Diaz S, Schrobilgen M. The role of public health in the rule of law: The cautionary tale of title 42 expulsions. Harvard Public Health Review. 2021; 30.
Under the COVID-19 pandemic, the United States government invoked an archaic public health law, referred to as “Title 42,” to thwart the rule of law and further an openly xenophobic political agenda. While public health in the United States has an unfortunate history of exploiting race in the name of medicine,[i] in this particular instance, the pandemic was used to requisition the largest government law enforcement agency and bend it to the will of the President. The lessons from the Trump Administration’s abuse of this public health law present an opportunity for public health officials to revisit their interdisciplinary role in protecting the rule of law.[ii]
On March 24, 2020, in the midst of a chaotic and decentralized national response to COVID-19, [iii] the Trump Administration invoked a little-known federal public health law, the Public Health Service Act of 1944, to authorize the summary expulsion of migrants.[iv] The application of this law, referred to as “Title 42 expulsions,” has wreaked havoc on children and families—many of whom were expelled to countries where they had fled imminent danger and credible threats of persecution.[v] Migrants have been repatriated to face torture or simply expelled to Mexico where they face the dangers of cartel violence.[vi] To effectuate this process, migrant children were detained in commercial hotels by private security guards unlicensed in child welfare before being expelled to extremely dangerous conditions.[vii] Newborns, born in the United States to noncitizen mothers, were swiftly expelled with their mothers but without their legal birth certificates.[viii] For a time, the number of summary expulsions matched the number of deaths from COVID-19 in the United States and now stands at a staggering 421,257 and growing.[ix]
Prior to the pandemic, the United States followed its domestic and international law obligations which require governments to permit individuals arriving at a border or port of entry to seek asylum if they have a credible fear of persecution in their home country.[x] These asylum laws were developed in the aftermath of World War II after many Allied powers refused to accept thousands of Jewish refugees who had fled Nazi Germany.[xi] Since that time, the obligation not to return an individual to persecution has become sacrosanct.[xii] Nonetheless, the Trump Administration endeavored to do away with asylum, and for four years the Administration did everything possible under immigration law to “close asylum loopholes.”[xiii]
The Administration operated with abject disregard, not only for established asylum laws, but for the special laws designed to protect vulnerable children. The Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA), a widely supported bipartisan bill, is designed to ensure that the most vulnerable individuals who arrive at our borders are not turned away to danger without regard for their safety.[xiv] For years, the Trump Administration had openly sought to cripple or outright repeal the TVPRA.[xv]
The arrival of the COVID-19 pandemic presented an opportunity for the Administration to achieve its stated objective of eliminating asylum and the TVPRA. To do so, the Administration exploited Title 42 by effectively shutting down the southern border. In the name of public health, the Administration began summarily expelling asylum seekers to persecution and removing migrant children to dangerous conditions.
The Department of Homeland Security (DHS), with a budget of approximately $70 billion dollars,[xvi] is the largest law enforcement agency in the United States. Tasked with carrying out immigration-related mandates under Title 8 of the U.S. Code, DHS is home to subagencies like Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP). These enforcement agencies have no training in public health or child welfare, nor does CBP require its agents to have a degree in higher education.[xvii] These law enforcement officers are trained in matters of immigration-related arrests, and their prerogatives are detention and deportations.
When the President employed Title 42, he leveraged the power of DHS to exercise a public health law in a manner that had no rational nexus to public health. Suddenly, with no oversight and no basis in law, CBP officers were operating under Title 42 to effectuate COVID-related “expulsions”—a deliberate term given to what amounts to unlawful, extrajudicial deportations. The relevant Title 42 provision relied upon by the Administration states in its entirety:
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.[xviii]
Using this terse language, the President directed the CDC to order the expulsion of anyone at the southern border irrespective of whether there was a nexus to the actual presence of or threat of transmitting the COVID-19 virus and ignoring widely accepted COVID-19 testing and safety measures. In its implementation there is no individualized assessment of whether someone presents “a serious danger of the introduction of [COVID-19].” Instead, the Administration empowered DHS to coopt this public health law for its law enforcement purposes and, in doing so, indicated it no longer needed to follow any other rule of law.
