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Under the new proposal, U.S. citizens or legal residents could be kept out of the United States simply if an official believes they've been exposed to coronavirus.
The legality and constitutionality of a draft regulation that would prohibit citizens who have been exposed to coronavirus from re-entering the country are seriously in question, according to experts.
Over the course of just months, the coronavirus pandemic has brought on an avalanche of international travel bans and advisories that have led to a global life on pause: canceled trips, postponed vacations and family reunions, and uncertainty about when and in what form we will be able to travel to numerous countries again.
The latest twist came with this week’s news that President Donald Trump is considering barring U.S. citizens and legal residents from re-entering the United States from abroad if border authorities find that they may have contracted coronavirus, according to a report from the New York Times, which obtained parts of the draft proposal.
While the United States has issued several travel bans this year that were put into place to help contain the spread of the coronavirus pandemic, including from “high-risk areas” such as China and Europe, there has always been an exception made for U.S. citizens and legal residents returning to the United States.
Under the new proposal, the federal government could prevent a citizen or legal resident from entering the U.S. if an official “reasonably believes that the individual either may have been exposed to or is infected with the communicable disease,” the New York Times reported. The draft didn’t specify the length of time individuals would be kept out of the country or an exact process for determining how infectious they are.
But before we experience more pandemic travel–related high blood pressure in response to the proposal, we had to ask: Is this even legally or constitutionally possible? Not according to some experts.
“My intuition is that it would definitely be unconstitutional or beyond the president’s authority to do this,” said Harsha Panduranga, a lawyer with the Brennan Center for Justice who specializes in liberty and national security. “Inherent in the core conception of citizenship is the absolute right to re-enter the borders of the country.”
While the New York Times reported that the draft order states that it will include constitutional rights protections, the American Civil Liberties Union (ACLU) isn’t convinced either.
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“Barring American citizens from the United States is unconstitutional,” Omar Jadwat, director of ACLU’s Immigrants’ Rights Project, said in a statement. “The Trump administration has rolled out one border ban after another—most recently on children and asylum seekers—using COVID-19 as an excuse, while failing abysmally to get the virus under control in the United States. The rumored order would be another grave error in a year that has already seen far too many.”
In order to properly analyze the potential legality of the policy, there are two factors at play: executive authority and the Constitutional rights and privileges that U.S. citizens and permanent residents are entitled to.
Panduranga observed that a couple of statutes could potentially give the Trump administration some leverage on this matter. A provision within the Immigration and Nationality Act (enacted in 1952) gives the president the authority to suspend the entry of foreigners into the country if the president deems their entry is detrimental to the country’s interests. This was the provision that was used to impose the 2017 ban on foreign nationals from seven predominantly Muslim countries. But that provision doesn’t authorize the barring of U.S. citizens, said Panduranga.
There’s another law that could embolden the move: 42 U.S. Code §265, which allows for “the suspension of entries and imports from designated places to prevent spread of communicable diseases.” This law dictates that if the Surgeon General finds that a communicable disease in a foreign country poses a serious danger of being introduced into the United States, then the government could bar people and property coming from that country—and the law does not exempt U.S. citizens.
The right of citizens to re-enter the United States in the context of communicable diseases was analyzed in a 2016 legal research paper published by the William & Mary Bill of Rights Journal, a scholarly publication that looks at constitutional law. The paper used the 2014 Ebola outbreak as a case study and found that while the U.S. Centers for Disease Control and Prevention (CDC), which oversees and enforces the country’s public health policies, declared that citizens do have the right to return to the United States, that right is not absolute due to policies such as the statute mentioned above.
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“At the very least, both the CDC’s policies and the relevant statutes make the situation much murkier than the black-and-white assertion that a citizen has the right to return to the United States,” the paper concluded.
Murky is not ideal, especially for travelers and expats who are trying to navigate what all of this means for future re-entry.
Panduranga said there’s at least one more important legal challenge the proposal would come up against if it were to move forward, “which is a seemingly random officer who either believes that the individual may have been exposed to or is infected with a communicable disease. How are they going to know that? I think that is definitely very ripe for a legal challenge. It leaves way too much discretion to the individual person.”
There’s no precedent for this kind of move, said Henry Harteveldt, a travel industry analyst and president of travel market research firm Atmosphere Research, and the motives are perplexing.
The U.S. already has far more cases of COVID-19 than other countries, Harteveldt noted, so it’s not necessarily an issue of keeping the pandemic at bay. Plus U.S. travelers still remain banned from traveling to dozens of countries. There are plenty of other ways the government can deter travelers from going to certain countries, said Harteveldt, including the U.S. State Department travel advisories.
His main concern is that the proposal will simply add to the uncertainty travelers already face and could further stall travelers’ plans.
“Just in the couple days since this has been first reported it has created a lot of confusion and increased anxiety about traveling abroad,” said Harteveldt.
Given that there is a lot of debate about whether the proposal has the legal stamina to move forward, Harteveldt advised would-be international travelers to simply keep a close watch on the situation.
“It’s important to stay informed . . . keep an eye on this. It’s a good idea to stay on top of the news,” Harteveldt said.
Keeping on top of the news is probably something travelers have gotten all too good at this year—whether they’ve wanted to or not.
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