Immigration

Federal Court Rules Against Title 42 "Public Health" Expulsions of Migrants

The expulsions, ordered by the CDC for the supposed purpose of stopping the spread of Covid-19, are illegal for much the same reasons as was the CDC eviction moratorium recently struck down by the Supreme Court.

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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).

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  1. Is there anything, anything at all, that Somin believes would warrant control of our borders?

    1. Only against armies literally trying to invade.

    2. I’m pretty sure he keeps tight control of his own private borders.

    3. It’s telling how much you prefer to attack the person not the arguments on his threads.

      Like, I disagree with him too, but the vitriol you folks have is pretty telling about where you’re coming from.

      1. They’re mostly disaffected, knuckle-dragging bigots who have been lathered by the likes of Republicans, Trump, and the management of this blog. They’re genuinely seething because of all of this damned progress, tolerance, education, reason, science, modernity and inclusiveness.

  2. I suppose it’s possible that the President wants to “avoid[] attacks from the right,” but if so he’s finding a strange way of going about it, with many of his policies.

  3. Statista claim that 142 million people have stated they would come to the US. 14,000 a week is sinking the Border Patrol, so what a lot to look forward to!

  4. Stop treating America as if it’s the frontier. Those days are over. We have sovereignty and enforceable borders. Like every other nation on this planet. Immigration is fine. Flooding the border with poor refugees is a recipe for disaster and crisis.

    1. Stop ignoring the constitution and point out where it enumerates immigration control. If you want to claim that every government does so, then explain (a) why the US didn’t for its first 100 years, and (b) why it was necessary to enumerate the military.

      Don’t pretend the military enumeration took the military as a given and merely described how, unless you can also explain why there is no similar enumeration of how to control immigration.

      1. The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

        The Constitution would not have needed to limit this unless the Founders thought that Congress would otherwise have the power to do that, and if Congress has the power to forbid migration, it must logically also have the power to regulate it.

        1. Thats right. The power to prohibit immigration is an express, enumerated constitutional power of Congress. It’s unusual that it came into effect later than the rest of the Constitution, but its an enumerated power all the same. “Importation” is a power to bring aliens into the country against their will. The power is completely plenary. It certainly includes the power to keep them out against their will.

        2. “Importation” means property. You don’t import people, you import slaves. You and everybody else knows that is about slavery. Pretending there is no difference is just political speak worthy of the Confederacy.

          1. Reading comprehension: FAIL!

            By the plain language of the Constitution Congress can prohibit migration, not just importation. The only “pretending” that is going on here is that you are pretending to have read the quote.

          2. The second word of that paragraph is Migration. Importation comes after that

          3. The importation clause still applies.

            The United States Supreme Court explicitly upheld the right of the United States to kidnap an extraterritorial alien and forcibly bring him into the United States in United States v. Alvarez-Machain, holding that because extraterritorial aliens have no Fourth Amendment rights, they have no right to be free from seizures.

            More basically, neither fetuses nor extraterritorial aliens have constitutional rights. The Supreme Court reaffirmed this fact regarding extraterritorial aliens only last term. The Roe line of cases stands for the proposition, agree with it or not, that no constitutional rights is equivalent to no constitutional personhood.

  5. Emmitt Sullivan, you say?

    1. Yes, THAT Emmitt Sullivan

      1. The “US vs Flynn” lawless Emmitt Sullivan.

    2. No, Emmet (G.) Sullivan.

      Or maybe Yes, The Bruce Dickinson.

      1. Not getting the Iron Maiden reference.

  6. illegals don’t have to sacrifice their liberties in the name of stopping covid like he expects citizens to in a blanket draconian fashion. Covid magically respects illegal immigrants and selectively won’t attack their overcrowded camps I guess. What a libertarian.

  7. Seems a bit backwards…

    The SG can prohibit people from entering in the country, if there’s a risk of disease. Fair enough. But if they enter the country ANYWAY, when they are caught at the border, there’s no authority to expel them?

    You know, it’s one thing if the SG was using this law to sweep through every Californian city to expel illegal immigrants. That would be wrong.

    But what the SG is actually doing is stopping immigrants at the border and turning them around. Which is the entire point of the law. But under this odd reading, if you stop an immigrant at the border…but then they step over it…the SG can’t do anything. If they land on a plane….the SG can’t do anything. It basically neuters the law.

