Not in Our Name: The Disingenuous Use of "Public Health" as Justification for Title 42 Expulsions in the Era of the Migrant Protection Protocols

ABSTRACT

Sadly, Celina's experience at the US border is not uncommon, although her ultimate admission to the United States is rare indeed. Because ofthe confluence of MPP and the 2020 invocation of 42 US Code 265 (hereafter "Title 42"), an obscure public health policy last updated in 1944, more than a million expulsions of migrants and asylum seekers occurred at the US border in fiscal year 2021 alone, contrary to international law.1 POLICY BACKGROUND The policy known today as Title 42 originated in a 1944 law called the Public Health Service Act, which (among other things) granted the federal government quarantine powers and the power to prevent the introduction of disease at the border. Robert Redfield, then director of the Centers for Disease Control and Prevention (CDC), determined that introduction into congregate settings of persons from Canada or Mexico would increase the already serious danger to the public health of the United States to the point of requiring a temporary suspension of the introduction of covered aliens into the United States.3 The same order also noted the logistical challenges of preventing the transmission ofCOVID-19 at the border Widespread, compulsory federal quarantines or isolations of such persons pending test results are impracticable due to the numbers of persons involved, logistical challenges, and CDC resource and personnel constraints.3 Although the US government did not have access to vaccines or rapid tests in March 2020, they need not have adopted such an extreme policy to protect the public's health. Given the barriers to effective implementation of PPE [personal protective equipment] and administrative controls to prevent the spread of [COVID-19] in immigration detention centers, an evidence-based public health approach suggests . . . the release of detainees from immigration detention centers, as this strategy will reduce the likelihood of person-to-person infection and enhance the possibility of engaging in meaningful social distancing and hygienic practices as directed by the CDC.4(p112) That the US government invoked Title 42 for those coming through land borders but instituted only temporary travel bans for other international travelers and did not institute interstate travel bans underscores how unnecessary these extreme measures truly were, even in the early days of COVID-19.5 In addition to the challenges posed by the use of Title 42 to prevent the entry of asylum seekers during COVID-19, MPP-often referred to as the Remain in Mexico program- creates additional barriers for migrants seeking to enter the United States.