Title 42 is an expulsion public-health policy that the Centers for Disease Control and Prevention (CDC) order executed under Section 362 of the Public Health Service Act of 1944. The law was designed to give quarantine authority to health officials—specifically the Surgeon General— in the interest of public health in order to prohibit foreign or domestic arrival from a foreign country that is deemed a “serious danger of the introduction of a communicable disease” (Staffer). The order prohibits entry for immigrants traveling by land who lack valid paperwork. The public health rule was invoked in March 2020 by President Donald Trump in order to combat the spread of covid-19. Under Title 42, U.S. Customs and Border Patrol (CBP) can rapidly expel certain migrants to Mexico, instead of putting them through formal deportation proceedings and processes; it aimed to seal America’s borders from migrants, allowing the immediate expulsion of border-crossers, including asylum-seekers. And here lies the issue.
I argue that Title 42 possessed undemocratic principles in terms of respect for the rule of law towards asylum seekers. According to Huq and Ginsburg and their claim on constitutional retrogression in How to Lose a Constitutional Democracy, incremental democratic erosion occurs in competitive elections, the rights of political speech and association, and the administration and adjudicative rule of law. Democracies have respect for the rule of law. The rule of law by definition is defined as: the political philosophy that all citizens and institutions within a country, state, or community are accountable to the same laws regardless of race, socioeconomic class, or gender. I argue that Title 42 has discriminated against the people of Haiti, Mexico, and other countries of non-European origin by denying them the legal process of asylum-seeking post-vaccine introduction and post-height of the pandemic. I also argue that the denial of asylum seeking is in fact a violation of personal liberties— and thus, democratic erosion.
According to the non-governmental organization Human Rights Watch, “Quarantine authority was never meant to be used to determine which noncitizens could or couldn’t be expelled or removed from the US. In debating the law’s predecessor provision, Congress specifically kept any reference to immigrants or immigration out of the law’s text because of concerns that public health authority could be used to discriminate against immigrants”. This discrimination against certain groups over others is a total violation of the rule of law. The order issued by the CDC along with the rule published in the Federal Register specifically bars one category of people entering the US, namely, individuals crossing the borders from Mexico or Canada.
Under the Trump Administration from March 2020 through February 2020, 1.7 million expulsions have been carried out under the policy, with 1.2 million of them being carried out during the Biden administration. During the Trump administration, 83 percent of migrant encounters at the border led to expulsions, compared to 55 percent so far under the Biden administration.
U.S. international law gives asylum seekers the right to seek asylum upon arrival in the United States, even if they arrive without inspection or prior authorization. The CBP is legally required to conduct non refoulement screenings to ensure they do not expel people who need protection. Those screenings are designed to ensure that no one risks torture or other likely serious harm after being expelled and returned to their country of origin. Title 42 has suspended this entirely.
But on April 1 of 2022, the CDC announced plans to terminate the order, stating that it’s no longer necessary given current public health conditions and the increased availability of vaccines and treatments for Covid-19. The policy was scheduled to end on May 23 but due to efforts by a coalition of Republican states— and a Louisiana judge who issued a preliminary injunction on Friday— the administration was blocked from ending the order on Monday. This would have allowed thousands of migrants arriving at the U.S. border each day to enter the immigration system and apply for asylum for the first time in over two years according to Politico.
Since Biden took office, Human Rights First says it’s identified nearly 10,000 cases of kidnapping, torture, rape or other violent attacks on people blocked or expelled to Mexico under Title 42.
Additionally, to further highlight the violations on an intentional scale of Title 42, Harold Koh, who was a senior legal advisor in the Biden Administration’s State Department published a memo arguing that invoking Title 42 violates two specific international treaties to which the United States is a “State Party”: the Convention Against Torture (CAT) and the 1951 Refugee Convention. Article 3 of the CAT “categorically prohibits State Parties from expelling, returning, or extraditing any people, without exception, to any State where there are ‘substantial grounds for believing he would be in danger of being subjected to torture”. Article 33 of the Refugee Convention “flatly prohibits State Parties from expelling or returning (‘refouler’) refugees in any manner whatsoever to ‘the frontiers of territories where their life or freedom would be threatened on one of [the designated grounds]”.
This is most evident in the differential treatment of Haitian and South American migrants compared to Afghan and Ukrainian migrants. Christina Staffer in her article,“Illegal and Inhumane”: An Analysis of Title 42’s International Health Law Violations, upon analyzing Koh’s memonotes how Title 42 applied to certain groups differently based on country of origin: “Discrimination in the application of Title 42 could hardly be more conspicuous: asylum-seekers are treated differently based on their country of origin or nationality. While Afghans are flown to processing centers stood up for that very purpose, Haitians are flown back to the country where they face what Koh describes in his memo as a ‘humanitarian nightmare.’”
Similarly in countries like Nicaragua, activists have been stated to have implore CBP agents to be allowed to present evidence of facing persecution and torture by their government, by still were expelled to Nicaragua and taken into custody.
President Biden in late April announced the “Unite for Ukraine” program that allowed individual Americans and nonprofits to sponsor Ukrainian refugees despite defending Title 42 in court for months. I believe that it is quite obvious as to why given their current circumstance. But if exemptions (and justifiably so) are being made for Ukrainians, then if Haitian migrants are fleeing from persecution, then there ought to be some exemptions for them as well.
It is clear that the rule of law is under fire in the arena of immigration, and it’s not just a partisan problem but consistent in American policy. The ability for asylum seeking is a personal right that is being violated under the guise of preventing the spread of covid-19 even though it is largely understood that health conditions are better and that vaccines have made it safe to travel. The differential treatment in the rule of law and violation of personal liberties is certainly a symptom of democratic erosion in this particular area.