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Senator Patrick Leahy, Apr. 7, 2020
"Senator Patrick Leahy (D-Vt.) led all Democrats on the Senate Judiciary Committee – the Senate committee with jurisdiction over immigration laws, humanitarian protection laws, and constitutional oversight – in demanding answers about the Department of Homeland Security exploiting the COVID-19 pandemic by claiming new, sweeping powers to summarily expel large, unknown numbers of individuals arriving at our border in clear contravention of existing federal laws. The Judiciary Committee Democrats reiterated that in our democracy, no crisis – however great – gives the Executive Branch unilateral authority to ignore or defy duly enacted laws.
The senators wrote: “We write to request information about the Department of Homeland Security’s (DHS) recent actions implementing the Centers for Disease Control and Prevention’s (CDC) March 20, 2020 “Order Suspending Introduction Of Certain Persons From Countries Where A Communicable Disease Exists.” This order was issued pursuant to 42 U.S.C. § 265, which grants limited authorities to temporarily suspend the entry of certain categories of persons into the United States “when doing so is required in the interest of the public health.” While protecting our borders is critical during this COVID-19 pandemic, we are deeply concerned that DHS is blatantly misinterpreting its limited authorities under the CDC’s Title 42 order to override existing federal statutes — a move with no known precedent or clear legal rationale. Making matters worse, this unprecedented expansion of executive power appears to be entirely hidden from public and Congressional oversight.”
The senators continued: “While we agree this COVID-19 crisis requires an extraordinary governmental response, we strongly disagree with any attempt to abuse existing authorities to serve political ends or ignore laws by executive fiat. A public health crisis does not give the Executive Branch a free pass to violate constitutional rights, nor does it give the Executive Branch permission to operate outside of the law. Responding to crises while upholding our legal obligations is the very hallmark of the rule of law.”
Full text of the letter is below:
April 7, 2020
Dear Acting Secretary Wolf,
We write to request information about the Department of Homeland Security’s (DHS) recent actions implementing the Centers for Disease Control and Prevention’s (CDC) March 20, 2020 “Order Suspending Introduction Of Certain Persons From Countries Where A Communicable Disease Exists.”[1] This order was issued pursuant to 42 U.S.C. § 265, which grants limited authorities to temporarily suspend the entry of certain categories of persons into the United States “when doing so is required in the interest of the public health.” While protecting our borders is critical during this COVID-19 pandemic, we are deeply concerned that DHS is blatantly misinterpreting its limited authorities under the CDC’s Title 42 order to override existing federal statutes[2]—a move with no known precedent or clear legal rationale. Making matters worse, this unprecedented expansion of executive power appears to be entirely hidden from public and Congressional oversight.
As we understand from press accounts,[3] DHS has gone far beyond the parameters of CDC’s limited order and granted itself sweeping powers to summarily expel large, unknown numbers of individuals arriving at our border. Contrary to existing law, individuals, families, and children are now unable to sufficiently make claims for asylum, seek other forms of humanitarian protection, and, in some instances, are being expelled to countries in which they fear persecution. Therefore, DHS has essentially determined that executive branch officials can all but ignore the requirements of long-standing federal laws pursuant to an executive branch interpretation of a statute enacted in 1944. This amounts to a startling expansion of executive power under the guise of a global pandemic response.
While we agree this COVID-19 crisis requires an extraordinary governmental response, we strongly disagree with any attempt to abuse existing authorities to serve political ends or ignore laws by executive fiat. A public health crisis does not give the Executive Branch a free pass to violate constitutional rights, nor does it give the Executive Branch permission to operate outside of the law. Responding to crises while upholding our legal obligations is the very hallmark of the rule of law.
Furthermore, it appears these decisions to expel individuals are being made on an ad hoc, arbitrary basis without adherence to any articulated limiting principles. In effect, the administration has given itself unchecked, roving authority to subject individuals to immediate “expulsion” from our country regardless of other federal protections, or rights, to which they otherwise would be entitled. Moreover, the administration has failed to provide any meaningful notice to the public about these vast powers or an opportunity for the public to provide comments about them, as federal law requires. The notices provided in the Federal Register to date are woefully inadequate, and do not sufficiently describe DHS’ current activities at the border.
Lastly, we are not aware of a single statute, or legal precedent, that authorizes the Executive Branch to defy the law and evade all Congressional oversight. Indeed, our democracy fundamentally requires Congress to ensure that the Executive Branch is complying with our laws, especially in times of crisis when the rights and liberties that define our nation are most vulnerable.
To better understand DHS’ recent actions purportedly pursuant to CDC’s Title 42 order and to fulfill our constitutional oversight obligations, we request answers to the following questions by April 15, 2020:
We appreciate your prompt attention to this urgent matter.
[1] Order Suspending Introduction of Certain Persons From Countries Where A Communicable Disease Exists, Centers for Disease Control and Prevention (Mar. 20, 2020), available at https://www.cdc.gov/quarantine/pdf/CDC-Order-Prohibiting-Introduction-of-Persons_Final_3-20-20_3-p.pdf.
[2] Arelis R. Hernández & Nick Miroff, Facing Coronavirus Pandemic, Trump Suspends Immigration Laws and Showcases Vision for Locked-Down Border, The Washington Post, (Apr. 3, 2020), https://www.washingtonpost.com/national/coronavirus-trump-immigration-border/2020/04/03/23cb025a-74f9-11ea-ae50-7148009252e3_story.html (“Citing the emergency declaration from the Centers for Disease Control and Prevention, Homeland Security officials have bypassed court-ordered due process protections for minors, asylum seekers and others as they return border-crossers to Mexico as quickly as possible. The migrants taken into custody now are tallied as “encounters” rather than “apprehensions,” and they are “expelled” from the country rather than formally deported.”).
[3] Dara Lind, Leaked Border Patrol Memo Tells Agents to Send Migrants Back Immediately – Ignoring Asylum Law, ProPublica, (Apr. 2, 2020), https://www.propublica.org/article/leaked-border-patrol-memo-tells-agents-to-send-migrants-back-immediately-ignoring-asylum-law."