Latest PolitiFact ‘Fact Check’ on Covid Testing Reveals More than It Intends

Biden’s Covid testing regime is easier for a migrant entering illegally than for a citizen headed home

By Andrew R. Arthur on December 20, 2021

PolitiFact worked over a tweet last week from Rep. Glenn Grothman (R-Wisc.) about the Biden administration’s Covid-19 testing regime at the Southwest border. The analysis by PolitiFact (which bills itself with admirable humility as “a nonpartisan fact-checking website to sort out the truth in American politics”) revealed more than it likely intended to, both about Biden’s Covid policies and about PolitiFact itself.

Here is the tweet in question:

The first part, about the Biden administration shutting down travel from eight countries in response to the discovery of the new Omicron variant of the novel coronavirus in southern Africa, is demonstrably true. I reported on it in myself in a November 30 post, and PolitiFact confirms its veracity.

It was the second part of that tweet — to wit, Biden “refuses to require a [Covid-19] test for illegal immigrants crossing” the Southwest border — that stuck in PolitiFact’s craw, however.

PolitiFact’s “Analysis”. The website asked Grothman’s office for — and got — the sources on which the gentleman from Wisconsin relied for that claim.

Then, they went over those sources with a fine-tooth comb. One was a September report from the DHS Inspector General (IG), captioned “DHS Needs to Enhance Its COVID-19 Response at the Southwest Border”.

The title alone would suggest that the Biden administration needs to step up its game when it comes to Covid testing for illegal migrants, but in any event, the IG found:

U.S. Customs and Border Protection (CBP) does not conduct COVID-19 testing for migrants who enter CBP custody and is not required to do so. Instead, CBP relies on local public health systems to test symptomatic individuals.

This was, even in September, hardly new news.

In its August 2 order directing the expulsion of illegal migrants under Title 42 of the U.S. Code, CDC explained: “DHS is working in coordination with nongovernmental organizations, state and local health departments, and other relevant facilitating organizations and entities as appropriate to develop DHS-approved processes that include pre-entry COVID-19 testing.”

In other words, DHS wasn’t itself testing the illegal migrants it apprehended; rather, it fobbed that responsibility off to state and local governments and NGOs, even though controlling the illegal entry of aliens is a strictly federal responsibility, as the Supreme Court held in Arizona v. U.S.

Worse, the president wanted to take the money to reimburse those non-federal entities for the Covid testing and quarantine of symptomatic migrants out of the pockets of the Border Patrol and ICE — two entities that have, as Biden’s DHS often notes, “limited resources”.

Despite the fact that this was plowed ground, PolitiFact cited to its own prior reporting from August, wherein DHS claimed it “works with state authorities, local authorities and non-governmental organizations to ensure that ‘100% of noncitizens’ are tested for COVID-19 ‘at some point during their immigration journey.’”

That the phrase “immigration journey” sounds like a planned vacation, and “at some point” is redolent of an excursion, a la the 1969 comedy “If It's Tuesday, This Must Be Belgium”, is beside the point.

There are a lot of “points” in an “immigration journey”, from meeting with the smuggler abroad to working in debt bondage in the United States to pay off the smuggler’s fees with interest (an all-too-true reality for many migrants), but that journey definitely includes release from CBP custody.

Testing Does Not Always Occur Before Aliens Are Released from Custody. Which brings up the question of whether those state and local governments and NGOs do that testing inside or outside of CBP or ICE custody, and whether the subsequent quarantine for aliens who test positive is performed by the federal government or someone else.

With respect to these points, and again citing its own prior reporting, PolitiFact asserts that DHS had told the website “a negative coronavirus test is required by the federal government before entry to the U.S."

Such entry occurs, as a matter of law and fact, when the alien “enters” the United States, which in the case of illegal migrants occurs before the alien ever encounters Border Patrol Agents. That is why section 212(a)(6)(A) of the Immigration and Nationality Act (INA) — one of two provisions that direct the removal of aliens who have entered illegally — is captioned “Aliens present without admission or parole”.

If they never “entered”, how could they be “present”?

In the case of aliens who have entered the United States without admission or parole, therefore, DHS’s statement to PolitiFact is false — though the “nonpartisan fact-checking website” whose self-defined duty is “to sort out the truth in American politics” did not deem it such.

Are aliens tested before they are released by DHS, however? The answer appears to be “no”, though one must wade through a metaphorical river of bureaucratese to get to that conclusion. The IG explained: “DHS developed a multi-layer framework to ensure all migrants entering the United States are tested for COVID-19 ‘prior to onwards travel into the United States.’”

Which is it — are they tested before entering or before “onward travel into the United States”? The phrasing is likely deliberately vague, but in that context, “onward travel into the United States” usually means the point at which they are picked up by someone else or (more often) dropped off at the local bus station or airport, to proceed into the interior.

