Administration Extends Title 42 Policy Indefinitely

By Preston Huennekens | FAIR Take | May 2020

On May 19, the Centers for Disease Control (CDC) announced the indefinite extension of Title 42 restrictions on foreigners entering the United States. Primarily, this allows the U.S. to quickly deny the entry of anyone traveling legally or illegally from a foreign country with widespread coronavirus infection rates. Title 42 is an important tool at the government’s disposal to slow the spread of this contagious disease from foreigners.

Title 42 refers to 42 U.S. Code § 265. This law gives the Surgeon General powers to prevent the spread of communicable diseases in the United States. The law reads that the Surgeon General “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.”

The latest order is broad and restricts all foreign nationals, regardless of national origin, from entry into the United States if travelling through Mexico or Canada. The order is indefinite, but the CDC will review conditions every 30 days and may lift these restrictions if and when the coronavirus pandemic begins to subside in the United States. This targets mainly illegal aliens attempting to enter through Canada or Mexico and applies to both land ports of entry and marine waterways, including the Rio Grande. In essence, the order allows Customs and Border Protection (CBP) officers to quickly remove illegal aliens without the requirement of court hearings.

Art Arthur with the Center for Immigration Studies argues that this new order may attract greater scrutiny, writing that “Unlike the prior orders, this one (as noted) is indefinite, and therefore likely more susceptible to court challenge. The litigation risk of this order, however, is significantly diminished by the fact that CDC will ‘reassess the Order every 30 days to determine whether the latest relevant information regarding the COVID-19 pandemic warrants continued implementation, or whether the Order should be modified or terminated.’ As long as the travel of Americans in the several states is limited, this order will likely be in effect, but again, even that is subject to change and monthly reassessment.”

The American Civil Liberties Union (ACLU) already blasted the announcement in a statement charging that President Trump “is hellbent on exploiting a public health crisis to achieve his long-held goal of ending asylum at the border.” Regardless of the ACLU’s imaginative claims, this order will almost certainly help reduce the further spread of coronavirus from foreigners entering the United States, particularly from Mexico, where cases continue to soar.

A copy of the full order is available here. The first examination of the order is due after June 18, 2020, 30 days from the issuance of the order.