Using Public Health as a Pretext to Restrict Immigration Would Violate the Law
Doing his best impression of Inspector Javert, Donald Trump’s henchman Stephen Miller is apparently spending the time before the inauguration turning over every rock to find some public health pretext to close the border to migrants.
Miller wants to use an authority people call “Title 42.” The actual statute he would invoke is Section 362 of the Public Health Service Act. It empowers the Director of the Centers for Disease Control and Prevention to “prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate,” when the Director “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.”
(Section 362, like the vast majority of federal health statutes, is codified in Title 42 of the U.S. Code, while immigration laws are typically codified in Title 8, so it’s common for folks in the immigration world to talk about this statute as “Title 42 authority.” The statute’s text gives the relevant power to the Surgeon General, but that power has been redelegated to the Director of the CDC.)
Back in the first Trump Administration, the CDC used the Public Health Service Act to restrict immigration in the early days of the coronavirus pandemic. President Trump kept the order in place through the end of his term, and President Biden initially did so as well (though he loosened it a bit in 2021). Biden tried to terminate the restriction entirely in April 2022, but a Trump-appointed federal judge in the Western District of Louisiana enjoined him from doing so. The Title 42 order continued until 2023, when the Biden Administration declared the end of the COVID-19 public health emergency.
For the whole sordid saga, you can read this CRS report or this explainer. As you’ll see, public health experts basically never thought the COVID Title 42 order was justified, and certainly not after the earliest days of the pandemic. And notable officials within the Biden Administration harshly criticized Biden’s continuation of the order.
But COVID wasn’t the first time Stephen Miller tried to use the Public Health Service Act to exclude migrants. It was just the first time he succeeded in pushing the policy through. For years, Miller had been searching for a public health pretext to close the border. As the New York Times reported, “When vast caravans of migrants surged toward the border in 2018, Mr. Miller looked for evidence that they carried illnesses. He asked for updates on American communities that received migrants to see if new disease was spreading there.” When some migrants became seriously ill in an immigration facility in 2018–illnesses that, according to the Times, many blamed on “negligence on the part of the border authorities”–he sought to use that as a pretext. And when immigration facilities experienced outbreaks of the mumps and the flu in 2019, Miller thought that was the ticket. But he did not get his chance to implement the border closure until the coronavirus pandemic broke out.
Now, like an oldies act playing its greatest hits in voices worn with age, Miller is yet again trying to find a public health rationale for closing the border. Yesterday’s Times report says that he has “spent recent months trying to find the right disease to build their case,” including “tuberculosis and other respiratory diseases” and just the general insinuation that any migrant might “carry unfamiliar disease.” In unusually plain speech, the Times reporters observe that the latter theory “echoes a racist notion with a long history in the United States that minorities transmit infections.”
So can he get away with it this time? I would be the first person to tell you that we can’t look to the courts to save us from the abuses of the new Trump term. But, as General Counsel of the Department of Health and Human Services from June 2022 to December 2024, I frequently advised CDC on the use of its authority under this and other provisions of the Public Health Service Act. Under any fair-minded reading, Miller’s plans to use public health as a pretext to close the border are unlawful.
The language of PHSA Section 362 contains several important terms of restriction. Invoking the Title 42 authority requires a determination of “the existence of” a “communicable disease in a foreign country”–not just the generalized supposition that migrants might carry diseases. The statute requires that the government determine that “there is serious danger of the introduction of such disease into the United States” (my emphasis). A disease that is already circulating meaningfully in the United States would not be “introduc[ed]” into the country by a new migrant, so it could not be the basis for a Title 42 order. And if migration posed a small risk of transmission, or the disease will not cause significant harm if it does spread to others, there would be no “serious danger” to justify the order.
The statute also makes clear that an order suspending migration must meet standards of necessity. It’s not enough that the CDC–much less a political apparatchik in the White House like Stephen Miller–thinks closing the border might be in some ways helpful to stopping the spread of disease. The suspension must be “required in the interest of the public health” (my emphasis). And the scope of the suspension must be limited to what is “necessary for [the] purpose” of “avert[ing] such danger.”
