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By Gwendolyn Kull
While President Biden’s administration has been abysmally silent on when, if ever, the COVID-19 vaccination requirement for non-citizen non-immigrants will end, there is still hope.
A distinction in the legislative authority used for the land ports of entry could soon result in those reopening for business — restriction-free. Although it seems nonsensical for the land borders to open without lifting the air travel requirement, nothing about the rule makes sense.
When Biden issued Proclamation 10294 requiring travelers to be vaccinated against COVID-19, federal agencies took charge and began issuing their own administrative, bureaucratic orders to enforce the president’s will.
Most of us are familiar with the Centers for Disease Control and Prevention’s (CDC) amended order implementing the “Proclamation on Advancing the Safe Resumption of Global Travel During the COVID-19 Pandemic.” That order requires foreigners traveling by airplane to the U.S. to be vaccinated.
The requirement is outdated, raising questions as to why, how and for how much longer it is being enforced.
The U.S. is one of 12 nations worldwide still requiring proof of COVID-19 vaccination for travel. The others include nations like Indonesia, Pakistan, Myanmar and Liberia. No other Western, democratic nation or major world economy maintains such strict entry requirements.
Although the argument favoring the restriction is to “prevent the introduction or transmission of COVID-19” into the U.S., three years past the initial lockdowns, it’s clear the virus is already everywhere.
Assuming for argument’s sake that the COVID-19 vaccines do prevent disease, the policy still fails at reaching its goal considering unvaccinated Americans can enter and exit the U.S. without such a restriction, thereby introducing and transmitting the disease in spite of the restriction against foreigners.
In reality, the CDC has published that the vaccine does not prevent disease. If vaccination status is irrelevant to disease prevention, the policy is not rationally related to the goal of preventing disease at all.
What makes this policy even more baffling is that there is no testing requirement. The result is that a traveler who tests positive for COVID-19 is able to board an airplane and transmit the disease to all the other passengers and into the U.S. so long as the traveler is vaccinated. Yet, an unvaccinated foreigner is prohibited from boarding a flight even when not infected and testing negative.
Airline companies are tasked with imposing the CDC restriction under the Transportation Safety Administration (TSA) security directive.
On April 4, TSA extended its directive until May 11. Unfortunately, that is not a hint at the end date of the requirement.
An official from TSA advised that the agency “will extend its security directive in support of the CDC’s [amended order],” confirming that the proof of vaccination for non-citizen air travelers will continue to be enforced while the CDC and White House maintain the proclamation.
How is this restriction supposed to work?
At boarding, airline staff must check your proof of vaccination and collect a copy of a written attestation form affirming vaccination before allowing a non-citizen onto a flight. These documents are then submitted to and kept on record by the CDC. Airlines must comply with the TSA Security Directive to maintain flight privileges to the U.S.
However recently, enforcement by these private companies has been dying off as the rest of the world has moved on from COVID-19. As the restriction lingers almost in defiance, some airlines have stopped checking for proof and merely collect the attestation form instead. Anyone caught willfully lying on the form could face criminal penalties or be denied future entry to the U.S.
Although the CDC’s order governs travelers by air, it is the U.S. Department of Homeland Security (DHS) and Customs and Border Protection who compel travelers to produce their proof at land borders and ferry ports.
Following the announcement of the proclamation, Secretary of DHS Alejandro Mayorkas announced DHS would issue its own order for land and ferry ports, mirroring the CDC Amended Order. The statutory authority for the DHS requirement is slightly different from the CDC’s Order, leading to confusion about its end date.
The proclamation invokes Title 8. In essence, Title 8 declares that the president can impose whatever restrictions he believes necessary, including banning entire classes of non-citizens from entering the U.S., whenever and for however long he believes necessary.
It really is this broad and has no limiting principle — no language in the statute setting parameters around how or when the president can make a unilateral decision to prohibit non-citizens from entering the U.S. like he is doing here in preventing about 30% of the world’s population from entering because of their vaccination status.
Even within the proclamation, the only termination clause is that President Biden will end or modify it upon the advice of the U.S. Secretary of Health, which is supposed to be given monthly. Unlike the proclamation, the DHS Order invokes Title 19 to be able to prohibit entry of the unvaccinated.
