Authority of the Surgeon General to Direct the Public Health Service Not to Certify Arriving Homosexual Aliens as Possessing a "Mental Defect or Disease" Solely Because of Their Homosexuality

December 10, 1979

79-85 MEMORANDUM OPINION FOR THE ACTING COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE

Immigration and Nationality Act (8 U.S.C. § 1182)—Immigration and Naturalization Service—Public Health Service—Homosexuality as Grounds for Exclusion

This responds to your inquiry concerning the legal authority of the Surgeon General to direct the Public Health Service (PHS) medical of­ ficers' not to certify arriving homosexual aliens as possessing a “ mental defect or disease” solely because of their homosexuality. Under § 212(a)(4) of the Immigration and Nationality Act of 1952, as amended (“ the Act” ), 8 U.S.C. § 1182(a)(4), Congress requires the exclu­ sion of homosexual aliens from the United States. Enforcement of the Act’s exclusionary provision is a joint responsibility of the Immigration and Naturalization Service (INS) and the PH S.2 The INS performs ex­ aminations of all arriving aliens other than mental or physical examina­ tions, 8 U.S.C. § 1225, and it administratively adjudicates the admissibil­ ity vel non of aliens in doubtful cases, 8 U.S.C. § 1226. Upon referrals from INS officers, the PHS then conducts physical and mental examina­ tions of arriving aliens, and certifies “ for the information of [INS officers], any physical or mental defect or disease observed” in aliens so examined. Since 1952, the exclusion of homosexual aliens has been enforced both

'Physical and mental examinations o f arriving aliens may be perform ed by medical officers o f the Public Health Service or civil surgeons qualified as specified in 8 U .S.C . § 1224. References in this m em orandum to medical officers o f the Public Health Service are intended to include both groups o f examining physicians. 'Except when referring to specific docum ents, our understanding o f the facts and of the agencies’ positions is based on an O ctober 18, 1979 meeting between you, members o f your staff, the General Counsel o f the Departm ent of H ealth, Education and W elfare, and members o f this Office.

unilaterally by the INS, e.g., relying on an alien’s admission of homosex­ uality and jointly, subsequent to a certification by the PHS that particular aliens are afflicted with a “ mental defect or disease,” i.e., homosexuality. You indicate, however, that in the past several years, the number of refer­ rals to the PHS has increased significantly. On August 2, 1979, the Surgeon General and Assistant Secretary for Health of the Department of Health, Education and Welfare (HEW), issued a memorandum declaring that “ homosexuality per se will no longer be considered [by the PHS] a ‘mental disease or defect,’” and that “ the determination of homosexuality is not made through a medical diagnostic procedure;” he indicated that INS officers would be advised to stop re­ ferring aliens to the PHS for mental examinations solely on the ground of suspected homosexuality. You have questioned the Surgeon General’s authority to make these determinations and have inquired concerning the impact of his memor­ andum on the enforceability of the Act. For reasons stated below, we con­ clude: Congress clearly intended that homosexuality be included in the statutory phrase “ mental defect or disease,” and the Surgeon General has no authority to determine that homosexuality is not a “ mental defect or disease” for purposes of applying the Act; if the Surgeon General has determined, as a matter of fact, that it is impossible for the PHS medically to diagnose homosexuality, the referral of aliens to the PHS for certifica­ tion of homosexuality would be unhelpful; and the INS is statutorily re­ quired to enforce the exclusion of homosexual aliens, even though the Sur­ geon General has directed the PHS no longer to assist in this enforcement.

I. Hom osexuality as a “ Mental D efect or Disease”

The first policy promulgated by the Surgeon General’s memorandum is: “ [Homosexuality per se will no longer be considered [by the PHS] a ‘mental disease or defect.’” The asserted consequence of this finding is that PHS medical officers will no longer certify that any alien referred to them for physical and mental examination possesses a “ mental defect or disease,” within the meaning of 8 U.S.C. § 1224, solely on the ground of homosexuality. For the reasons that follow, we conclude that the Surgeon General has no authority to exclude homosexuality from the coverage of the phrase “ mental defect or disease” as used in the Act. Under 8 U.S.C. § 1224, PHS medical officers conduct mental and physical examinations of arriving aliens “ under such administrative regulations as the Attorney General may prescribe, and under medical reg­ ulations prepared by the Surgeon General of the United States Public Health Service.” Under this provision, the Surgeon General is empowered reasonably to regulate the PHS’s medical functions. To whatever extent intended by Congress, this authority would appear on its face to include discretion to promulgate policies regarding the description and diagnosis of disease. See, e.g., 42 CFR § 34.2(b), 34.4 (1978).