It’s true that this language appears in a provision that describes the findings the federal public health authorities need to make. (“Whenever the Surgeon General determines” … “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.”) But that does not mean that the CDC has unfettered authority to issue a Title 42 order whenever it decides to do so. In Section 362, Congress did not use broad, discretionary language like “whenever the Surgeon General deems appropriate”–even though discretionary language like that appears in plenty of statutes. Instead, it required the public health authorities to make specific determinations of serious danger and necessity to invoke the authority to suspend migration.
Indeed, the Supreme Court itself has made the point clear when addressing the CDC’s exercise of authority under Section 361 of the Public Health Service Act–a provision that sits right next to Section 362 in the statute books and has a very similar structure. On its face, Section 361 authorizes the Surgeon General “to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession” (my emphasis). (As with Section 362, the Surgeon General’s authority under Section 361 has been redelegated to the Director of the CDC.)
When the Supreme Court considered the CDC’s ban on certain evictions during the coronavirus public health emergency, the Administration pointed to the “as in his judgment are necessary” language of the statute. It argued that “the first sentence of § 361(a) gives the CDC broad authority to take whatever measures it deems necessary to control the spread of COVID–19.” But the Supreme Court rejected that argument. It said that the “as in his judgment are necessary” language had to be read in light of the rest of the provision, which made clear that Congress meant to limit the CDC’s discretion. The point holds even more strongly for Section 362, which does not even contain the “as in his judgment” language of Section 361.
In general, courts will, and should, give significant weight to the honest public health judgments of CDC’s experts. But they should not defer to the Executive Branch when, as here, the assertion of public health harm is merely a pretext for a policy that is really motivated by a desire to achieve broader goals of restricting immigration. As Justice Gorsuch said when a piece of the COVID Title 42 litigation came before the Court in late 2022, “the current border crisis is not a COVID crisis. And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency.”
That’s even more true now. Any problems that exist with migration are not a COVID crisis, a tuberculosis crisis, a mumps crisis, or a disease crisis of any kind. They’re an immigration policy issue that should be addressed by the use of the immigration authorities Congress has given the Executive Branch; they don’t justify use of the extraordinary powers of public health officials to restrict liberty in the face of a serious danger from communicable disease.
Again, I am not one to put my faith in courts. (Psalm 121 doesn’t say “I look to the courts.”) But there is useful precedent here. The first Trump Administration sought to add to the 2020 census a question asking whether the respondent was a U.S. citizen. The plain effect of asking that question would be to discourage noncitizens and members of Latino and other immigrant communities generally (who would fear becoming targets of immigration enforcement) from responding, and therefore to reduce the congressional representation of (largely Democratic-leaning) areas with significant concentrations of people in those categories. But that’s not why the Trump Administration said it was adding the question. Rather, they implausibly asserted that asking the citizenship question was necessary to enforce the Voting Rights Act–an assertion so ridiculous that my UMich colleague Leah Litman made a meme out of it.
The Executive Branch usually fights to prevent courts from identifying their real motivation for taking particular policy actions–and courts often go along with them, limiting challengers to the official story. But in the census case the official story was so clearly false that John Roberts, writing for a majority of the Supreme Court, said the addition of the citizenship question violated the Administrative Procedure Act. Presented “with an explanation for agency action that is incongruent with what the record reveals about the agency's priorities and decisionmaking process,” Roberts said “we cannot ignore the disconnect between the decision made and the explanation given. Our review is deferential, but we are ‘not required to exhibit a naiveté from which ordinary citizens are free.’” (The “naiveté” line came from a decision by the late Judge Henry Friendly, for whom Roberts served as a law clerk back in the day.)
The same would be true here, only more so. Stephen Miller has been going around for years telling practically everyone that he’s looking for a public health pretext to close the border. If Trump issues a new Title 42 order, and judges treat that order as legitimately motivated by public health experts’ conclusion that it is necessary to prevent a serious danger of the introduction of a communicable disease, the judges won’t just be exhibiting naiveté. They’ll be engaging in willful obtuseness. When the statute here is considered fairly, there is no good legal argument for what Trump and Miller are planning to do, and they’re barely trying to hide it.