While the legal advocacy community has challenged the policy via litigation in court,[xxii] the need to engage robust interdisciplinary discourse on the intersection of immigration law and public health is critical. The field of immigration law has always been ripe for the exploitation of public health to effectuate xenophobic ends. There is a long history of nativist forces castigating immigrant newcomers as diseased threats to public health.[xxiii] Public health grounds of exclusion have long been cornerstones of restrictive immigration policies born of xenophobic public attitudes to keep noncitizens out.[xxiv]
The use of Title 42 has exposed the broader disconnect between public health and the rule of law. There is a strong correlation between the relative durability of the rule of law and public health outcomes.[xxv] Public health relies on the institutional trust and durability that the rule of law engenders, and the rule of law relies on accurate, objective, and stalwart mobilization of public health responses to protect the population. Yet there is also evidence that respect for the rule of law is eroding around the world, and the rise of authoritarian regimes threatens to supplant it.[xxvi] It is unsurprising then that the countries who have struggled most to contain and stifle transmission of COVID-19 are also the countries experiencing some of the more precipitous declines in respect for the rule of law.[xxvii]
The fact that Title 42 remains in force further demonstrates that the rule of law and respect for objective public health initiatives, once undermined, are not so easily rebuilt.[xxvii] The ushering in of a new Administration creates an opportunity for the public health sector to advance the legal constructs rooted in this pandemic. While some public health officials have spoken out against the ill-conceived practice, the opportunity to create a robust interdisciplinary approach to issues at the intersection of immigration and public health remains a critical need. By building such alliances, we might rebuild trust in our government institutions and reconstruct the rule of law.
In order to mitigate the immediate adverse effects of Title 42, we recommend that the public health community call upon the Executive to demand answers as to why the policy remains in place. On February 10, 2021, the Biden Administration issued a proclamation repealing the state of emergency at the southern border. Yet, the Title 42 program remains intact.[xxix] The CDC, in coordination with other relevant Executive Branch agencies and experts in public health, should develop an interdisciplinary task force that addresses Title 42—its purpose, its utility and its legality. The interdisciplinary task force should publish its findings and recommendations to ensure that an appropriate narrative can be formed to explain the propriety of repealing and/or modifying the implementation of a Title 42 program.
Going forward, in order to ameliorate the manipulation of public health considerations for nefarious ends, the public health community must endeavor to develop interdisciplinary conversations about the role of public health and the rule of law. Through conferences, convenings and cross-training, these conversations must consider the full historical scope of the role of public health in crafting racist or xenophobic policies—in immigration law and beyond. The lessons from this dialogue can serve to enrich the impact and the appropriate role that public health can play in supporting the rule of law.
Sarah J. Diaz, J.D. L.L.M. is the Associate Director of the Center for the Human Rights of Children (CHRC) and Lecturer at Loyola University Chicago School of Law. Malachy J. Schrobilgen is a second-year law student at Loyola University Chicago School of Law and a Children’s Rights Legal Fellow at the CHRC. The authors would like to extend their immense gratitude to Ruth Kafensztok, Assistant Professor of Public Health Sciences at the Parkinson School of Health Sciences and Public Health at Loyola University Chicago for her invaluable feedback on this manuscript. The authors also thank Katherine Kaufka Walts, Director of the CHRC, for her support and thoughtful comments in the development of the piece.
[i] Ayah Nuriddin et al., Reckoning with Histories of Medical Racism and Violence in the USA, The Lancet (Oct. 3, 2020), available at https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)32032-8/fulltext.
[ii] The authors, faculty and students at the Center for the Human Rights of Children at Loyola University Chicago School of Law (CHRC), are engaged in interdisciplinary advocacy to compel transparency around the use of Title 42 to expel and repatriate unaccompanied migrant children. In August 2020, the CHRC, the American Immigration Council, and the Illinois Chapter of the American Academy of Pediatrics filed a Freedom of Information Act request with the Department of Homeland Security and Customs and Border Protection to disclose records detailing how the rights of unaccompanied migrant children were considered in the implementation of Title 42, data related to the number of unaccompanied migrant children subject to expulsion, and records detailing conditions of detention for youth held in unlicensed commercial hotels pending expulsion.
[iii] Jennifer Kates et al., Comparing Trump and Biden on COVID-19, Kaiser Family Found. (Sept. 11, 2020), available at https://www.kff.org/coronavirus-covid-19/issue-brief/comparing-trump-and-biden-on-covid-19/.
[iv] See Order Suspending Introduction of Certain Persons from Countries Where a Communicable Disease Exists, Centers for Disease Control and Prevention (Mar. 24, 2020).
