Public Health and the Power to Exclude: Immigrant Expulsions at the Border

Abstract

We are presently in the midst of a crisis at the U.S.-Mexico border, as Courts, and indeed the Biden Administration, are struggling to manage thousands of immigrants waiting to seek asylum in the midst of a global pandemic. Beginning in March of 2020, against the advice of public health experts, the U.S. Government closed the southern U.S.-Mexico border, disproportionately impacting would-be asylum seekers from Central America, who are now immediately expelled from the United States should they reach the border under a process known as “Title 42.” Not only do these expulsions lack a legitimate public health rationale, but they also violate our domestic and international legal obligations to protect immigrants at risk of persecution or torture.
This piece begins by exploring the historic intersections of public health and immigration law, and the origins of federal quarantine and exclusion power. Woven into the article are first hand accounts of advocates on both sides of the border who have witnessed the devastating impact of COVID-19 era immigrant expulsions. Ultimately, this article argues that we must seek alternatives - including ending Title 42 expulsions, deferring to public health experts, dispatching additional resources to the border and ending our reliance on immigration detention.