On September 16, Judge Emmet Sullivan of the U.S. District Court for the District of Columbia certified every human being on the face of the earth as a member of a class, and then enjoined all expulsions of illegal migrants from the United States under CDC orders issued under Title 42 of the U.S. Code in response to the pandemic. He stayed that order to give the Biden administration the chance to seek review. His decision shows that Trump border policies Biden jettisoned early on were legal and worked.
Here is the class Judge Sullivan certified:
All noncitizens who (1) are or will be in the United States; (2) come to the United States as a family unit composed of at least one child under 18 years old and that child’s parent or legal guardian; and (3) are or will be subjected to the Title 42 Process.
Most of the operative words in that sentence have no legal meaning, which is why the class is limitless.
I have written before (more times than I intended) about the Biden administration’s efforts to strike the word “alien” from the Immigration and Nationality Act (INA) and replace it with the word “noncitizen”. Administratively, the president can do what he wants when it comes to verbiage, but as a legal matter, he can’t replace it in the INA, and neither can Judge Sullivan. Only Congress can.
Certain members of Congress talk about changing it, but if you look at the amnesty bill that House Democrats are trying to sneak through on reconciliation, you will notice something interesting: The word “alien” appears 44 times, because the drafters don’t want there to be any doubt about the people to whom they want to grant green cards, waivers, and public benefits. “Noncitizen”? Zero times.
That’s because the word “alien” has a fixed and specific meaning in the INA.
Section 101(a)(3) therein states: "The term 'alien' means any person not a citizen or national of the United States." Section 101(a)(22) of the INA, in turn, explains: "The term 'national of the United States' means: (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States."
In other words, if you are not a citizen or a national of the United States, you are an alien subject to the requirements and restrictions in the INA.
Up to this point, the whole “alien” vs. “noncitizen” debate has been a parlor game, grist for pundits and talk shows but not much more. Now, it has real legal effect, and that effect is to muddy the waters. It’s likely unintentional, but it’s real nonetheless.
If I cross into Canada or Mexico, I become a “noncitizen” (I doubt they use the word, because those countries are governed by grown-ups). That’s because I am not a Canadian nor a Mexican national. So, if I am crossing the border, Judge Sullivan’s order applies to me, at least so long as I bring a kid with me.
Which brings me to the next undefined operative word: “Family unit”. It is a descriptive term, for sure; generally, it describes adults and children coming to the United States together. The adults and children don’t have to be related by blood or affinity, in most cases.
The term, however, is undefined in the law and appears nowhere in the INA.
Sullivan attempts to narrow this to some degree by requiring the adult be the “legal guardian” of the child. Those words don’t appear in the INA either, and if they are in the thousands of pages of the U.S. Code, I have never seen them. Is that “legal guardian” under U.S. law, Mexican law, Canadian law, the law of the adult’s country of nationality, the law of the child’s country of nationality? No idea.
Then there are the words “subjected to the Title 42 process”.
Which Title 42 process? Under the current CDC orders? Judge Sullivan doesn’t say that. There are a whopping 161 chapters in Title 42 of the U.S. Code (there are just 15 in the INA), and the sections go up to 42 U.S. Code § 18615. Does he mean the School Lunch Programs (chapter 13, sections 1751 to 1769)? Air pollution control (chapter 15B, sections 1857 to 1858)? Religious freedom restoration (chapter 21B, sections 2000bb to 2000bb-4)?
Even if Judge Sullivan meant the current CDC Title 42 expulsion order, I would be subject to it — I just could not be barred from admission. That means that if you show up at the border or ports with a kid — any kid — you are a member of the class.
Moving on to the decision, however, the court held that Title 42 does not allow CDC, DHS, or anyone else in the U.S. government to expel migrants who have entered illegally or without proper documents. Here is the language of the key provision, 42 U.S.C. § 265:
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. [Emphasis added.]
Sorry for the long excerpt, but the language here is key. Note that the CDC director now takes the place of the surgeon general in the implementation of this provision.
The section itself allows CDC to prohibit the introduction of “persons ... in the interest of public health” (including citizens, as an aside), but admittedly it says nothing about what CDC should do about aliens who show up at the ports without proper documents or who are apprehended entering illegally. So, Judge Sullivan concludes, it does not give the CDC director the power to order them excluded.
Why didn’t Congress give the surgeon general or CDC director that power? Because this section was enacted on July 1, 1944 — five days before D-Day — and has not been amended since.
When section 265 was drafted, transportation was not as advanced as it is today (and there was a world war going on, limiting transport even more). Jet travel was a fantasy, and almost everybody who traveled to the United States came on ships.
Want proof? In 1944, Border Patrol apprehended exactly 31,175 migrants entering illegally, counting every border of the United States. In August, agents at just the Southwest border apprehended that many illegal aliens (and more) every five days.
If an alien showed up on a ship in 1944, the then-INS could force the alien to remain onboard and go back home (that is, it could prevent the “introduction” of that alien to the United States). That is not possible when dealing with an alien entering illegally across a land border.
Judge Sullivan’s holding also hinges on the fact that those aliens have the right to apply for asylum in the United States. They did not have that right in 1944, given the fact that the refugee and asylum laws in the INA date to 1980.
They have that right today, and I question whether — were section 265 more explicit on the issue of expulsion — Judge Sullivan would not have held that it trumps public health concerns. There is much in his decision that suggests he would.
Here is the interesting part, though, which bears on Trump’s border policies: In finding that expulsion was not expressly covered by 42 U.S.C. § 265, Judge Sullivan referenced a series of statutes that did allow expulsion. One of those provisions is section 235(b)(2)(C) of the INA.
It allows DHS to send an alien who seeks admission at or between any land border ports of entry (including illegal migrants) from a contiguous country back across the border to await removal proceedings.
If that sounds familiar, its because section 235(b)(2)(C) of the INA was the statutory basis for the Migrant Protection Protocols — MPP, better known as “Remain in Mexico”. The Trump administration implemented MPP in January 2019, largely in response to the massive numbers of aliens in “family units” who were then entering illegally.
In its October 2019 assessment of the program, DHS deemed it a success, and it was. That did not stop the Biden administration from trying to terminate the program. It has been blocked from doing so by a different district court judge.
Further, if you read Judge Sullivan’s decision extremely carefully, you will see the Biden administration admitted that such policies limit the number of illegal migrants by discouraging illegal entry.
While Biden terminated most of Trump’s effective border policies, the one he kept was Title 42 (with some limitations). Before Judge Sullivan, the government argued that if the court were to enjoin Title 42, it would “create a ‘pull factor’ leading to additional attempts to enter the United States and in turn more apprehensions.”
Sullivan dismissed that argument based on what were — in my opinion — some questionable points, but the fact is that Biden’s DOJ admitted that policies preventing aliens from remaining in the United States deter foreign nationals from attempting illegal entry in the first place.
Judge Sullivan stayed his order for 14 days to give the government the opportunity to appeal, and I trust that the Biden administration will. As bad as the border is now, without Title 42 it would be a whole lot worse. If the president were to reinstitute MPP and other effective Trump policies that deter illegal entrants, however, none of this would be quite so pressing.