‘Title 42’ Usage Violates Refugee Act, Ignores Intent of Provision

The Title 42-based policy enacted by the Trump administration will remain in place.

This was the May 20 ruling of Judge Robert Summerhays of the U.S. District Court Western District of Louisiana Lafayette Division.

The Biden Administration cannot end the policy until a full trial is held, based on a requirement of the Administrative Procedure Act according to Summerhays.

There are a lot of misconceptions about Title 42 regarding what it is and what it does, so here is a brief overview.

Title 42 is the portion of the U.S. Code related to matters of public health and welfare.

Chapter 6A (Public Health Service), subchapter II (General Powers and Duties), Part G (Quarantine and Inspection), section 265 (Suspension of entries and imports from designated places to prevent spread of communicable diseases) states:

“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.”

To understand what is intended here, we need to go back to the colonial period.

In 1647, the Massachusetts Bay Colony passed regulations that quarantined ships in harbor from Barbados due to the fear of plague. By the 1750s, harbor quarantines were happening so often that New York began supporting a system of hospitals for sailors who showed signs of infection.

The federal government joined the party in the 1790s by providing resources to state quarantine efforts. In 1796, Congress granted the president the authority to direct the revenue offices to providing aid for public health outbreaks.

Finally, in 1798, the Act for the Relief of Sick and Disabled Seaman created the Marine Hospital Service, which would later evolve into the Public Health Service. Quarantines were most focused upon diseases like smallpox, malaria and cholera.

The Civil War years saw more federal involvement in quarantines in response to cholera and malaria outbreaks. The post-war years focused on malaria out breaks in the South.

In 1872, Congress passed a “Resolution Providing for a More Effective System of Quarantine on the Southern and Gulf Coasts,” which provided resources for the southern border and Atlantic ports.

Until 1875, all responsibility and control of screening and quarantining immigrants rested with the states. That year, the Supreme Court of the United States in Chy Lung v. Freeman struck down all existing state immigration laws, giving the federal government sole authority in regulating immigration.

So, in 1878, Congress passed what became known as the National Quarantine Act, which was the first major piece of legislation granting the federal government the authority to impose quarantines that impacted the immigration process.

The full title was “An Act to prevent the introduction of contagions or infectious diseases into the United States,” and the opening sentence stated:

“That no vessel or vehicle coming from any foreign port or country where any contagious or infectious disease may exist, and no vessel or vehicle conveying any person or persons, merchandise or animals, affected with any infectious or contagious disease, shall enter any port of the United States or pass the lag United States boundary line between the United States and any foreign country.”

This was a significant step toward what became the Public Health Service.

In those early days, denying entry or detaining immigrants was rare. From 1890-1920, Ellis Island had less than 3% of immigrants denied entry for medical reasons.

By contrast, the immigration station on Angel Island in California had rejection rates of up to 15% in 1920. Historians view the high rejection rate as being linked to Asian discrimination where Ellis Island had mostly processed European immigrants.

World War II and the post-war era led to concern about soldiers and refugees bringing infectious diseases to the U.S. from Europe.

The Public Health Service Act of 1944, which contains Title 42, was a direct response to this. Section 361 confirms and establishes of the Public Health Service’s authority to detain groups who might have dangerous communicable disease at the point of entry.

Due to public health successes and mass vaccinations, the post-war years saw a relaxation of quarantine rules. By the 1960s and 1970s, quarantine programs for immigrants were deemed expensive and no longer necessary.

In 1952, with the Immigration and Nationality Act, the nation moved medical screening standards to the level of the visa application. It operated similarly to Title 42 but was part of the immigration program.

Sections of the law were used to deny entry to Haitian asylum seekers during the Reagan administration and to enact the 2017 travel ban under President Trump.

Passage of The Refugee Act of 1980 meant that asylum seekers were granted the right to stay in the U.S. while their cases were resolved regardless of their point of entry, legal or illegal.

The Trump administration’s use of Title 42 to restrict and expel migrants (including asylum seekers) from specific countries heavily impacted by COVID-19 was an effort to get around the rules of The Refugee Act.

This was never the intent of Title 42, which grants the Surgeon General the authority to deny entry, not expel or deport. If you are already in the U.S., then the public health risk has already occurred.

In addition, Title 42 applies to all persons entering the country, citizens and immigrants. Both Trump and Biden have failed to apply the rule equally.

As Title 42 is about the spread of communicable disease, the nationality or citizenship of the traveler is irrelevant. A citizen can traffic illness just as effectively as an immigrant.

Therefore, the indiscriminate use of Title 42 is clearly a violation of The Refugee Act and of the Title 42 provision itself.

Using Title 42 is not a solution to the crisis at our southern border. We need to return to a serious discussion of immigration policy that is both just and compassionate.