Some of this confusion is clarified by a separate sentence in the IG’s report: “For migrants who are transferred or released from CBP custody into the United States, CBP coordinates with DHS, ICE, HHS, and other Federal, state, and local partners for COVID-19 testing of migrants.” (Emphasis added.) That means that at least some aliens are released from DHS custody before they are ever tested.

That said, DHS could be a little less opaque and elliptical in explaining how Covid testing for illegal migrants is done, and when.

Aliens Who Test Positive Cannot Be Detained by Localities.Testing is one thing, however, but preventing an alien from traveling “onward into the United States” after testing positive seems to be the more salient point. Does DHS detain illegal migrants who test positive?

The answer to that is also “no”, but on that point the IG is a little clearer: “The COVID-19 testing process for family units post-CBP custody is not effective because municipalities cannot force families to isolate for the required quarantine period.” Of course, that is the case, and it goes to Grothman’s point.

Once they are out of DHS custody, migrants are free to go wherever they want, unless they are being held on state or local charges. State and municipal governments have no authority to hold even aliens on “Covid charges” because (at this point at least) they don’t exist.

Perhaps that is the point that Grothman should have made, but frankly, his statement is more or less correct when it comes to Covid testing. The federal government cannot require aliens to do anything after they are released from DHS custody, and some unknown number are released before they are ever tested — despite the fact that they are the federal government’s responsibility.

Problems With PolitiFact’s Rating System. The tweet was rated “Half True”, because the "statement is partially accurate but leaves out important details or takes things out of context." That such a rating system is subjective and prone to partisanship should be obvious.

Contrary arguments can plainly be made in response to Grothman’s tweet, but that does not mean that the tweet is not true or half true. Under this standard, every political argument (which is what the tweet was) is, at best, “half true”, because someone will make contrary arguments. I would hate to see what these folks would say about lawyers’ pleas in the courtroom.

To be fair to both PolitiFact and Grothman, however, I have read through all of DHS’s contentions about its Covid-testing regime, and as noted above am not sure how many and which illegal migrants it tests, or how many and which illegal migrants are tested before or after they are released from custody.

Different Covid Testing Rules for Illegal Migrants and U.S. Citizens Returning Home. That said, the PolitiFact article raises a larger point, one that is personal to me and should be to you, too.

I recently returned from travel to Europe, and I was not required to show either my CDC vaccination card or proof of a negative Covid test before I flew Air France out or when I was admitted to the EU at Paris’s Charles De Gaulle Airport.

Once I got to Belgium (my destination), however, I had to be Covid tested every 24 hours if I wanted to eat in a restaurant or enter the European Parliament. I dutifully complied, because as an alien in the EU, I understood that I was subject to their laws and regulations.

The kicker, however, was my flight back. I am a United States citizen but was not allowed to board Air France for my return trip unless I presented a Covid test that was less than 72 hours old (which became touch and go when my first flight was canceled until the next day).

That was not Air France’s rule — again, I flew on the airline on the way over, and they allowed me to board with no problem. That was the United States’ government’s rule when I came back, and the Air France gate agent was its de facto enforcer.

In other words, I would have been effectively and indefinitely “exiled” had I not been tested, living like Tom Hanks’s character Viktor Navorski in 2004’s The Terminal. But I am as good a citizen of the United States as I am an alien in Europe, and so I dutifully complied.

What if I had told the gate agent, however, that everything was fine because I planned on being tested by a state or local government or nongovernmental organization before my onward travel from New York (I flew into JFK) into the United States?

That is the standard for aliens who have entered the United States illegally. But it would not have been acceptable for a U.S. citizen headed home.

Logic, Consistency, and Respect for the Rule of Law. Abraham Lincoln once asked some variation of the following riddle:

How many legs does a dog have if you call the tail a leg?

Four. Calling a tail a leg doesn’t make it a leg.

In much the same way, calling yourself “a nonpartisan fact-checking website to sort out the truth in American politics” doesn’t make you one; simply stating the facts and providing proper analysis would, however, go a long way toward achieving that lofty goal. Blanket statements like “Half True” might be fine for partisans but do little to advance public discourse.

One thing that is true, however, is that some illegal migrants are tested for Covid before they are released from custody, but others are not.

Another truth is that there is no way to make sure that illegal migrants who test positive for Covid after they are released do not spread the illness across the United States, even though section 212(a)(1)(A)(i) of the INA requires DHS to bar the admission of aliens determined “to have a communicable disease of public health significance”, like Covid.

A third truth is that the federal government — illogically — treats aliens who enter the United States illegally much more leniently when it comes to Covid testing than it treats U.S. citizens and lawful permanent residents flying back home from abroad.

The American people are not looking for perfection from the Biden administration when it comes to stopping the spread of Covid — just logic, consistency, and respect for the rule of law. That, at the end of the day, was the point of Grothman’s tweet.