Title 42: A Public Health or Immigration Measure?

By: Allie Tong

Edited By: Joni Rosenberg and Tess Ballis

         Enacted in 1944, Title 42 is a public health measure that gives the Centers for Disease Control and Prevention (CDC) the jurisdiction to determine whether a communicable disease in a foreign country poses a danger of spreading to the United States. If the CDC determines that a disease is a threat and receives presidential approval, it can temporarily prohibit foreign people and property that pose risks from entering the U.S.[1]

         In March 2020, former president Donald Trump enacted Title 42 in response to the COVID-19 pandemic. However, his administration approached with a novel interpretation; under Title 42, border patrols could rapidly expel migrants at the U.S. border for “public health reasons”.[2] Similarly, the Biden administration has perpetuated the same narrative that Title 42 is a public health measure.

         Despite these claims from the Trump and Biden administrations, CDC officials have openly stated that Title 42 does little in preventing the spread of COVID-19, condemning it as “scientifically baseless and politically motivated” in a message to the Biden administration.[3] While over 1.2 million expulsions have been carried out under this law since the start of the pandemic, nearly 11 million people cross the southern border every month. Despite the constant influx of immigrants, there has been no evidence connecting the spread of COVID-19 to the migrants that Title 42 targets, indicating that this policy does little to protect Americans from the virus.[4] Also, the U.S.’s international borders largely remain open to Western travelers, implying that there is no public-health motivated need to turn away refugees at the southern border and expel them to their home countries.

         Additionally, there is an argument that Title 42 has the opposite effect of the purpose the Biden administration claims it serves. By rounding up hundreds of thousands of immigrants, failing to offer COVID-19 tests, and holding these immigrants for days and often even weeks, the expulsion policy is actually increasing the transmission of the virus. Moreover, Mexican border cities are already struggling to prevent the spread of COVID-19, and with the U.S. sending so many immigrants back across the border at such a fast rate, shelters in these cities are quickly overcrowding. Maintaining social distance and controlling the spread of the virus are impossible tasks. 

         However, one interpretation is that the spread of COVID-19 in this situation is contained in the migrant community, meaning that Title 42 does technically protect the American population from COVID-19. This then becomes a question of whether Title 42’s public health protections include immigrants. The CDC’s and the United Nations’s answers to this question is that the purposes of public health are to prevent disease, to prolong life, and to promote health regardless of national borders, hence drawing a conclusion that Title 42 threatens, rather than protects, the public health.[5]

         Under the conclusion that Title 42 is not a public health policy, it should instead be treated as an immigration measure. Asylum is a protection granted to foreign nationals already in the U.S. or at the border who are unable to return to their home country due to past persecution or a well-founded fear of persecution in the future “on account of race, religion, nationality, membership in a particular social group, or political opinion”.[6] Under the UN 1967 Protocol, the U.S. has legal obligations to provide protection to those who qualify as refugees. However, Title 42 violates this long-standing guaranteed right to seek asylum, therefore making it illegitimate in the context of immigration law. This same conclusion was reached by Judge Emmet Sullivan of the U.S. District Court for the District of Columbia, stating that expelling asylum-seekers denies them the "opportunity to seek humanitarian benefits".[7]

         Title 42 is therefore an immigration measure disguised as a public health effort. The policy’s main intention is to limit immigration exclusively coming from the U.S.’s southern border. Title 42 follows America’s longstanding anti-immigration sentiments towards Latinx communities that are rooted in racist and xenophobic fears, rather than any legal or rational basis.

Notes:

1. Andrea Castillo and Karen Garcia, “Title 42 Explained: The Obscure Public Health Policy at the Center of a U.S. Border Fight,” Los Angeles Times (Los Angeles Times, October 25, 2021), https://www.latimes.com/politics/story/2021-10-25/what-is-title-42-how-does-it-impact-us-border-immigration. 

2. Andrea Castillo and Karen Garcia, “Title 42 Explained: The Obscure Public Health Policy at the Center of a U.S. Border Fight”.

3. “Press Release - Epidemiologists and Public Health Experts Implore,” Press Release - Epidemiologists and Public Health Experts Implore Biden Administration to End Title 42 and Restart Asylum, September 30, 2021, https://www.publichealth.columbia.edu/research/program-forced-migration-and-health/press-release-epidemiologists-and-public-health-experts-implore-biden-administration-end-title-42.

4. “A Guide to Title 42 Expulsions at the Border,” American Immigration Council, October 15, 2021, https://www.americanimmigrationcouncil.org/research/guide-title-42-expulsions-border.

5. “Press Release - Epidemiologists and Public Health Experts Implore”.

6. “Asylum in the United States,” American Immigration Council, February 26, 2021, https://www.americanimmigrationcouncil.org/research/asylum-united-states.

7. Camilo Montoya-Galvez, “Judge Rules U.S. Can't Expel Migrant Families Using Public Health Law,” CBS News (CBS Interactive, September 16, 2021), https://www.cbsnews.com/news/immigration-title-42-judge-expel-migrant-families-public-health-law/.

Bibliography:

Aguilera, Jasmine. “What Health Experts Say about Biden's Title 42 and Covid-19.” Time. Time, October 12, 2021. https://time.com/6105055/biden-title-42-covid-19/. 

“Asylum in the United States.” American Immigration Council, February 26, 2021. https://www.americanimmigrationcouncil.org/research/asylum-united-states. 

Castillo, Andrea, and Karen Garcia. “Title 42 Explained: The Obscure Public Health Policy at the Center of a U.S. Border Fight.” Los Angeles Times. Los Angeles Times, October 25, 2021. https://www.latimes.com/politics/story/2021-10-25/what-is-title-42-how-does-it-impact-us-border-immigration. 

“A Guide to Title 42 Expulsions at the Border.” American Immigration Council, October 15, 2021. https://www.americanimmigrationcouncil.org/research/guide-title-42-expulsions-border. 

Montoya-Galvez, Camilo. “Judge Rules U.S. Can't Expel Migrant Families Using Public Health Law.” CBS News. CBS Interactive, September 16, 2021. https://www.cbsnews.com/news/immigration-title-42-judge-expel-migrant-families-public-health-law/. 

“Press Release - Epidemiologists and Public Health Experts Implore.” Press Release - Epidemiologists and Public Health Experts Implore Biden Administration to End Title 42 and Restart Asylum, September 30, 2021. https://www.publichealth.columbia.edu/research/program-forced-migration-and-health/press-release-epidemiologists-and-public-health-experts-implore-biden-administration-end-title-42.