The Legal Basis for International Travel Bans in the COVID-19 Pandemic
By Justin Tobey
With over a million and a half cases of COVID-19, the disease caused by the novel coronavirus, the United States is home to by far the largest outbreak in the pandemic. In response to criticism of the U.S. government’s handling of the crisis, President Trump has pointed to his imposition of travel bans. At the time of writing, five such bans had been imposed: On January 31st, President Trump banned travel into the United States from China, with exceptions for U.S. citizens and personnel. On February 29th, the President extended this travel ban to travelers from Iran. On March 11th, travelers from the Schengen Area of Europe were likewise banned, and on March 14th, the ban was extended to the United Kingdom and the Republic of Ireland. Now, approximately two months later, the ban has been extended to Brazil, which has become the second largest hotspot for COVID-19. All five proclamations cite to an important provision granting the President wide latitude over immigration and national borders, 8 U.S.C. § 1182(f).
8 U.S.C. § 1182 is the section of the United States Code dealing with the treatment of “inadmissible aliens,” as part of the 1952 Immigration and Nationality Act. Within this Section, Subsection (f) establishes that the President may “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” This provision also empowers the President to authorize the Attorney General to bring legal action, or to impose stricter standards, on airlines deemed not to be appropriately vetting the class suspended from entry.
How Long Will Travel Be Restricted?
As of yet, it is not possible to know. While some states and jurisdictions are reopening their local economies, public health experts are warning that strict measures could be necessary for months, as a vaccine will not be available for some eighteen months or longer. The statutory law being invoked by the President contains no sunset clauses or requirements of reauthorization by Congress. Section 1182(f) merely says that the travel restrictions continue “for such period as [the President] shall deem necessary.”
Is There Any Oversight of Executive Travel Bans?
Yes. As discussed above, the Immigration and Nationality Act gives the President wide latitude to enforce restrictions on certain classes of international travelers, whether immigrants or nonimmigrants. However, Section 1182(f) does not give the President an unreviewable power over international travel. In 2017, in his first weeks in office, President Trump issued Executive Order 13769, known popularly as a “Muslim ban” by its critics and a “travel ban” by its supporters. This order, like the COVID-19 travel bans, relied on the Immigration and Nationality Act, and was quickly challenged in court by the states of Washington and Minnesota. Those challenging the ban argued that it was unlawfully discriminatory, while the ban’s defenders argued that Obama-era legislation empowered the President to discriminate based on nationality under the guise of anti-terrorist national security concerns. While the case was ultimately dismissed for mootness upon the signing of subsequent iterations of the travel ban, the Ninth Circuit did issue a preliminary holding that national security did not afford the executive carte blanche to control immigration and travel without oversight.
Travel Bans Going Forward
In all likelihood, the United States and countries around the world will continue to enforce travel bans for months. As the number of fatalities here and globally continues to rise, national security concerns will compel countries to continue the global slowdown on international travel. Additionally, we should expect to see new travel restrictions rolled out over the coming weeks. The current bans, encompassing China, Iran, Europe, and Brazil, serve to identify the non-U.S. hotspots of COVID-19 in the world for now. But experts warn that we could see an explosion of new outbursts as the disease penetrates developing countries with poor healthcare systems. With airlines announcing extensive flight cancellations, and the ensuing economic turmoil, even as the bans are eventually lifted, it is likely that international travel will be disrupted by this event for years.