In contrast to Title 8, Title 19 only allows the modified procedures at ports of entry “during an emergency.” Therefore, Title 19 cannot lawfully be used beyond the end of the national emergency.
Will DHS attempt to continue the enforcement of the proclamation at land borders when its statutory authority does not allow it beyond an emergency?
To help illustrate the hypocrisy in trying to continue the travel restriction at land borders past the end of the emergency, let’s examine another statute that is currently used by Customs and Border Protection at U.S. borders.
Title 42 allows the Surgeon General to expel migrants at the border “in the interests of public health” if there is a risk the migrants would introduce a communicable disease to the country. He may do so for as long as he deems necessary. Although there must be a “serious danger” to invoke this statute, there is no time-limiting language in the law.
CDC Director Rochelle Walensky attempted to end expulsions at the border under Title 42 in May 2022, citing COVID-19 was no longer such a danger to the U.S. that migrants needed to be precluded from entering. An official from the White House commented that Title 42 expulsions will now expire on May 11, the anticipated end date of the public health emergency.
It is disingenuous of this administration to advocate lifting Title 42 restrictions for migrants, but not lifting vaccination requirements for tourists and visa holders. Since April 2022, this administration has protested continuing to expel migrants at the border because COVID-19 is not so dangerous anymore.
If it is not so dangerous to keep migrants out, then why ban healthy, COVID-19-negative unvaccinated travelers? Why is the White House so eager to announce an end to Title 42, but deafeningly silent when asked to announce an end to Title 8 and Title 19? Who really benefits from keeping this irrational policy?
During a press conference on April 4, White House Press Secretary Karine Jean-Pierre says she does not have anything “to preview or announce at this time” regarding the ban on unvaccinated foreigners, suggesting that “long COVID” continues to impact the administration’s decisions on the policy.
It is unclear if Jean-Pierre knows “fully vaccinated” under these orders only requires the first two doses from 2021 that target an obsolete strain of the virus.
Perhaps unsurprisingly, enforcement of the proclamation and DHS Order at our borders is arbitrary. Customs and Border Protection agents are not always asking for proof of vaccination at all land and ferry ports.
Some Canadians have had luck recently driving through some ports on the northern border without any COVID-related questions at all, let alone demands for proof of vaccination. At other ports, unvaccinated travelers are religiously turned away.
The DHS and CDC orders also do not include Atlantic ferry ports of entry since they are not along the Canadian or Mexican borders.
Comically, Florida Gov. Ron DeSantis offered to take advantage of this legal loophole so that Serbian tennis star, Novak Djokovic, could enter Florida to play in the Miami Open in March, highlighting the silliness of continuing this policy.
Many unvaccinated foreign travelers have also learned of the “Bahamas loophole” and have used the route to successfully enter the U.S., though it is too expensive or time-consuming for most.
The vaccine requirement for foreign travelers may be one of the most ineffective and capricious “public health” policies ever created. It still exists to the detriment of binational families kept apart by its draconian prohibitions and at the cost of billions of dollars in revenue to the U.S. economy while not having any effect on preventing disease.
It is certain that the CDC will not be removing their air passenger order without the proclamation being rescinded since an agency official commented that updates for their Amended Order should be sought from the White House.
Since the White House has yet to announce an end to the proclamation, international travelers are left wondering which end date will control entry by land: the “during an emergency” provision of Title 19 or the infinite duration of Title 8?
DHS did not respond to a request for comment to answer this question. The irony will continue to abound with these convoluted policies if the land border restriction is lifted while the air requirement remains.
Yet, Canadians should rejoice! If the U.S. removes restrictions at land ports but not airports, our northern brethren should expect to see increased tourism revenue from all of the inbound European and South American flights full of unvaccinated travelers who then rent cars or buy train and bus tickets to legally cross the U.S. border.
Originally published by Brownstone Institute.
Gwendolyn Kull is an attorney who co-authored the prosecutorial ethics guide for the Pennsylvania District Attorney’s Association and developed a youth anti-gun violence engagement program within her jurisdiction of practice.