CDC's COVID-19 Order on International Travel
The CDC issued a new order restricting travel to the United States from a foreign country. Under the new rule, air passengers entering the U.S. must pass a COVID-19 test prior to flying or be cleared by a medical professional after recovering from the virus. The order also provides that additional instructions and guidance for airlines may be forthcoming. The rule takes effect on January 26, 2021.
The Legal Justification
What legal grounds does the Centers for Disease Control and Prevention use to justify regulating air travel? Under 42 CFR § 71.20 (Public Health Prevention Measures to Detect Communicable Disease), the CDC director is authorized to take "prevention measures" to detect communicable diseases and to require individuals to provide certain biographical and health information. The relevant legal provisions below:
(a) The Director may conduct public health prevention measures, at U.S. ports of entry or other locations, through non-invasive procedures as defined in section 71.1 to detect the potential presence of communicable diseases.
(b) As part of the public health prevention measures, the Director may require individuals to provide contact information such as U.S. and foreign addresses, telephone numbers, email addresses, and other contact information, as well as information concerning their intended destination, health status, known or possible exposure history, and travel history.
Under 42 CFR § 71.31 (b), the CDC director has the authority to detain and supervise airlines to enforce disease preventing measures. The relevent law is as follows:
The Director may require detention of a carrier until the completion of the measures outlined in this part that are necessary to prevent the introduction or spread of a communicable disease. The Director may issue a controlled free pratique to the carrier stipulating what measures are to be met, but such issuance does not prevent the periodic boarding of a carrier and the inspection of persons and records to verify that the conditions have been met for granting the pratique.
Requirements for Travelers Entering the United States
Under the CDC order, all air passengers from international destinations are banned from entry into the United States unless they can show one of two things:
1) a negative COVID-19 test results from a test taken within the prior 3 days of flying; OR
2) proof of recovery from COVID-19 in the form of (a) evidence of a prior positive test result and (b) a letter from a licensed health care provider or public health official clearing the passenger for travel.
What about travelers who have received COVID-19 vaccination? The CDC order does not include vaccination or proof of vaccination to clear passengers for travel. This may change in the future, but for now, vaccinated travelers will require a negative COVID-19 test to travel to the U.S.
Traveling Visitors v. US Citizens
The new CDC order applies to all air passengers and does not distinguish U.S. citizens or others with immigration status. U.S. citizens, permanent residents, and visa-holders (like all other international travelers) are required to meet one of the two above-outlined requirements for travel.