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.