Title 42’s disastrous—and illegal—legacy at the southern border
The Biden administration has reversed Trump’s rhetoric around migrants but not all of his policies.
In March 2020 the scope and seriousness of the global coronavirus pandemic were just becoming evident around the globe. It was then that an obscure section of a public health policy from eight decades earlier was invoked by the Trump administration to slam the gates shut on the southern border to all migrants and asylum seekers, on the grounds that they might carry COVID-19 into the United States.
Title 42—more precisely, Section 265 of Title 42 of the US Code, enacted as part of the Public Health Service Act of 1944—permits the exclusion from the United States of any noncitizen who poses a “serious danger” of spreading a “quarantinable communicable disease.” Trump adviser Stephen Miller had tried twice before to use this forgotten regulation as a reason to close the border—first in 2018, for general health reasons, and again in 2019, citing a mumps outbreak. Both attempts failed.
Then the pretext Miller needed arrived with a bang, and his boss agreed to pressure the Centers for Disease Control and Prevention to declare a health emergency at the border. CDC leaders balked, finding no basis for such a measure when infection rates were higher in the United States than in Mexico. But politics prevailed over science. From March 20, 2020, nearly everyone seeking to enter the US from the south was turned away.