[v] See Complaint filed with Customs and Border Protection, Office of the Inspector Gen., (Sept. 15, 2020), on file with Kids in Need of Defense (KIND).
[vi] See “Declaration of Florence Chamberlin,” Kids in Need of Defense (KIND) at 4, (July 21, 2020), on file with KIND.
[vii] See Submitted Input to the Special Rapporteur for the Humans Rights of Migrants to the Office of the United Nations High Commissioner for Human Rights Report on Pushback Practices and their Impact on the Human Rights of Migrants, Center for the Human Rights of Children, (submitted Feb. 1, 2021) available at https://www.luc.edu/media/lucedu/chrc/pdfs/Input-Special-Rapporteur-for-the-Human-Rights-of-Migrants.pdf; see also Flores Independent Monitor Interim Report on the Use of Temporary Housing for Minors and Families Under Title 42, 2:85-cv-04544-DMG, ECF No. 938, Flores v. Barr, 407 F.Supp.3d 909 (C.D. Cal. 2020).
[viii] See Celine Castronuovo, Multiple Newborn US Citizens Removed to Mexico Without Birth Certificates: Report, The Hill (Feb. 5, 2021), available at https://thehill.com/latino/537579-multiple-newborn-us-citizens-removed-to-mexico-without-birth-certificates-report.
[ix] See Nationwide Encounters: Title 8 Enforcement Actions and Title 42 Expulsions, U.S. Customs and Border Prot., cbp.gov/newsroom/stats/cbpenforcement-statistics/title-8-and-title-42-statistics (last visited Feb. 26, 2021); see also CBP Enforcement Statistics, U.S. Customs and Border Prot., https://www.cbp.gov/newsroom/stats/cbpenforcement-statistics/title-8-and-title-42-statistics (last visited April 24, 2021).
[x] See United Nations Protocol Relating to the Status of Refugees art. I, 31 January 1967, United Nations Treaty Series, vol. 19, No. 6223; Convention Relating to the Status of Refugees art. 33(1), 28 July 1951, United Nations Treaty Series, vol. 189, No. 150, p. 152; see also Refugee Act of 1980 § 208, 8 U.S.C. § 1158, (c)(1)(A) (2018) (“In the case of an alien granted asylum… the Attorney General shall not remove or return the alien to the alien’s country of nationality or, in the case of a person having no nationality, the country of the alien’s last habitual residence).
[xi] See Deborah Anker, U.S. Immigration and Asylum Policy: A Brief Historical Perspective, 13 In Defense of the Alien 76-77 (1990), available at https://www.jstor.org/stable/23143024.
[xii] The jus cogens norm of non-refoulement is a universal, obligatory, and binding norm of international law which the United States cannot disregard or derogate – including, and especially during, times of national emergency. See, e.g., Article 33 of the U.N. Convention Relating to the Status of the Refugee under which a party nation may not “expel of return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group, or political opinion”; see also Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations Treaty Series, vol. 1465, No. 85, p. 113, under which party nations are obligated not to “expel, return…or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”
[xiii] See, e.g., Rep. Tim Ryan Calls Trump’s History Visit to the DMZ an ‘Appeasement Tour’, Fox News (June 30, 2019), available at foxnews.com/transcript/rep-tim-ryan-calls-trumps-historic-visit-to-thedmz-an-appeasement-tour.
[xiv] See William Wilberforce Trafficking Victim Protection Reauthorization Act of 2008, § 235, 8 U.S.C. § 1232 et seq. (2018); see also 154 CONG. REC. S10887 (daily ed. Dec. 10, 2008) (Statement of Sen. Feinstein) (noting the bill’s broad bipartisan support and endorsements from a wide range of legal, human rights, immigration, and religious organizations).
[xv] See Unaccompanied Alien Children and Family Units Are Flooding the Border Because of Catch and Release Loopholes, U.S. Dep’t of Homeland Sec. (Feb. 15, 2018) available at https://immpolicytracking.org/policies/dhs-issues-statement-condemning-flores-agreement-and-tvpra-as-providing-legal-loopholes-being-exploited-by-minors-family-units-and-human-smugglers/#/tab-policy-documents.
[xvi] Summary: The Department of Homeland Security Fiscal Year 2021 Appropriations Bill, Senate Comm. on Appropriations, (Dec. 21, 2020) available at https://www.appropriations.senate.gov/imo/media/doc/DHS.pdf.
