2009 Influenza Pandemic: Border Entry Issues

The Congressional Research Service recently prepared a report on the 2009 Influenza Pandemic for Congress. The report provides a brief overview of selected legal issues including emergency measures, civil rights, liability issues, and employment issues. The report also contains interesting snippets on inadmissibility under INA, border quarantines and border closure.

Inadmissibility of Infected Aliens

Those most easily excluded from the United States are aliens already infected with the influenza A(H1N1) virus. The Immigration and Nationality Act (INA) specifically bars aliens who are determined to have “a communicable disease of public health significance,” from receiving visas and admission into the United States. “A communicable disease of public health significance” is defined by the Secretary of Health and Human Services by regulation. Although the regulatory definition does not specifically include influenza A(H1N1), it does include, by reference, communicable diseases as listed in a Presidential Executive Order issued pursuant to section 361(b) of the Public Health Service Act. The relevant order, Executive Order 13295, as amended by Executive Order 13375, specifies “[i]nfluenza caused by novel or reemergent influenza viruses that are causing, or have the potential to cause, a pandemic” as a communicable disease for purposes of section 361(b). Thus, for purposes of the INA, the influenza A(H1N1) virus is a ground for inadmissibility into the United States. Of course, this law only applies to aliens, not citizens, and prior to inadmissibility being triggered, the alien must be diagnosed with the influenza A(H1N1) virus. These considerations could therefore prevent this provision from being the most effective means to interdict individuals infected with the influenza A(H1N1) virus from entering the country.

Border Quarantines of Citizens or Aliens

There are currently no legal provisions that can exclude American citizens from the United States solely because of an infection with a communicable disease. The primary means to prevent infected citizens from introducing these diseases into the United States is to place them into quarantine or isolation at the border rather than deny them entry outright. As noted above, the Secretary has the authority to promulgate regulations to prevent the entry and spread of communicable diseases from foreign countries into the United States. The implementing regulations at 42 C.F.R. Part 71 specify that when there is reason to believe an arriving person is infected with “any communicable disease listed in an Executive Order, as provided under section 361(b) of the Public Service Act,” the person may be isolated, quarantined, or placed under surveillance or disinfected if deemed necessary to prevent the introduction of the communicable disease. “Influenza caused by novel or reemergent influenza viruses that are causing, or have the potential to cause, a pandemic” is one such disease that can warrant quarantine.

Closing the Border

The most drastic measure discussed so far is “to close the borders.” Presumably, this would entail a blanket bar on all aliens and citizens seeking entry into the United States regardless of their health. There appear to be no laws specifically authorizing an executive agency to take such action. However, Congress could presumably enact a law to do so, at least with regard to aliens, because the Supreme Court has long recognized “the power to expel or exclude aliens as a fundamental sovereign attribute that is largely immune from judicial control. However, United States citizens cannot be barred from entering the United States. Thus, if Congress were to theoretically “close the borders,” it could do so only by excluding aliens. In the absence of an act of Congress, it may be possible for the President to “close the borders” to aliens by Executive Order. However, this course of action appears to be fraught with legal and practical challenges, which would likely result in extensive litigation. Because Congress has not given the President authority to conduct blanket closings of borders, it would appear that the President could do so only if the exclusion power is one where he has concurrent authority with Congress. Although this exclusion power is characterized as a power “exercised by the Government’s political departments largely immune from judicial control,” the President appears to have rarely exercised any authority within this realm outside of the authority expressly delegated by an act of Congress. Considering the rather extensive inadmissibility regime codified within the Immigration and Nationality Act, it would appear unlikely that the President can exercise this power without express congressional authorization.

Read the whole thing here.

Fm the Good News Dept: Mobile Computing for State

Mobile ComputingImage by angermann via Flickr

Last week, I wrote about the Hard Skills Training Center, one of the State Department’s $600 million projects with funds from the American Recovery and Reinvestment Act of 2009. There are projects funded under ARRA at FSI and also at passport offices. Part of the Capital Investment Fund for FY 2009 (Stimulus Funds) are the following projects for $33,500,000 under the IT Platform:

Project One: Diplomatic Facility Telephone Systems Replacement – $10,000,000

Project Two: Replacement of Aging Desktop Computers (Global Information Technology Modernization (GITM) – $13,000,000

Project Three: Mobile Computing – $10,500,000

I’m quite sure the replacement of telephone systems and desktop computers would be welcomed everywhere, but the third project on mobile computing and remote access will probably be the most exciting news since Colin Powell got every desk wired for Internet access in the early part of this decade.

Below is a quick summary of the project from the Department’s ARRA plan:

This project will provide technological improvements to the Department of State Mobile Computing platform, increase the number of employees that have mobile access, and ensure continuity of operations for services such as Passport, Visa, and American Citizen Services. This project contains two parallel initiatives designed to expand remote access beyond the current 16,000 employees.

The first initiative will provide all new direct hire employees (approximately 5,000) remote access capabilities in FY2009 using the current systems. The second initiative will overhaul the existing Mobile Computing platform to provide full access to the Department of State’s unclassified resources and applications.

Mobile access is a key business requirement; however, the current infrastructure and devices are limited and do not provide the full functionality that the user requires to fulfill their mission anytime/anywhere. This initiative also increases the ability of employees worldwide to telework, both in support of “green” initiatives as well as responding to a crisis that might limit movement either domestically or overseas.


1) Provide all new direct hire employees with remote access capabilities.

2) Provide diplomats and staff with the full suite of unclassified computer applications and resources when accessing the network from a computer that is outside the Department of State’s network (e.g. home or government provided computer).

3) Increase the number mobile devices supported.

4) Increase the infrastructure to support twice the current mobile workforce.

5) Reduce the carbon footprint of Department of State by enabling more users to telework.

6) Migrate existing Mobile Computing users to the new system.


1) It is estimated that an additional $600,000 is required for FY11 and beyond due to the increased customer base for mobile computing and additional operational staff will be required.

2) These costs will be funded via the Working Capital Fund (WCF) so the out-year costs will be provided by Mobile Computing subscribers, as is the current practice.


The primary measures of project success are:

1) Increasing the number of users that have remote access to unclassified resources

2) Increasing the number of applications available to mobile computing users

Related Item:
American Recovery and Reinvestment Act of 2009: External Program Plan