More Immigration-Related Covid-19 Inconsistency from the White House

If Biden will use section 212(f) of the INA to keep unvaccinated athletes out, he should use it to secure the border, too

By Andrew R. Arthur on January 9, 2023

A recent post focused on Covid-19 inconsistencies in the administration’s statements in Supreme Court filings in cases involving federal student-loan debt forgiveness on the one hand and CDC orders directing the expulsion of illegal migrants (issued pursuant to Title 42 of the U.S. Code in response to the Covid-19 pandemic) on the other. Another Covid-19 inconsistency has cropped up, as the Transportation Security Agency (TSA) extends a vaccination requirement for travelers to the United States until April 10. That vaccination bar is premised on the president’s authority under section 212(f) of the Immigration and Nationality Act (INA), and if Biden’s willing to use it to keep unvaccinated travelers — including world-class athletes — out of the United States, he should use it to secure the border, too.

Supreme Court Arguments. By way of brief review, the administration is attempting to cancel up to $20,000 in debt for those with federal student loans (total price tag: $400 billion), arguing that such “debt relief” is necessitated by the ongoing Covid-19 “national emergency”. That has been challenged in federal court, and the justices will consider the issue on February 28.

At the same time, however, Biden’s DOJ is telling the Supreme Court that CDC should be allowed to end those Title 42 exclusion orders for illegal migrants apprehended at the Southwest border — which were implemented to curb the introduction and spread of Covid-19 — because expulsion under Title 42 is “a public-health measure that all now acknowledge has outlived its public-health justification”.

That case will be heard in February as well, and if the Supreme Court clerk’s office has a sense of irony, arguments will be scheduled for February 28 in that case (Arizona v. Mayorkas) as well.

“Requirements for Proof of Being Fully Vaccinated Against COVID-19”. On December 31, TSA issued an “Emergency Amendment” captioned “Requirements for Proof of Being Fully Vaccinated Against COVID-19” and, as noted, it requires proof of vaccination for travelers to the United States up to April 10.

That amendment implements an October 25, 2021, White House document captioned “A Proclamation on Advancing the Safe Resumption of Global Travel During the COVID-⁠19 Pandemic”.

The intent of that proclamation was to “move away from the country-by-country restrictions previously applied during the still ongoing” pandemic for countries such as China, Iran, and the “Schengen zone” of Europe “and to adopt an air travel policy that relies primarily on vaccination as an added tool to the current multi-layered strategy to advance the safe resumption of international air travel to the United States”.

In essence, it was a shift in focus away from limitations on travel to the United States from specific regions of the world to limitations on travel for those who have not been vaccinated for Covid-19. As with Title 42, this policy is:

[I]ntended to limit the risk that COVID-19, including variants of the virus that causes COVID-19, is introduced, transmitted, and spread into and throughout the United States, potentially overwhelming United States healthcare and public health resources, [and] endangering the health and safety of the American people.

What About Illegal Migrants? Of course, that TSA policy doesn’t apply to aliens traveling to the United States illegally by crossing over the Southwest border between the ports of entry, only to lawful travelers. Nothing requires that illegal migrants have Covid-19 vaccinations, and for what it’s worth, those who do are no more or less likely to be subject to expulsion under those (now court-mandated) Title 42 orders.

If the administration had its way, however, Title 42 would be gone and there would be no Covid-19-related restrictions on illegal entrants, even while it insists on burdening lawful travelers with a Covid-19 vaccination requirement.

One of those travelers (perhaps the most famous) is 35-year-old Serbian Novak Djokovic, currently the fifth-ranked men’s tennis player in the world. He hasn’t been vaccinated, and in fact was barred from the U.S. Open in August due to the administration’s vaccination requirements (for which Djokovic has expressed “no regrets”).

He is scheduled to play in the Indian Wells and Miami Open tournaments (both of which begin in March), but now TSA won’t let him in.

To be clear: If you are a top-ranked athlete, in peak physical shape, the Biden administration won’t let you into the United States unless you have been vaccinated. But if you are a foreign national who crosses the Southwest border illegally, the Biden administration couldn’t care less about your vaccination status. That’s just more grist for the justices’ mill, I guess.

The Power of Section 212(f). Which brings me to section 212(f) of the INA, the topic of an earlier post in which I described that provision in Title 8 of the U.S. Code as “Title 42’s immigration twin”.

That description likely gave section 212(f) of the INA short shrift, because while the statutory provision upon which those CDC orders are premised (42 U.S.C. § 265) allows CDC to bar the introduction of persons to prevent the introduction of communicable diseases, section 212(f) allows the president to bar any alien whose entry he deems “detrimental to the interests of the United States” on any ground.

As the Supreme Court explained in 2018:

[Section 212(f) of the INA] exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry (“[w]henever [he] finds that the entry” of aliens “would be detrimental” to the national interest); whose entry to suspend (“all aliens or any class of aliens”); for how long (“for such period as he shall deem necessary”); and on what conditions (“any restrictions he may deem to be appropriate”). It is therefore unsurprising that we have previously observed that [section 212(f) of the INA] vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA.

In essence, Congress states elsewhere in the INA that certain aliens are allowed to enter the United States, and then in section 212(f) of the INA tells the president that he has the option not to allow any of them to enter.

Want proof? The October 25 White House proclamation that the TSA emergency amendment is implementing is ... premised on the president’s authority under section 212(f) of the INA, as well as on section 215(a) of the INA, an equally powerful authority that also allows the president to set the rules under which aliens are allowed to enter the United States.

Djokovic likely meets all the statutory requirements Congress has set forth in the INA for the admission of aliens to the United States (including a visa), but he has already been barred from entering the country to play in the U.S. Open and will almost definitely be barred from entering to play at Indian Wells and the Miami Open, simply because the president says he can’t. End of discussion.

On December 19, when it looked like Title 42 would be ending on December 21, White House Press Secretary Karine Jean-Pierre told reporters not to worry:

The fact that the removal of Title 42 is happening in just a day or two doesn’t mean that the border is open. It just doesn’t mean that. When Title 42 goes away, we will go back to Title 8, which allows for a process to make sure that people can have their own asylum claims heard, and those who do not have a legal basis to remain will be quickly removed.

Actually, Title 42 or not, the border is de facto “open” (more than 73,000 aliens entered illegally and evaded Border Patrol agents at the Southwest border ("got-aways") in November alone), and Jean-Pierre also knows that under administration policy, aliens “who do not have a legal basis to remain” likely will not be quickly removed — they’re going to be here indefinitely, if not forever.

But she is right that there is a Title 8 — it’s better known as the INA.

Regardless of when Title 42 ends, section 212(f) of the INA allows the president to close the border today to illegal migrants, simply by using that authority Congress has given him. If Biden is willing to use section 212(f) to keep an unvaccinated world-class tennis player out of the United States, he should use it to secure the border, too.