[xvii] See Border Patrol Agent Application Process, U.S. Customs and Border Prot. (last modified Nov. 23, 2020), available at https://www.cbp.gov/careers/frontline-careers/bpa/app-proc#.
[xviii] Public Health Services Act of 1944, 42 U.S.C. § 265.
[xix] Jason Dearen et al., Pence Ordered Borders Closed After CDC Experts Refused, AP News (Oct. 3, 2020), https://apnews.com/article/virus-outbreak-pandemics-public-health-new-york-health4ef0c6c5263815a26f8aa17f6ea490ae.
[xx] See Letter from Public Health Leaders to HHS Secretary Azar and CDC Director Redfield (May 18, 2020), available at https://reliefweb.int/report/united-states-america/public-health-experts-urge-us-officials-withdraw-order-enabling-mass.
[xxi] See Letter to President Joseph R. Biden, (Feb. 2, 2021) available at https://www.humanrightsfirst.org/sites/default/files/LetterBidenAdminTitle42.Updated.pdf.
[xxii] See, e.g., P.J.E.S. v. Wolf, No. 20-cv-2245, 2020 WL 6770508 (D.D.C. Nov. 18, 2020), appeal pending, D.C. Cir. No. 20-5357. (ruling that the CDC Director likely acted outside of his statutory authority in authorizing the summary expulsion of unaccompanied migrant children).
[xxiii] See Peter Schrag, The Unwanted: Immigration and Nativism in America, American Immigration Council (Sept. 13, 2010), available at https://www.americanimmigrationcouncil.org/research/unwanted-immigration-and-nativism-america; see also Howard Markel & Alexandra Minna Stern, The Foreignness of Germs: The Persistent Association of Immigrants and Disease in American Society, 80 Milbank Quarterly 4, 757-788 (Dec. 2002), available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2690128/.
[xxiv] See Immigration Act of 1891 § 1, Pub. L. No. 51-551, 26 Stat. 1084(a) (“[t]he following classes of aliens shall be excluded…[a]ll idiots, insane persons…persons suffering from loathsome or a dangerous contagious disease.”); see also Immigration and Nationality Act, 8 U.S.C. § 1182(a)(1)(A) (1952) (providing grounds for inadmissibility for arriving noncitizens with “a communicable disease of public health significance”).
[xxv] See The Twin Crises of Public Health and the Rule of Law, World Justice Project, (June 25, 2020), available at https://worldjusticeproject.org/news/twin-crises-public-health-and-rule-law#:~:text=Evidence%20suggests%20a%20positive%20correlation,lower%20incidence%20of%20chronic%20diseases.
[xvii] See WJP Rule of Law Index 2020, (last accessed Feb. 26, 2021) available at https://worldjusticeproject.org/our-work/research-and-data/wjp-rule-law-index-2020; see also Thomas Carothers & David Wong, Authoritarian Weaknesses and the Pandemic, Carnegie Endowment for Nat’l Peace at 1, (Aug. 2020), available at https://carnegieendowment.org/files/Carothers_Authoritarianism_Pandemic.pdf.
[xxviii] See Executive Order on Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central American, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border, Sec. 4(ii)(A), (Feb. 2, 2021), available at https://www.whitehouse.gov/briefing-room/presidential-actions/2021/02/02/executive-order-creating-a-comprehensive-regional-framework-to-address-the-causes-of-migration-to-manage-migration-throughout-north-and-central-america-and-to-provide-safe-and-orderly-processing/.
[xxix] See A Letter to the Speaker of the House and President of the Senate Regarding the Termination of the National Emergency Concerning the Southern Border, White House (Feb. 10, 2021), available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/02/11/a-letter-to-the-speaker-of-the-house-and-president-of-the-senate-regarding-the-termination-of-the-national-emergency-concerning-the-southern-border/.
Sarah J. Diaz, JD, LLM is the Associate Director of the Center for the Human Rights of Children and Lecturer at Loyola University Chicago School of Law where she teaches in the areas of immigration law and international human rights. Prof. Diaz has been an advocate for migrant child rights for over 15 years, publishing on the intersection of US immigration law and the human rights of children. She serves as an expert consultant on US child migration, migrant child detention and migrant child rights in the US immigration framework.
Malachy Schrobilgen is a JD Candidate at Loyola University College of Law.