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Title 42

Background

Nearly 2 million immigrants have been expelled from the United States since the federal government began employing a public health policy to police its southern border. Title 42 is a 1944 public health law invoked by the Centers for Disease Control and Prevention that empowers border enforcement agencies to remove migrants crossing into the United States, including those hoping to apply for asylum.

Section 265 of U.S. Code Title 42 permits the Director of the CDC to “prohibit … the introduction” into the United States of individuals when the director believes that “there is serious danger of the introduction of [a communicable] disease into the United States.”

The Trump administration’s Department of Health and Human Services first issued a regulation to implement Title 42 in March 2020, ostensibly to prevent the spread of the coronavirus. However, subsequent reporting proved the order did not originate in the CDC, but with the political appointees of Donald Trump. Top CDC scientists “refused to comply with a Trump administration directive, saying there was no valid public health reason to issue it,” according to the LA Times. Vice President Mike Pence stepped in and ordered then-CDC Director Robert Redfield to employ Title 42 anyway.

“The decision to halt asylum processes ‘to protect the public health’ is not based on evidence or science,” wrote Dr. Anthony So, an international public health expert at Johns Hopkins Bloomberg School of Public Health, in a letter to Redfield in April. “This order directly endangers tens of thousands of lives and threatens to amplify dangerous anti-immigrant sentiment and xenophobia.”

Former Trump aide and current white nationalist ideologue Stephen Miller had tried to use disease as reason to close the border for years prior to the spread of the coronavirus.

Mr. Miller pushed for invoking the president’s broad public health powers in 2019, when an outbreak of mumps spread through immigration detention facilities in six states. He tried again that year when Border Patrol stations were hit with the flu.

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.

In 2018, dozens of migrants became seriously ill in federal custody, and two under the age of 10 died within three weeks of each other. While many viewed the incidents as resulting from negligence on the part of the border authorities, Mr. Miller instead argued that they supported his argument that President Trump should use his public health powers to justify sealing the borders.

Lawsuits

After continuing the use of Title 42 to expel migrants at the southern border for over a year, the Biden administration announced that it plans to end the policy on May 23. The Attorneys General of Arizona, Louisiana, and Missouri immediately filed a lawsuit seeking to keep Title 42 in place (pdf). They were later joined by more than a dozen other states: Alabama, Alaska, Arkansas, Florida, Georgia, Kansas, Kentucky, Mississippi, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, Utah, West Virginia, and Wyoming.

The states argue that the federal government “failed to consider obvious and relevant consequences of the Termination Order, such as the public health and public policy consequences of the emergence of new variants of the COVID-19 virus.” They further cite “members of President Biden’s own party” who have criticized the lifting of Title 42:

Senator Joe Manchin warned in a letter to President Biden that, “[w]ith encounters along our southern border surging and the highly transmissible Omicron BA.2 subvariant emerging as the dominate strain in the United States, now is not the time to throw caution to the wind” and cancel the Title 42 policy.

On Friday, Texas Attorney General Ken Paxton (R) brought his own lawsuit to ensure that Title 42 remains in effect (pdf). Paxton cites the “harm” Texas will face due to “the increased presence of illegal aliens with COVID-19 who otherwise would have been excluded from the country under Title 42” as reason to continue blocking all immigration at the southern border.

• Note: In a calculated move, Paxton filed his complaint with a division of the Southern District of Texas court that only has one active judge: Trump appointed Judge Drew Tipton. You may remember Tipton from his 2021 rulings ordering ICE not to prioritize national security threats, forcing the reinstatement of ‘Remain in Mexico’, and blocking Biden’s 100-day pause on deportations. Indeed, it appears that Tipton is Paxton’s go-to judge for undermining the president’s ability to set national immigration policy.

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Mask mandate

Many of the same states that cite the danger of the coronavirus as rationale for keeping Title 42 also brought suit against the CDC to block its mandate requiring masks on transportation like buses or airplanes and in transportation hubs like airports (pdf). Alabama, Alaska, Arizona, Arkansas, Florida, Georgia, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Utah, and West Virginia are plaintiffs in both cases.

Texas likewise brought its own case arguing against the transportation mask mandate (pdf).

Gov. Ron DeSantis cites the “large downward trend” of COVID-19 case numbers and hospitalizations as reason to allow travelers to commute unmasked.

Ultimately, the two above lawsuits did not result in a ruling against the Biden administration; one brought by a Wyoming-based advocacy group called the Health Freedom Defense Fund and two Florida residents did.

Ruling

Judge Kathryn Kimball Mizelle, a Trump appointee, ruled last week that the CDC exceeded its legal authority in issuing the masking order (pdf). Mizelle was just 33 years old when she was given a lifetime appointment, had only been practicing law for 8 years, and received a “not qualified” rating by the American Bar Association. She had never tried a case as a lead attorney.

Perhaps her most striking qualification, at least to the Republican-controlled Senate, was her clerkship for Supreme Court Justice Clarence Thomas (whose wife went on to advocate for a coup) and two other members of the Federalist Society. Conservative senators voted to confirm Mizelle 10 days after Trump had lost the 2020 election.

To reach her determination, Mizelle invented her own definition of “sanitation” to exclude face masks. The word is specifically found in the Public Health Service Act of 1944, which gives federal health authorities broad powers “to prevent the introduction, transmission, or spread of communicable diseases” by means of interstate modes of transport. The federal government may do so by establishing rules related to “inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings,” as well as by “other measures” that in their “judgment may be necessary” (emphasis mine).

To Mizelle, sanitation does not mean what the dictionary says it means. While the Collins Dictionary states “sanitation is the process of keeping places clean and healthy,” Mizelle asserts it actually refers “to measures that clean something, not ones that keep something clean.”

“Wearing a mask cleans nothing. At most, it traps virus droplets,” Mizelle wrote. “But it neither ‘sanitizes’ the person wearing the mask nor ‘sanitizes’ the conveyances.”

She reaches this interpretation by citing a 1990 Supreme Court opinion that “[w]ords grouped in a list should be given related meaning,” and pointing to the words in the Public Health Service Act surrounding “sanitation”: “fumigation, disinfection…pest extermination…”. All these words, she asserts, clean something up that is already dirty. Which masks do not do.

Therefore, the CDC has no grounds to require the wearing of masks.

“It reads like someone who had decided the case and then tried to dress it up as legal reasoning without actually doing the legal reasoning,” [said Erin Fuse Brown, a law professor at Georgia State University]…

Appeal

The Justice Department appealed the ruling, though the mask mandate was set to expire in a little over a week anyway. The reason for the appeal is the danger of Mizelle’s reasoning to the federal government’s power to enact policy. Not least because Mizelle is a single unelected judge making policy in place of the democratically elected president, but also because she upends decades of judicial precedent. When a statute is ambiguous and an agency’s interpretation is reasonable, judges are supposed to defer to the agency.

In regards to future pandemics, specifically, Mizelle’s ruling limits the ability of the federal government to combat contagious disease. The same law she undermines also grants the CDC authority to require quarantine and isolation of infected individuals, and to inspect animals that could transmit disease. We may fail to address a future, more dangerous contagion if Mizelle’s ruling is left standing.