The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Biden administration has done a great deal of good by repealing many of the harmful and unjust immigration restrictions imposed under its predecessor. Examples include raising the refugee cap, ending Trump's anti-Muslim travel bans, terminating or allowing to expire the previous administration's bans on most immigration and work visas, revoking the border "emergency" declaration and the accompanying diversion of federal funds to build the wall, and much else. In some cases, Biden has fallen short by failing to keep some of his promises to revoke Trump measures, most notably Title 42 expulsions. But, in such instances, administration defenders can at least say he didn't make things worse.
Recently, however, the administration adopted a cruel new border restriction that goes beyond Trump, and really does make things worse in a way that is likely to kill innocent people. In this case, the main victims are not migrants, but Americans and others who need blood plasma to live. Dara Lind and Stefanie Dodt report in an article for ProPublica:
U.S. Customs and Border Protection announced on June 15 that effective immediately, it would no longer permit Mexican citizens to cross into the U.S. on temporary visas to sell their blood plasma. A statement provided to ProPublica and ARD said that donating plasma is now considered "labor for hire," which is illegal under the visitor visa most border residents use to cross into the United States to make donations….
The U.S.-Mexico border is still mostly closed to "nonessential travel" due to the COVID-19 pandemic, and the Biden administration has said those restrictions will remain in place through at least July 21. The travel restrictions have greatly reduced the cross-border plasma business. However, Paul del Rincon, a customs chief based in Eagle Pass, Texas, estimated in an interview posted to Facebook with broadcaster La Rancherita del Aire that even during the pandemic, 300 to 400 people crossed daily to donate plasma….
Before the pandemic, donors could make up to $40 a donation and over $4,000 a year for those who donated as often as possible. U.S. law caps donations at 104 a year, compared to Europe's recommended frequency of 33 times per year. In Mexico, selling plasma is entirely illegal.
However, with COVID-19 causing a 20% decrease in plasma donations in 2020, according to the industry group the Plasma Protein Therapeutic Association, prices have soared….
"We know a lot of people depend on what they receive from selling plasma to support themselves in Mexico," del Rincon said. "And we know the plasma centers also count on them. And this is going to hurt them."
The U.S. is the biggest global exporter of blood plasma — a market that reached $21 billion in 2019 — and plasma centers openly relied on cross-border donations to keep their supplies up….
The B1/B2 visitor visa used most often by Mexican border residents permits some business activity, but it does not permit Mexican citizens to work in the U.S. Before the new announcement, plasma donation fell into a legal gray area, with some CBP agents refusing to let people cross for donations but others allowing it.
Blood plasma is necessary to save the lives of patients suffering from a number of different medical conditions. And, as Lind and and Dodt note, the pandemic has caused a severe shortage of blood plasma, both here and around the world (much of which depends on US supplies, because they ban payments for blood plasma in their own countries). Especially in times of severe shortage, paying donors is essential, because unpaid donations are nowhere near sufficient to meet demand. The new border restriction will predictably exacerbate the shortage, as well as deprive many poor Mexicans of a valuable source of income.
Lind and Dodt point out a paternalistic rationale for the restriction:
[A]s ProPublica and ARD found, frequent plasma donation was also hurting the Mexican citizens who relied on the system for money. Frequent donors were underweight and showed low levels of antibodies.
To my mind, Mexicans (and others) should be allowed to decide for themselves whether they want to take the health risks involved in becoming frequent plasma donors. For many, the extra money might well be worth it. By mitigating their poverty, it might even enable them to improve their overall health, in the long run.
One can argue that it is unjust for people to be in a situation where their only realistic options are dire poverty or taking a health risk. But, if so, that injustice cannot be alleviated by further reducing the range of alternatives available to the people in question, such that many are left with only the one they consider even worse than the other.
We should not assume that US government officials know what is best for poor Mexicans better than the latter themselves do. Such paternalism is especially worthy of condemnation by those who, like many on the left (as well as most libertarians), support the "my body, my choice" principle. For a more detailed critique of paternalistic rationales for banning blood plasma sales, see this excellent paper by Georgetown political philosopher Peter Jaworski.
Even if reliance on paternalistic considerations here is justified, the reasonable solution is not a complete ban on plasma sales by Mexicans on B1 and B2 visas, but merely a restriction on their frequency. Only frequent donations pose significant health risks.
I am not going to attempt a detailed analysis of the legal rationale for the new policy. But I will say that the argument that paid plasma donation qualifies as "labor for hire" strikes me as highly dubious. It is far more akin to the sale of a commodity. If a Mexican on a B1/B2 visa sells a used car or a basket of fruit while in the United States, that surely doesn't qualify as "labor for hire." The same reasoning applies to selling blood plasma. The fact that the latter comes from the body doesn't strike me as a decisive difference. After all, selling a car or a fruit basket also involves using your body, in most cases (even if only to hand over the item sold to the buyer).
Even if I'm wrong about this legal point (and I admit I might be), administrations of both parties have long exercised wide-ranging discretion over which visa violators and illegal border crossers to prioritize for deportation or exclusion. Biden himself has exercised that authority on a large scale. If there's ever a good reason to exercise executive discretion to prevent people from being barred or deported, it is surely a case where they are crossing for a purpose that is literally a matter of life and death!
The administration should immediately reverse this cruel and unjust policy.