The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Thursday, federal district court judge Emmet Sullivan issued a decision ruling that the Biden administration's use of "Title 42" public health authority to expel migrants at the border (including those otherwise eligible for asylum) is illegal. While the ideological valence of the two cases is very different, the reasons why the Title 42 expulsions are illegal are very similar to those that recently led the Supreme Court to rule against the federal eviction moratorium. In both situations, the Centers for Disease Control—at the behest of first Trump and later Biden—claimed sweeping authority that legal precedent indicates it should not have without clear, specific authorization by Congress.
The Title 42 expulsion order, mandating immediate expulsion of most migrants coming from Canada or Mexico, was first adopted under the Trump administration in March 2020, and was later extended by Biden, most recently in August. The Biden administration did rescind the expulsion of unaccompanied minors,. Nonetheless, many thousands of people continue to be summarily expelled under the order, including those who would otherwise qualify for asylum.
The ostensible rationale for the expulsion order was to prevent the spread of the Covid-19 virus. I say "ostensible" because CDC public health experts warned the Trump administration that the policy would not actually do much to stem the spread of Covid. Many months of both Title 42 expulsions and other international travel restrictions amounting to the most restrictive immigration policy in the history of the United States, did little or nothing to prevent either the initial Covid virus or later variants (such as the Delta version), from becoming established in the United States.
It seems likely that the Trump administration used the Covid crisis as an excuse to pursue its longstanding anti-immigration agenda, and Biden has partially continued the restrictions for political reasons of his own (including, perhaps, looking tough on Covid, and avoiding attacks from the right for being too soft on border control).
The legal authority cited by both Trump and Biden to justify the Title 42 expulsions is 42 USC Section 265, which gives the CDC Director the following powers:
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.
In his recent ruling Judge Sullivan indicates that this statute does not grant the CDC the power to expel migrants, as opposed to exercise such less extreme measures as imposing quarantines:
As Plaintiffs point out, Section 265 simply contains no mention of the word "expel"—or any synonyms thereof—within its text…. The lack of express terms within the statute is significant: even "broad rulemaking power must be exercised within the bounds set by Congress," Merck & Co. v. U.S. Dep't of Health & Human Servs., 385 F. Supp. 3d 81, 92, 94 (D.D.C. 2019), aff'd, 962 F.3d 531 (D.C. Cir. 2020)…
Indeed, particularly where the statute in question regards such a "severe 'penalty'" as deportation, Padilla v. Kentucky, 559 U.S. 356, 365 (2010)…. the [Supreme Court] Court is loathe to recognize an implied power of forced removal from the country, see Util. Air Reg. Grp., 573 U.S. at 324 ("We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast 'economic and political significance.'"). Rather, as this Court explained in P.J.E.S. v. Wolf, 502 F. Supp. 3d 492, 512 (D.D.C. 2020), "when Congress wants to grant the power to expel individuals out of the United States, it does so plainly." P.J.E.S., 502 F. Supp. 3d at 512….
The Court also finds that the plain text of Section 265 is supported by the statutory context. See Brown & Williamson Tobacco Corp., 529 U.S. at 132-33 (2000) ("It is a 'fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme….'" For example, in Section 271, Congress provided for specific "penalties" for those
37persons who or vessels that violated public health regulations prescribed under the relevant sections, including Section 265. 42 U.S.C. § 271. For individuals, Section 271 states that any violation "shall be punished by a fine of not more than $1,000 or by imprisonment for not more than one year, or both." Id. § 271(a). Removal from the United States, however, is not included as a penalty. Moreover, Section 271 refers to the regulations prescribed under Section 265 and others as "quarantine laws," further suggesting that the CDC's powers were limited to quarantine and containment.
It is notable that Judge Sullivan relies the rule that courts "expect Congress to speak clearly if it wishes to assign to an agency decisions of vast 'economic and political significance.'" This is exactly the same language from the exact same case that the Supreme Court cited in striking down the DC eviction moratorium. In both cases, the administration used potentially ambiguous statutory language to claim vast discretionary authority over a major area of economic and social policy.
In the eviction moratorium case, it was power amounting to the authority to shut down almost any activity that might spread disease. Here, it is the power to expel virtually any non-citizen at any time. After all, "communicable diseases" exist at all time times in every nation in the world. And the CDC can always claim there is "serious danger" that migrants might "introduce" them into the United States, especially since the statute does not require the agency to prove that such a danger actually exists, but merely to "determine" that it does so.
There is another flaw in the government's position here that Judge Sullivan does not mention. It has to do with the passage in Section 265 indicating that the agency's power is limited to measures that could prevent the "the introduction of such disease into the United States." By now, it is impossible to prevent the "introduction" of Covid-19 into the United States for the simple reason that it is already here, and already widespread. The most plausible interpretation of "introduction" is that it refers to the spread of a disease that is not already present, or at least not yet widely prevalent. I cannot meaningfully "introduce" a chemical into a substance where it is already present, nor "introduce" a person to someone she has already met.
Of course, it is also possible to argue "introduction" includes even the movement of additional carriers of a disease that is already widespread in the US. But that interpretation is both less linguistically plausible, and raises serious constitutional problems. By that standard, the CDC could use Section 265 to expel virtually any migrant from any country. Communicable diseases exist everywhere in the world, and every person could potentially be a carrier of one or more of them.
Such boundless delegation of deportation authority would clearly violate the nondelegation doctrine, a point emphasized by several of the lower court rulings striking down the eviction moratorium. At the very least, interpreting Section 265 in this way violates the longstanding rule that courts must, where at all possible, interpret federal statutes in a way that avoids raising serious constitutional problems. Adopting the narrower interpretation of "introduction" satisfies that rule, whereas the broad one does not.
If you thought the Trump and Biden administrations abused their powers when they adopted the eviction moratoria, and that the courts were right to rule against them, you should also oppose the Title 42 expulsion order for the same reason. Both are dangerous executive power grabs that undermine the separation of powers, and could easily be abused if left unchecked. As always, even if you trust a president of your own preferred party with such vast power, you probably don't have the same faith in the other party.
Judge Sullivan's ruling also includes a number of other issues, related to class certification and remedies. I will leave those to people expert on those topics. It is notable that Judge Sullivan has issued an injunction against the Title 42 policy, though he has temporarily stayed it for 14 days. The injunction will go into effect at that time, unless further stayed by a higher court.
The Biden administration has appealed the district court ruling to the DC Circuit, and perhaps eventually to the Supreme Court. This legal battle is far from over.
It's unlikely the administration will listen to me. But I hope they reconsider the appeal, and instead simply accept the district court decision. Do they really want the next GOP president to have the power to use the CDC to expel virtually any migrants at any time he wants? For reasons discussed above, that is the likely result of an administration victory in this case. Such a legacy would be radically at odds with Biden's promises to protect migrants and refugees, and reclaim "Americas values" as a "nation of immigrants."
UPDATE: I should note that, while the logic of the decision indicates that all Title 42 expulsions are illegal, the injunction issued by the court is limited to banning expulsion of migrant families, because that is the class certified at the behest of the plaintiffs. See the decision itself for a more detailed explanation (pp. 19-32).