The president and the lead agency at the cabinet level, the Department of Health and Human Services, and the governors both have public health emergency powers that conflict with and restrict the right to travel. If a person falls within the prohibition and is not eligible for an exemption, a consular officer may, on a case-by-case basis and at his or her discretion, grant an exemption to affected immigrants for specific reasons. The person applying for entry must prove that: (1) the refusal of entry would cause undue hardship to the foreign national; (2) entry would not pose a threat to U.S. national security or public safety; and (3) entry would be in the national interest. According to the Ministry of Foreign Affairs, “at 15 years old. In January 2019, 2,584 applicants were released for waivers after a consular officer determined that applicants met all criteria and had completed all required procedures. Many of these applicants have already received their visas. In contrast, critics have challenged the waiver both in the courts and in the court of public opinion. The plaintiffs also allege that the implementing rules themselves “discriminate against petitioners on the basis of their country of origin and religion and without sufficient justification and thus violate the equality component of the Fifth Amendment`s due process clause. In addition, the PO was primarily motivated by hostility toward Muslims and has different effects on Muslims, which also violates the equality protection component of the Fifth Amendment`s Due Process Clause. 50 “Considerations for implementing a risk-based approach to international travel in the context of COVID-19” (World Health Organization, 16 December 2020) . 37 Chinazzi, M et al. , “The effect of travel restrictions on the spread of the 2019 novel coronavirus (COVID-19) outbreak” (2020) 368 Science 395CrossRefGoogle ScholarPubMed.
The order prohibited the detention of those “who would be lawfully permitted to enter the United States without the executive order.” In addition, the judges ordered U.S. Customs and Border Protection to inform airlines whose flights arrive at Logan Airport of the court order and “that persons on board these flights are not apprehended or returned solely on the basis of the order.” [113] Another way to challenge the Constitution is the First Amendment Clause. [36] [38] This clause prevents the government from acting to “discriminate against a particular religion.” [35] [38] David D. Cole, a professor at Georgetown University Law Center and the ACLU`s national legal director, explained: “The executive order, of course, does not explicitly say that it favors Christians and disadvantages Muslims. But Trump is the signatory, and he said so explicitly. [38] [47] According to Steven Mulroy, professor of constitutional law at the University of Memphis Cecil C. However, the authors also concluded that the quality of the evidence remains low and that the effectiveness of travel restrictions depends on a number of factors, including “levels of community transmission, volume and duration of travel, other public health interventions, and the exact specification and timing of intervention.” Footnote 42 On January 28, 2017, the American Civil Liberties Union filed a motion asking the U.S. District Court to uphold the case as a class action and asking the court to certify class status for all those affected by President Trump`s executive order. The application stated: “.
The applicants and the proposed group, through their counsel, respectfully seek an injunction from this court confirming a representative class of applicants under Article Preiser, 506 F.2d 1115 (2d Cir. 1974). The petitioners are asking the court to certify a category composed of all persons with asylum claims approved by the United States. Citizenship and immigration authorities under the U.S. Refugee Admissions Program, holders of valid immigrant and nonimmigrant visas, and other persons from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen who are legally permitted to enter the United States but have been or will be denied entry to the United States based on Executive Order 2017 of January 27. [100] [101] However, while travel restrictions can be scientifically proven in a given public health crisis, their application is only justified under section 43(1) in a manner that contributes to the achievement of an “adequate level of health protection”. Now, as several COVID-related studies have shown, travel restrictions only made sense when combined with complementary “non-pharmaceutical interventions” in footnote 66, including contact tracing, physical distancing and diagnosis, footnote 67, and government support to allow citizens to follow public health guidelines. It also depends on how travel restrictions are implemented. Sudden announcements of border closures, for example, can trigger a rapid influx of travelers who accidentally become super-spreader events and achieve the exact opposite of public health protection. Footnote 68 Such closures may also disproportionately affect low-employment migrant workers who are not employed or assisted.
Footnote 69 While the IHR largely leave it to each state to determine what constitutes an adequate level of health protection, it is clear that a measure that fails to protect health or aggravates the public health crisis would violate subsection 43(1). The UN High Commissioner for Human Rights, Zeid Ra`ad al Hussein, argued that the executive regulation violates international human rights law. [156] Some legal scholars consider that the implementing regulations violate the United States` obligations as a party to the 1951 Convention relating to the Status of Refugees (Geneva Convention) and the United Nations Convention against Torture. The latter treaty imposes an absolute obligation on States parties “not to return a person to a State where he or she would be in danger of being subjected to torture or other serious harm”. [157] In a telephone conversation with Trump, Chancellor Angela Merkel expressed the German government`s view that Trump`s executive order ran counter to the obligations of all signatories to the Geneva Convention on Refugees to “take in war refugees on humanitarian grounds.” [36] What about Governor DeSantis` determination to keep New Yorkers out of Florida? He declared two emergencies: one that uses his powers under the Florida Constitution, and the other as a declaration of the Stafford Act that increases eligibility for federal financial assistance. Historically, a governor`s powers to order a quarantine are quite extensive, and while they may raise objections, the visiting New Yorker may have little recourse. Yet the vagueness of DeSantis` arrangement is an indication of its poor design and could in itself pose a challenge. The order includes people who are not at risk of exposure: say people from rural upstate New York and excludes people who may be at high risk: people who, for example, have traveled from New Rochelle, New York, a viral epicenter, via a Philadelphia airport. What about foreign visitors traveling to New York? What about the return of the Floridians? They were exposed to the same virus during their trip to New York.