COVID-Related Restrictions on Entry into the
United States Under Title 42: Litigation and
Legal Considerations
Updated December 29, 2022
In response to the Coronavirus Disease 2019 (COVID-19) pandemic, in March 2020 the executive branch
invoked statutory powers to impose restrictions on the entry into the United States of certain individuals
who are not citizens or nationals of the United States (i.e., “aliens” as defined in the Immigration and
Nationality Act (INA)). Invoking authority under 42 U.S.C. § 265 (“Section 265”), the Centers for
Disease Control and Prevention (CDC) directed immigration officials to expel certain individuals—that
is, aliens who either do not have visas or other “proper travel documents” or who seek to enter the United
States unlawfully between ports of entry (POE)—to Mexico or their countries of origin. The invocation of
this Section 265 authority (often referred to as “Title 42”) during the COVID-19 pandemic, along with the
executive branch’s attempt to terminate the Title 42 restrictions on entry, have been subject to ongoing
litigation. Most recently, a federal district court in November 2022 declared the current Title 42 order
unlawful and directed the policy to end. However, on December 27, 2022, the Supreme Court stayed
implementation of the district court order while the Court considers whether several states may intervene
in the litigation to defend the policy. This Legal Sidebar provides an overview of Section 265, discusses
the application of Section 265 during the COVID-19 pandemic, examines ongoing litigation, and then
explores considerations for Congress.
Overview of 42 U.S.C. § 265
The CDC’s order imposed during the COVID-19 pandemic derives statutory authority from a public
health provision in Title 42 of the U.S. Code, specifically 42 U.S.C. § 265, which provides:
Whenever the Surgeon General determines that by reason of the existence of any communicable
disease in a foreign country there is serious danger of the introduction of such disease into the United
States, and that this danger is so increased by the introduction of persons or property from such
country that a suspension of the right to introduce such persons and property is required in the
interest of the public health, the Surgeon General, in accordance with regulations approved by the
President, shall have the power to prohibit, in whole or in part, the introduction of persons and
