B-239598, May 17, 1990

B-239598, May 17, 1990

Miscellaneous Topics - Human Resources - Health care - Communicable diseases - Administrative determination DIGEST: 1. Provision in supplemental appropriations act directing the President to exclude HIV-infected aliens from admission to the United States was not permanent legislation in view of the absence of words of futurity, the fact that its purpose could be and was achieved during the effective period of the act, and the legislative history of the section. Section 518, Pub.L. No. 100-71. Miscellaneous Topics - National Security/International Affairs - Immigration/naturalization - Restrictions - Communicable diseases Miscellaneous Topics - Human Resources - Health care - Communicable diseases - Administrative determination 2. Because the President retains discretion to continue to exclude HIV- infected aliens from the United States, if Congress now believes that HIV infection should not constitute a basis for inadmissibility of aliens, legislation may be required to effect that change.

Honorable Henry A. Waxman

Chairman, Subcommittee on Health and the Environment

Committee on Energy and Commerce

House of Representatives:

Your letter of April 23, 1990, asked for our expedited response to questions about the current authority of the President to permit the entry into the United States of aliens testing positive for human immunodeficiency virus (HIV) infection.

The Immigration and Nationality Act prohibits entry of those aliens with "dangerous contagious diseases." An amendment to a 1987 supplemental appropriations act directed the President, by a specified date, to list HIV infection as a dangerous contagious disease. By that date, HIV infection was added to the list, although by the Secretary of Health and Human Services. You ask whether the President is now permitted to change that determination.

We conclude that the 1987 law does not clearly bar the Secretary or the President from later deciding that HIV infection is not a dangerous contagious disease, but that to do so could only be justified based on a determination in good faith that HIV infection properly should no longer be listed in that category. Therefore, if the President or the Secretary, independently of the 1987 appropriation act requirement, continue to believe that HIV infection is a dangerous contagious disease, legislation would be necessary as a practical matter to make infected aliens admissible.

You also asked about vesting control of the list in the Secretary of Health and Human Services. We believe that the Secretary continues to have the same authority to control the listings under current law that he did before enactment of the 1987 appropriation act provision. A detailed discussion follows.

The Supplemental Appropriations Act, 1987, provides that "on or before August 31, 1987, the President, pursuant to his existing power under section 212(a)(6) of the Immigration and Nationality Act, shall add human immunodeficiency virus infection to the list of dangerous contagious diseases contained in title 42 of the Code of Federal Regulations." Section 518, Pub.L. No. 100-71, July 11, 1987. The Immigration and Nationality Act prohibits entry of aliens with "dangerous contagious diseases," as defined in regulations implemented by the Department of Health and Human Services (HHS). 8 U.S.C. Sec. 1182(a)(6) (1988); 42 C.F.R. Sec. 34.2 (1989). At the time the law was enacted, the Department was in the process of adding HIV infection to the list of dangerous contagious diseases. It completed that process before the statutory deadline.

A threshold question is what authority the President has with respect to the designation of dangerous contagious diseases. Despite the wording of the 1987 law, which refers to the President's "existing power" under section 212(a)(6) of the Immigration Act, that Act generally vests authority for its administration in the Attorney General (8 U.S.C. Sec. 1103), with specific authority for the Secretary of HHS to promulgate regulations governing medical examinations (8 U.S.C. Sec. 1224). It is in HHS' medical examination regulations that the list of dangerous contagious diseases appears. 42 C.F.R. Sec. 34.2.

The President has no existing statutory power under the cited subsection to determine which diseases are to be considered dangerous and contagious. (He does have authority to suspend or restrict entry of any alien or class of aliens when he finds that their entry "would be detrimental to the interests of the United States." 8 U.S.C. Sec. 1182(f).) For convenience, the following discussion is largely couched in terms of the President's power, but it should be recognized that the reference in the 1987 provision to his power under section 212(a)(6) is incorrect and that this increases the difficulty of achieving an authoritative interpretation of the statute.

Both the wording of the law and the presumption that appropriation acts provisions are temporary support the proposition that the President is no longer bound by the 1987 law. With respect to the wording, the 1987 provision directed the President to add HIV infection to the list "on or before August 31, 1987." The law thus required only a one-time action-- listing HIV infection as a dangerous contagious disease-- which could be (and was) taken before the prescribed deadline.

In addition, the law, as is generally the case with appropriation acts, may have been effective only for the fiscal year to which the appropriation act applied. If that were the case, its effect on the President might be said to have expired with the appropriation, at the end of fiscal year 1987. In a sense, however, the question whether the law is temporary by virtue of being in an appropriation act is moot because, HIV infection having been added to the list (before expiration of the Act), the President had done all that the law literally required him to do.