    1. It absolutely would NOT be wrong to expel illegals.

      But Sullivan’s (and apparently Somin’s) reading of the law is absurd retarded lunacy. He says “As Plaintiffs point out, Section 265 simply contains no mention of the word “expel”—or any synonyms thereof—within its text….” But the law in fact says “…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.” And, as you point out, if the fact that they are already here meant that you could no longer ~”prohibit their introduction” (i.e., expel them) then the law would be meaningless.

      Somin plays further nonsense games with the word “introduce”, saying that once the disease is present it can no longer be “introduced”, so the long no longer applies to diseased border crossers. Apparently once you’ve made the mistake of letting in one asymptomatic COVID carrier it’s game over.

      Sheesh.

      1. Sullivan didnt exactly demonstrate an understanding of law with the flynn case

        1. I wouldn’t say that. There’s understanding the law, and caring about the law. I think his actual problem is with the latter.

      2. “Somin plays further nonsense games with the word “introduce””
        Somin is wrong in that new variants develop in many place. The Mu variant of interest originate in Colombia. Presently there are not any significant cases in the US of that variant which has a much greater ability to avoid detection by the immune system.
        So that disease can be introduced into the US by travelers from the South.

  8. Going back to the country you just recently left is not a “penalty”, let alone a “severe” one. One might ask how people can be prohibited from the US without being expelled.

    Maybe the judge is arguing that the only acceptable answer is a wall.

    1. Somin in arguing for a wall too. Built on the very edge of the border, apparently, since he seems unaware that someone not legally present/admitted is deemed to not need expulsion to be sent back even if they get their feet physically onto US soil.

      That seems like a pretty basic thing to not understand. Sort of like the people who don’t understand that merely getting onto US soil doesn’t entitle you to an Article III court date.

    2. Going back to the country you just recently left is not a “penalty”, let alone a “severe” one.

      The Jews of the MS St. Louis say hello.

      1. No clue what that is, but I’ll guess that you’re saying that everything that happens to anyone every day is the same as one specific very dramatic historic event.

        Like telling people that have to leave the stadium because they never bought a ticket is exactly like throwing stowaways in the ocean to be eaten by sharks.

        It’s always the same lame dramatics with some people.

        1. You don’t know the law. You don’t now history. And you don’t want to know, preferring to just remain ignorant so your spiteful ideals will not be challenged.

          https://en.wikipedia.org/wiki/MS_St._Louis

          1. It’s amazing that your side still has no argument other than implying (or explicitly adding) everyone you dislike are essentially Nazis.

            Declining to admit those passengers was wrong, but neither illegal nor a punishment. The only punishments involved were the gross injustices the German government perpetrated on so many of them.

            If you are going to argue that we have a moral responsibility to take in everyone who might be victimized by criminals in a failed state, then I will respond that the same logic gives us a moral authority to take the reins and establish a functioning government instead.

            1. That’s not what DMN said, and it’s not what I said.

              Telling you keep seeing people calling you a Nazi when no one is.

              1. That’s not what you said, but it is what you implied.

                And I never said you were comparing me (or any American) to a Nazi, but you must have had that comparison in mind to think I meant that.

  9. Prohibiting “the introduction of persons” doesn’t extend to a power to expell them in pretty much the same way that the federal power to build post roads doesn’t extend to a power to build canals or railroads, or “equal protection of the laws” doesn’t extend to a power to prohibit segregation or lynching.

    That is, only a person utterly ideologically opposed to what the law plainly provides for would read it so narrowly as to effectively render it meaningless. No fair, neutral reading would reach this conclusion.

    The judge’s paint-the-government-into-a-corner interpretation of this law (calling it cramped is way too charitable) reads very much like 19th century interpretations of federal power over transportation, or early 20th century segregationist interpretations of federal civil rights power.

    1. This is the lawless US vs Flynn so-called judge Emmett Sullivan.
      I wouldn’t expect better from him.
      But Somin clowning himself like this is revelatory.

      1. Only to people who haven’t been paying attention. Somin is an utter fanatic on this particular topic.

  10. Every drop of blood spilled from these desperate and dangerous attempts to game our asylum laws is on the hands of the Marco Rubios and AOCs of America!! These foreigners make decisions based on nothing more than rumors they hear from god knows where…this is a national disgrace!

