Could the Trump Administration Use CDC Powers to Enforce Hardline Immigration Policies?

The Trump administration has plans to use emergency public health powers to close the southern border and remove thousands of immigrants from the country. The only problem? There is no public health emergency.

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In recent months, Trump officials have privately expressed an interest in reinstating the controversial immigration policy referred to as Title 42. This policy was originally instituted by the Centers for Disease Control (CDC) in March 2020 with the stated goal of preventing COVID-infected persons from entering the United States. It directed federal officials to block the entry of nearly all migrants into the country and deny them an opportunity to apply for asylum. Despite legal challenges, Title 42 remained in place for roughly two years, resulting in the expulsion of millions of immigrants from the country—including through physical removal.

It is widely understood that a reinstatement of Title 42 would require, first, the declaration of a public health emergency. For this reason, the new administration seems to be searching for a communicable disease to use as a basis for such a declaration. Advisers to President Trump previously considered common diseases like “severe strains of the flu, tuberculosis, scabies, [or] other respiratory illnesses like R.S.V.” Their more recent search has reportedly led them to ask allies inside Border Patrol about the types of diseases detected among immigrants. These plans preview a new legal battle— one that will force a conservative Supreme Court to choose between permitting border restrictions and shrinking the powers of public health agencies.

Immigration and Public Health: Origins

Searching for a suitable disease in order to justify Title 42 orders is problematic—both morally and legally, and likely grounded in the pernicious trope that foreign immigrants are diseased. White House deputy chief of staff Stephen Miller has stated as much, describing migration itself as a public health threat to the United States.

This sentiment can be traced back to the late 19th century, when an early version of the U.S. Public Health Service began screening immigrants arriving at Ellis Island for the dual purpose of protecting public health and weeding out socially undesirable immigrants. Any “persons suffering from a loathsome or dangerous contagious disease,” as well as members of certain ethnic and racial groups were turned away and sent back to their port of origin.

As public health agencies expanded over the next century, so too did their role in immigration and national security. The Public Health Service Act (PHSA) of 1944 codified federal quarantine powers and granted oversight of such programs to what would later become the CDC. In conjunction with the Immigration and Nationality Act (INA) of 1952, the CDC was charged with promulgating regulations to prevent the spread of communicable disease into and within the United States.

The AIDS epidemic, anthrax attacks, and SARS outbreak later contributed to a shift in approach by public health agencies. Fear of bioterrorism and infectious disease meant the term “health security” emerged to describe the melding of public health and national security aims. One scholar recently noted that “health security [mimics] national security in the reasoning that individuals [are required to] relinquish certain rights due to policies to remove security risks.”

The COVID-19 Pandemic

Throughout the COVID-19 pandemic, the CDC leaned on the obscure powers granted to the executive in the PHSA to pass its bold policies. The language in Title 42’s two central clauses—§ 361 and § 362—is open to interpretation. Courts have debated the meaning of these sections and how much deference is owed to public health agencies. The Trump administration may be considering how these clauses present distinct avenues that may help push its anti-immigration agenda.

Section 361 of the PHSA authorizes the CDC to provide for “inspection, fumigation, disinfection, sanitation, … and other measures” in order to prevent the “introduction, transmission, or spread of communicable diseases from foreign countries into the [United] States.” The CDC pointed to this language in 2021 to extend a nationwide moratorium on evictions. The measure, however, was challenged in a slew of lawsuits and eventually struck down by the Supreme Court. In the decision, Chief Justice John Roberts invoked a legal theory known as the Major Questions Doctrine, stating that the “other measures” language did not grant the CDC the power to pass a measure of “vast economic and political significance.” It was a striking blow to public health powers and likely narrowed the window for the CDC to apply § 361 for broad policy goals in the future.

Section 362 of the PHSA was used by the executive branch to close the U.S. border during the COVID-19 emergency. It grants the CDC director the authority to “prohibit, in whole or in part, the introduction of persons and property” into the country “by reason of the existence of any communicable disease in a foreign country.” Despite the fact that COVID-19 was already spreading within U.S. borders, the declaration of a public health emergency paved the way for strict border enforcement measures. Federal District Court judges across the country disagreed on the policy’s legality. A federal judge in D.C. struck down the policy, while another in Louisiana attempted to prohibit the Biden Administration from repealing the measure. In early 2022, it seemed likely the Supreme Court would weigh in on the issue, but after the Biden Administration announced its intent to end the COVID-19 public health emergency, the suit was removed from its docket. In due course, the Title 42 policy expired along with the emergency declaration on May 11, 2022.

What We Know

To reinstate the Title 42 policy, the Trump Administration would first need to identify a widespread communicable disease and declare a public health emergency. Then, they could attempt to exert powers granted to public health agencies under sections 361 or 362 of the PHSA.

It is likely any attempt at reinstating Title 42-style restrictions would face many legal challenges and it is unclear how the conservative majority Supreme Court would rule. Hardline immigration policies remain a focus of the Trump administration, but attempts to enact sweeping border restrictions through public health quarantine powers may be an uphill battle.

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About the author

Spencer Andrews (J.D. 2026) is a student fellow with Petrie-Flom Center. He hails from small-town Indiana and worked for three years as a research fellow at the National Institutes of Health (NIH) before attending law school. His background in neuroscience inspired him to dig deeper into the societal impacts of addiction and mental illness in the U.S.