The question remains whether the action which the law required the President to take is, as a result of the law, irrevocable. The language of the provision-- both the references to adding HIV infection to the list, and to acting "on or before August 31, 1987"-- supports the view that its purpose was to compel the immediate issuance of regulations, not to mandate indefinite maintenance of the regulations. The amendment does not by its terms bar the later deletion of HIV infection from the list of dangerous contagious diseases which are a basis for excluding aliens, nor is such a bar a necessary implication of the amendment, in our view.

Moreover, the law does not amend the Immigration and Nationality Act, and that Act makes the decision which diseases to list as dangerous and contagious a discretionary one. That discretion includes, in our view, the right to decide that a disease which once met the statutory criteria no longer does so. To interpret the appropriations act provision as requiring the maintenance of HIV infection on the list would arguably be inconsistent with the discretion created by the Immigration and Nationality Act.

The legislative history of the 1987 supplemental appropriations act is not definitive on the issue before us. We believe that it is consistent with the interpretation that the law compelled the President's immediate action, but did not necessarily fetter permanently the discretion which the Immigration and Nationality Act creates.

From its inception, the intent behind the provision, according to Senator Helms, its sponsor, was simply to ensure the speedy finalization of the already proposed regulations adding HIV to the list of dangerous contagious diseases:

"It took over 1 year to finalize regulations placing AIDS on the list of dangerous contagious diseases. My amendment will provide an incentive to help insure that the proposed rule adding HIV infection to the list of dangerous contagious diseases will be added to the list and will be added promptly. We cannot have any more bureaucratic delay."

133 Cong. Rec. 14284 (1987)

The amendment evolved through three versions. First, it directly amended the Immigration and Nationality Act, but would therefore have been vulnerable to a point of order. The second version linked it to the availability of funds and thus avoided the point of order, but created the possibility that funds for AIDs patients would be withheld if the President did not timely comply.

The present form of the amendment was the result of an agreement that, if the link to the availability of funds were removed in order to protect funding for AIDS, a point of order would not be raised. However, despite the removal of the threat of a point of order, the language did not revert to the first version. As a result, the Immigration and Nationality Act, including the discretion which it vests in the executive branch to define "dangerous contagious disease," remains intact.

Senator Helms' first version of the provision, by amending the immigration law, would clearly have left the President with no discretion, and thus would have made the HIV determination irrevocable by any administrative action. The second version was just as clearly temporary: it was linked to the appropriations act in which it was to be contained and, if enacted, would have expired along with that act on September 30, 1987.

The final version was not intended to change the substance of the amendment, but rather to avoid the possibility that the amendment in its second form would deprive AIDS patients of federal funds. The stated purpose of the amendment-- overcoming the delays in the process of getting HIV on the list of dangerous contagious diseases-- could be and was achieved during the effective period of the appropriations act of which it was a part. Moreover, the only form of the amendment which would have made the listing of HIV infection unequivocally permanent-- by amending the Immigration and Nationality Act-- was withdrawn, and the provision in the Act remains in effect. Finally, we find no indication that the Congress intended if HIV infection were later determined not to be a dangerous contagious disease, that it could not be removed from the list.

As noted above, the context of enactment of the amendment was not an effort to constrain the President's discretion, but rather an attempt to get him to exercise that discretion more quickly to achieve what he had already said he was going to do. The President (or, more precisely, the Secretary) may therefore, relying on the Immigration and Nationality Act, decide to remove HIV from the list, provided that he does so in a manner consistent with that Act. Specifically, he would have to determine that HIV infection is not a "dangerous contagious disease" within the meaning of the Immigration and Nationality Act.

By the same token, the Secretary retains the discretion under the Immigration and Nationality Act to continue to list HIV infection. (Moreover, he may well contend that, in doing so, he is complying with the will of the Congress, as expressed most recently in the 1987 provision.) If the Congress now believes that HIV infection should no longer be maintained on the list, the fact that the Secretary appears in our view to have legal authority to take it off is not helpful, if he chooses not to exercise that authority. In addition, as noted above, the President has express authority, independent of the dangerous contagious diseases provision, to exclude classes of aliens when, in his judgment, their entry would be detrimental to the interests of the United States. As a practical matter, therefore, legislation may be necessary to require the admission of HIV-infected aliens.

As agreed with your staff, we will not release this opinion to the public for 30 days.