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Law360 (September 8, 2020, 10:02 PM EDT ) A final rule that empowers the Centers for Disease Control and Prevention to restrict immigration in response to the COVID-19 pandemic was left largely intact since it was first announced in March, despite hundreds of public comments challenging its legality.
The U.S. Department of Health and Human Services said in the regulation released late Friday that those claiming the rule violates the level of care the government is required to provide unaccompanied minors in its custody and other challengers had "confused" the final rule, the interim rule and the subsequent CDC order that banned any covered aliens from entering the U.S. from Canada or Mexico.
The HHS rule provides a vehicle for the CDC order and similar future orders, granting the CDC director the ability to temporarily bar entry based on the presence of any of the illnesses outlined on the White House's Revised List of Quarantinable Communicable Diseases in an area, the final rule said.
"Specifically, this final rule permits the Director to prohibit, in whole or in part, the introduction into the United States of persons from designated foreign countries … or places, only for such period of time that the Director deems necessary to avert the serious danger of the introduction of a quarantinable communicable disease," the final HHS rule says.
The final rule clarifies that only diseases from the quarantinable list could provoke a border restriction, while the interim rule did not specify beyond "communicable diseases."
Diseases on the list include causes of recent international public health crises such as Ebola and SARS as well as more treatable illnesses including tuberculosis and diphtheria.
The final rule also requires the CDC director to provide a brief overview of the danger presented by admitting people from the restricted area to the U.S. with each new order.
HHS also said that the intention behind the new phrasing, "prohibit … the introduction into the U.S. of persons," extended beyond barring entry to include asking the U.S. Department of Homeland Security to remove individuals already present.
"The Director may, for example, suspend all rights to introduce all persons from the foreign country, request that DHS physically expel the cohort of persons from the foreign country who are already on U.S. soil, and further request that DHS stop the movement into the United States of any other persons from the foreign country who are not on U.S. soil," HHS said.
HHS had faced backlash — including more than 200 public comments and a pending class action — after it drew from a little-known 1944 statute in March to allow the CDC director to issue orders banning entry from specific locations where contagious diseases are present.
By granting the CDC director the authority to expel individuals, commenters said the rule violated a slew of laws, agreements and precedents, such as the 1967 Refugee Protocol and the Convention Against Torture, the Trafficking Victims Protection Reauthorization Act of 2008, the Foreign Affairs Reform and Restructuring Act of 1998 and federal asylum and withholding of removal provisions, including violating asylum seekers' rights to due process.
But HHS said it disagreed with those comments.
"These comments are directed to the CDC Order on covered aliens … and not this final rule. To the extent these comments are directed to both the CDC Order and this final rule, HHS/CDC respectfully disagrees with them," it said.
Legal challenges to the HHS rule and the CDC order have so far focused on their impact on unaccompanied minors, whom the American Civil Liberties Union alleged are now subject to "summary expulsion … without any procedural protection" in a class action complaint last month.
Lee Gelernt, an ACLU attorney representing the proposed class leader in the suit, which challenges the rule and the CDC order on similar grounds to some of the comments, told Law360 that the adjustments in the final rule do not weaken their case.
"The final rule does not eliminate the illegality of expelling children or asylum seekers without hearings, and is no more justified as a public health measure than the interim rule," he said in a Tuesday statement.
Sarah Pierce, a policy analyst at the Migration Policy Institute, told Law360 that she was "surprised" that more lawsuits haven't arisen since the interim rule and the CDC's order came about in March.
"I think it shows how much deference we give our leaders in times of crisis. But as time goes on, and as there is more evidence — if any — that the virus is under control, there will be more for advocates to use for legal challenges," she said in a statement.
The final rule is scheduled to be published in the Federal Register on Sept. 11.
Representatives for HHS and the CDC did not immediately respond to requests for comment Tuesday.
--Additional reporting by Suzanne Monyak. Editing by Steven Edelstone.
For a reprint of this article, please contact reprints@law360.com.
