of this order, however, is significantly diminished by the fact that CDC will "reassess the Order every 30 days to determine whether the latest relevant information regarding the COVID-19 pandemic warrants continued implementation, or whether the Order should be modified or terminated." As long as the travel of Americans in the several states is limited, this order will likely be in effect, but again, even that is subject to change and monthly reassessment.

Another factor that likely protects this order from injunction by a malleable district court judge is the significant analysis therein. It runs 12 pages, and the findings are backed up by statistics and rigorous analysis. Perhaps most shocking are the statements about conditions in Mexico:

As of May 9, 2020, Mexico has reported 29,616 confirmed cases of COVID-19 and 2,961 deaths. The Mexican Health Ministry believes that there are approximately 8 additional cases for each confirmed case of COVID-19. On April 21, 2020, government officials announced that Mexico has entered Phase III of the COVID-19 pandemic, the Mexican government's highest level of public health emergency. As the pandemic continues, there are media reports of hospitals in Mexico City turning away potential COVID-19 cases and fears that Mexico lacks sufficient ventilators. ... Non-governmental models and estimates indicate that Mexico may have between 620,000 and 730,000 symptomatic COVID-19 cases. [Emphasis added.]

Given the fact that Mexico has a population of almost 129 million, 29,616 confirmed cases of the Wuhan coronavirus, or even 236,928, may not seem that high. That said, those statistics show that there is a great deal of uncertainty about the spread of the illness in Mexico and the rates of infection in that country.

And by preventing the introduction of non-Mexican nationals (OTMs) seeking to enter this country illegally or without proper documents, this Title 42 order reduces in turn the number of unscreened OTMs who will seek to enter Mexico illegally in transit to the United States, reducing the risk of spread of the disease in that country.

If I were advising HHS, I would recommend that CDC issue a short, monthly update with respect to this order, including new statistics and analysis on the spread of the Wuhan coronavirus in the United States, Mexico, and Canada for as long as this order is in effect. That would prove to the courts that HHS is taking its statutory responsibilities seriously, and not using this authority simply to reduce the number of illegal entrants, and also provide a pathway for the eventual lifting of this order.

In the interim, however, that order is the law.