As the highly contagious coronavirus continues to spread throughout the world, the unfortunate reality is that people continue to enter the United States from other countries. One of the primary avenues by which this is happening is through Mexico. As a result, President Trump is considering closing the U.S.-Mexico border to migrants and to those seeking asylum. While some have objected to the president’s possible conduct, the president will likely rely on several legal provisions to justify his proposed conduct.
According to 42 U.S. Code § 265, which pertains to the suspension of entries and imports from designated places to prevent the spread of communicable diseases:
Whenever the Surgeon General 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, the Surgeon General, in accordance with regulations approved by the President, 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.
While the president has indicated that he does not plan to close the border with Mexico at the present time, he does intend to invoke this section of the federal code. His decision to do so is entirely justified given the dangerous nature of this virus, the ease in which the virus is transmitted, the number of people infected, the fact that people can be asymptomatic yet spread the virus, and the mortality rate(s) associated with this virus. Moreover, the president, federal, and local governments have established guidelines within the United States and have implemented very strong measures in hopes of stopping the spread of this highly contagious virus.
It is difficult enough to implement these various guidelines and to treat/test all necessary people who are currently within the United States. Moreover, the introduction of individuals from other countries will only increase the likelihood of infection by virtue of increasing the number of possible “hosts” who could then re-infect others within the United States. As a matter of fact, as reported by The Hill, Mexico is under international criticism for its response to the coronavirus, as the number of infections continues to rise. This poses a public health risk to the United States.
Of course, this specific section of the code appears to permit such conduct when there is a danger of introducing a communicable disease into the United States. One obvious counterargument is that the virus is already in the United States and that prohibiting asylum seekers and migrants into the country will not prevent the introduction of a virus which is already in the country. On the other hand, the code does not state that prohibition is only permitted when a person is likely to introduce a communicable disease into the United States that has not yet entered/been diagnosed/seen in the United States. To the contrary, the fear is that these individuals could be infected with the coronavirus, re-introduce the virus, and infect others in the United States.
While the president has decided against closing the US/Mexico border, he could also possibly rely on Section 212(f) of the Immigration and Nationality Act if he subsequently decides to do so. Section (f) of the Act states:
“Whenever the president finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
Notably, the law permits the president to take such action when he believes that the entry of any aliens would be “detrimental to the interests of the United States. This standard is very general and broad. As explained in the Conservative Review, “that includes public welfare, health concerns, values, attitudes, etc.” In addition, the president’s power under this law is plenary, meaning that it is absolute and that the courts should not interfere with the president’s decision.
Incidentally, President Trump could also refer to Section 215(a)(1), which prohibits any alien from entering or departing the United States except under reasonable rules or regulations and subject to any limitations that the president may prescribe. Together, these two provisions allow the president to close the border and/or to set specific rules/conditions as to how people may apply fort entry.
In light of the public health risk posed by this virus, President Trump should seriously consider utilizing one or both of these sections to protect the country and its citizens. Doing so would not be racist or xenophobic. It would be a smart and necessary move by the nation’s commander-in-chief whose number one priority is, and always will be, the well-being of the country and its citizens.
This article is intended for informational purposes only. It is not intended to solicit business or to provide legal advice. You should not take, or refrain from taking, any legal action based upon the information contained in this article without first seeking professional counsel.
Mr. Hakim is a writer, commentator and a practicing attorney. His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, The Epoch Times, The Western Journal, American Thinker and other online publications.