Washington (CNN) — The Trump administration is expected to issue a public health order as soon as this week labeling migrants at the US southern border as risks for spreading diseases, marking an escalation in the president’s effort to severely restrict immigration, according to three sources familiar with the discussions.
The public health order, which hasn’t yet been finalized, is a call back to one put in place in 2020 during Donald Trump’s first administration based on the coronavirus pandemic. That order sealed off the border to asylum seekers, drawing fierce criticism from immigrant advocates, and fueled repeat crossings that prompted pushback from some Homeland Security officials.
Discussions for the new order have referenced measles and tuberculosis, according to multiple sources. It would be the latest in a string of moves to toughen the administration’s posture on the US-Mexico border even as crossings continue to plummet.
CNN reached out for comment to the Department of Homeland Security, which deferred to the Department of Health and Human Services.
White House deputy chief of staff Stephen Miller, the architect of the president’s hardline immigration agenda now and in his first term, has long advocated for using Title 42 — the name of the emergency health authority — in his push to limit immigration to the United States.
Miller told the New York Times in 2023 that Trump would invoke the authority again, citing “severe strains of the flu, tuberculosis, scabies, other respiratory illnesses like R.S.V. and so on, or just a general issue of mass migration being a public health threat and conveying a variety of communicable diseases.”
The Centers for Disease Control and Prevention is responsible for determining whether there’s a communicable disease in a foreign country that poses a danger of introduction into the United States — and if so, whether a public health order is necessary to mitigate that risk. The order is implemented by the Department of Homeland Security.
CDC officials previously raised concerns about White House pressure to make such a determination during the coronavirus pandemic. While coronavirus was deemed a public health emergency at the time, the Title 42 authority doesn’t depend on that declaration, according to a senior Health and Human Services official.
Former CDC officials also argue there’s no need for such an order, casting it as an attempt to move immigration policy on the basis of health.
The US is currently grappling with a measles outbreak in West Texas: as of Tuesday afternoon, the number of cases linked to the outbreak had grown to 58, according to the Texas Department of State Health Services. But it isn’t known whether there’s a connection with the US-Mexico border, where migrant crossings have dramatically declined over the last several months.
When asked about invoking Title 42 because of measles, Dr. Michael Osterholm, director of the Center for Infectious Disease Research and Policy, or CIDRAP, at the University of Minnesota, told CNN: “Given what’s happened in Texas, I hope we protect the Mexicans from ourselves.”
The US-Mexico border is already effectively sealed off to asylum seekers through multiple border measures, including the use of a provision — Section 212(f) of the Immigration and Nationality Act — which gives the president broad authority to restrict border crossings, and the reimplementation of the so-called “remain in Mexico” policy. That policy requires that migrants stay in Mexico for the duration of their US immigration court proceedings.
“Border arrests are down because we have secured the border,” Homan told Fox News Monday. “229 encounters in a 24-hour period, that is a record.”
The use of Title 42 would add yet another hurdle for any migrant trying to seek asylum at the US southern border.
Issued during the onset of the Covid-19 pandemic, Title 42 allowed authorities to swiftly turn away migrants at the US borders, ostensibly to prevent the spread of the novel coronavirus. The order, based on a decades-old public health law, came as the United States was already grappling with the spread of Covid-19 and faced immediate backlash from immigration advocates and public health experts.
At the time, health experts from across the country argued in a letter to the Department of Health and Human Services that there’s “no public health rationale for denying admission to individuals based on legal status.”
The invocation of Title 42 would likely spur legal challenges. The American Civil Liberties Union was among those who challenged the previous use of the authority. Despite that, Title 42 remained in effect into former President Joe Biden’s administration. It expired in May 2023. Border authorities expelled migrants nearly 3 million times under the authority.
One of the criticisms of using Title 42, including among Homeland Security officials, has been that the public health authority carried almost no legal consequences for migrants crossing, meaning if they were pushed back, they could try to cross again multiple times. Under immigration law, people crossing the border illegally face harsher consequences.
CNN’s Meg Tirrell, Carma Hassan, Brenda Goodman and Angelica Franganillo Diaz contributed to this report.
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