    And Trump was apparently building fences to stop Mexican turtles from entering America in the middle of the desert just so he could run on x amount of miles of wall built?!? Furthermore, we just flushed $6 trillion down a toilet in the Middle East!?! Everyone on this site respects the property rights of these landowners in Texas but we are just going to have to bite the bullet and make them new lottery winners so the federal government can acquire their land and build fencing where we actually need it!!

    1. No, Trump didn’t run up the score. He built virtually no new wall.

      AFAIK Texas landowners whose land was acquired to build wall (though little was actually built) got paid already for any land acquired.

  11. But what about Order 66? Silent on that notorious piece of paper, huh?

  12. Emmett Sullivan. Now that’s a familiar name. Indeed, this is the same judge that appointed himself prosecutor, judge and jury in the Michael Flynn case. No one has brought American “justice” into greater disrepute than this hack partisan caricature of a judge. As the Wall Street Journal noted:

    It’s tempting to say that Judge Emmet Sullivan’s final ruling in the Michael Flynn case reduced the judiciary to the level of the Federal Bureau of Investigation. But that would be unfair to today’s law enforcement.

    Judge Sullivan finally, belatedly, churlishly dismissed the Flynn case as moot on Tuesday, two weeks after President Trump pardoned the former national security adviser. But the self-important Judge Sullivan couldn’t resist delivering a parting “verdict.” He issued a 43-page opinion in which he all but declared Mr. Flynn guilty of lying and perjury and the entire Justice Department corrupt.

    Attorney General William Barr has at least been attempting to atone for the FBI’s and Justice Department’s scurrilous behavior during the 2016 campaign and after Mr. Trump’s election. Earlier this year Mr. Barr assigned a veteran prosecutor, Jeffrey Jensen, to review the original Flynn case—amid growing evidence the FBI had entrapped him and that special counsel Robert Mueller’s prosecutors had pressured him to plead guilty of lying to the bureau. Mr. Jensen’s findings were unequivocal. He said the FBI’s January 2017 interview of Mr. Flynn should never have happened, as it was “untethered” to a legitimate investigation. Mr. Jensen recommended the charges be dropped, which the department officially asked Judge Sullivan to do in May.

    1. You’re obviously quoting something, since Sullivan did not in fact dismiss the Flynn case on Tuesday. You are quoting a liar, since there was not even something pretending to look like evidence that the FBI had “entrapped” Flynn — only someone who didn’t know what the word meant could make that claim — and Flynn admitted his guilt multiple times under oath.

      1. That sounds like a regurgitation of an opinion column authored by a clinger and published by the Wall Street Journal when the clingerverse was attempting to salvage Flynn’s reputation.

      2. David Nieporent
        September.19.2021 at 5:54 am
        Flag Comment Mute User
        “You’re obviously quoting something, since Sullivan did not in fact dismiss the Flynn case on Tuesday. You are quoting a liar, since there was not even something pretending to look like evidence that the FBI had “entrapped” Flynn — only someone who didn’t know what the word meant could make that claim — and Flynn admitted his guilt multiple times under oath.”

        David – you might actually look at the record instead of left wing propaganda

        1. DMN probably is still in denial about Judge Sullivan accusing Flynn of treason when no one involved in the case had ever suggested such a thing.

  13. Somin: “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.”

    Nonsense. The power isn’t remotely boundless. By the plain language of the law, “…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.” So, not only must the expulsions be “in accordance with regulations approved by the President” but, contrary to Sullavan’s silly assertion that “prohibit…the introduction of persons” is somehow different than expulsion of persons not legally present, expulsion is explicitly the power given to the Surgeon General in a way not remotely similar to the purported power to prevent expulsions. It’s hard to credit that Somin is being serious when he emits nonsense like this.

    1. Argh. That should read “the purported power to prevent EVICTIONS.”

  14. This clown is still on the bench?

  15. So the Haitians stay under the bridge, and don’t get flown back to Haiti?

  16. Ilya – there is a significant difference between the Eviction mortatorium and immigrant expulsion

    There was virtually no scientific evidence that the eviction mortatorium would slow the spread of Covid, that is credible scientific evidence.
    Where as there are a high percentage of immigrants with covid entering the US.

  17. This decision is kind of bizarre, you’d be hard put to find a category of expulsion that had a better claim to be legally permitted.

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