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Lucas Guttentag and Stefano M. Bertozzi, May 11, 2020
"For more than a month, under the guise of fighting the coronavirus, the Trump administration has used the nation’s public health laws as a pretext for summarily deporting refugees and children at the border.
This new border policy runs roughshod over legal rights, distracts from meaningful measures to prevent spread of the coronavirus and undermines confidence in the Centers for Disease Control and Prevention, the nation’s top health protection agency, which delivered the directive that imposes these deportations.
The administration has weaponized an arcane provision of a quarantine law first enacted in 1893 and revised in 1944 to order the blanket deportation of asylum-seekers and unaccompanied minors at the Mexican border without any testing or finding of disease or contagion. Legal rights to hearings, appeals, asylum screening and the child-specific procedures are all ignored.
More than 20,000 people have been deported under the order, including at least 400 children in just the first few weeks, according to the administration and news reports. Though the order was justified as a short-term emergency measure, the indiscriminate deportations continue unchecked and the authorization has been extended and is subject to continued renewal.
The deportation policy was issued by the C.D.C. based on an unprecedented interpretation of the public health laws. The policy bears the unmistakable markings of a White House strategy imposed on the C.D.C. and designed to circumvent prior court rulings to achieve the administration’s political goals.
Our immigration laws guarantee that any noncitizen “irrespective” of status, no matter how they arrive, is entitled to an asylum process. U.S. law has adopted the international obligation that refugees cannot be returned “in any manner whatsoever” to a place where they risk persecution. The courts have protected these rights again and again. When the administration tried to impose an asylum ban more than a year ago, the U.S. Court of Appeals for the Ninth Circuit blocked it, calling it an “end-run” around Congress, a decision the Supreme Court refused to overturn.
Now, with the C.D.C. directive, the administration is imposing an even more sweeping prohibition on asylum by exploiting pandemic fears, and U.S. Border and Customs Protection is labeling the policy a public health “expulsion” instead of an immigration deportation.
Despite what the administration says, the order is not part of any coherent plan to stop border travel or prevent introduction or spread of contagious people or the virus, which is already widespread in the United States. Nothing limits travel from Mexico or Canada by truck drivers, those traveling for commercial or educational purposes, and many others, including green card holders and U.S. citizens. And the restrictions that exist do not apply at all to travel if it’s by airplane.
The administration’s order is like a bull's-eye drawn on the side of a barn around an arrow that’s already been shot. The targets are refugees and unaccompanied children, and the policy is designed to thwart their rights.
The order claims a public health purpose by saying it’s addressing the danger of crowded conditions at Border Patrol stations, noting that these stations are not equipped to quarantine people who may be infected with Covid-19, or to treat them medically. That’s a problem of the Border Patrol’s own creation and can be solved by changing procedures and detention practices. This medically gerrymandered definition of dangerous crowding is meant to deport those who are entitled to protection, while leaving others who pose an equal or greater risk untouched.
If the concern were truly congregate locations, the administration would address the dangerous conditions at immigration jails and prisons. If supermarkets can space out shoppers, the Border Patrol can adopt emergency processing measures to ensure sufficient distancing.
The law that the administration invokes allows the government to suspend through quarantine the introduction of goods and persons into the U.S. — not to issue deportation orders. Importantly, when that law was first enacted, Congress rejected calls for targeting immigrants. It recognized that any traveler — regardless of citizenship — could arrive here carrying a communicable disease and that any law addressing that concern should apply equally to all.
And critically, since that law was updated more than 75 years ago, Congress has enacted landmark refugee and child protection laws that the administration is now trying to evade.
The United States and the rest of the world face a pandemic of unknown scope and duration that has led to the greatest social and economic disruption in recent history. But the dangers we face are not limited to the pandemic alone. The risk is also that governments will abuse the emergency to abandon the rule of law and adopt discriminatory measures targeting those they disfavor.
Protecting public health and ensuring fair procedures for refugees and children are both essential. They are not in conflict and can be served side by side. Proper screening for both is possible. Neither needs to be sacrificed for the other.
The administration’s order expelling refugees and children tarnishes the C.D.C., does nothing to protect public health, targets the most vulnerable, tramples their rights and cloaks the deportations as fighting the coronavirus in order to escape accountability. “Flattening the curve” should not be an excuse for dismantling the law."
Lucas Guttentag, a professor at Stanford Law School and a senior scholar at Yale Law School, served as senior counselor in the Department of Homeland Security during the Obama administration. Stefano M. Bertozzi, a physician and health economist, is professor of health policy and management and dean emeritus at the School of Public Health at the University of California, Berkeley.