However, it is elementary that the Surgeon General may not redefine terms in a statute that have rationally been given certain and specific meaning by Congress: The power of an administrative officer or board to administer a federal statute and to prescribe rules and regulations to that end is not the power to make law—for no such power can be delegated by Congress—but the power to adopt regulations to carry into effect the will of Congress as expressed by the statute. A regulation which does not do this, but operates to create a rule out of harmony with the statute, is a mere nullity. [Manhattan General Equip. Go. v. Commissioner o f Internal Revenue, 297 U.S. 129, 134 (1936). See also, United States v. Larionoff, 431 U.S. 864, 873, and note 12 (1977), and cases cited therein.] Where Congress has classified homosexuality as a disease and requires on that ground the exclusion of homosexual aliens, the Surgeon General has no authority to disregard or to change the statute administratively. Neither the INS nor the PHS questions that Congress intended, under 8 U.S.C. § 1182(a)(4), to exclude homosexual aliens from the United States. That section provides: (a) Except as otherwise provided in this chapter, the follow­ ing classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States: * * * * * * * (4) Aliens afflicted with psychopathic personality, sexual de­ viation, or a mental defect; * * * Although the “ (a)(4) exclusions” do not expressly refer to homosexuals, the legislative history of the 1952 enactment and its 1965 amendment, as well as the interpretation of the 1952 provisions by the Supreme Court in 1967, conclusively establish that Congress intended to include homosex­ uals within their terms. Boutilier v. INS, 387 U.S. 118 (1967).1 There is no doubt that Congress intended homosexuality to be a “ men­ tal defect or disease” as those words are used in the Act. It included homo­ sexuals within medical categories, i.e., “ psychopathic personality, sexual deviation, and mental defect.” Its determination to exclude homosexual aliens from admission was based on the recommendations concerning medical exclusions made by the Senate Judiciary Committee in 1950: The subcommittee believes, however, that the purpose of the provision [of the Immigration Act o f 1917] against “ persons with constitutional psychopathic inferiority” will be more ade­ quately served by changing that term to “ persons afflicted with

’On the relevant history o f the original enactm ent, see Letter from Acting Surgeon General J. Masur to Representative Francis E. W alter (May 15, 1951), reprinted at H. Rept. 1365, 82d Cong., 2d sess. 45 (1952), and the discussion in S. Rept. 1137, Pt. 1, 82d C ong., 2d sess. 9 (1952). On the 1965 am endm ent, in which Congress, in response to the co u rt’s holding in Fleuti v. Rosenberg, 302 F.(2d) 652 (9th Cir. 1962), added the term “ sexual deviation” to 8 U.S.C. § 1182(a)(4), see H . Rept. 745, 89th C ong., 1st sess. 16 (1965), and S. Rept. 748, 89th Cong., 1st sess. 19 (1965).

psychopathic personality,” and that the classes of mentally [sic] defectives should be enlarged to include homosexuals and other sex perverts. [S. Rept. 1515, 81st Cong., 2d sess. 345 (1950).] The House Judiciary Committee, describing the original (a)(4) provisions as enacted in 1952, referred to them as “ medical grounds for exclusion.” H. Rept. 1365, 82d Cong., 2d sess. 45 (1952). Finally, 8 U.S.C. § 1224, providing that PHS medical officers shall cer­ tify “ any physical and mental defect or disease” observed in the arriving aliens they examine, also requires that these officers be provided with “ suitable facilities for the detention and examination of all arriving aliens who it is suspected may be excludable under paragraphs (1) to (4) or (5) of section 1182(a) [of title 8].” It would not be logical for Congress to have provided facilities suitable for the physical and mental examination of aliens suspected of being excludable under § 1182(a)(4), unless Congress assumed that the persons excludable under that paragraph are afflicted with diagnosable diseases. Congress considered homosexuality a disease. Not a word in the statute or its history suggests congressional intent that the Surgeon General be empowered in the future to eliminate homo­ sexuality as a ground for exclusion by declaring his disagreement with Congress’ determination that homosexuality is a “ mental defect or disease.” 4

II. Amenability of Homosexuality to Diagnosis

In addition to promulgating a new policy regarding the medical status of homosexuality, the Surgeon General asserts in his memorandum: “ the determination of homosexuality is not made through a medical diagnostic

4We reject as a general proposition the suggestion in an O ctober 16, 1979 letter to you from 18 Members o f Congress that the INS, or any other agency, “ may m ake policy changes in light o f changing facts and societal values w ithout regard to court decision or legislative history.” T hat position is flatly irreconcilable with the duly o f the President, and of the ex­ ecutive branch he directs, to “ take Care that the Laws be faithfully executed.” Constitution o f the United States, A rt. II, § 3, cl. 4. This would be a different situation had Congress not given any specific content to its general medical categories or otherwise indicated its intent that the Surgeon General define the A ct’s provisions in light o f changing medical opinion. For example, both the M embers’ letter and a m em orandum by the National Gay Task Force, forwarded on July 11, 1979 by its Co-Executive Directors to form er Associate A ttorney General Michael J. Egan, note that the INS, under the Im migration Act of 1917, excluded at least one alien for contem plated adultery, U.S. ex ret. Tournyv. Reimer, 8 F. Supp. 91 (S.D .N .Y . 1934), and deported at least one for criminal “ lewdness,” Lane ex re!. Cronin v. Tillinghast, 38 F.(2d) 231 (1st Cir. 1930). Both letters assert that the INS has since changed its policies in these areas, either under the 1917 Act o r under the analogous provisions o f the 1952 A ct. However, the provisions in­ volved—exclusion for intended acts o f “ immoral purpose” and deportation for crimes o f “ moral turpitude” —were left wholly undefined by the 1917 Act and by its legislative history. See S. Rept. 352, 64th C ong., 1st sess. (1916). (The terms are also not explained in the legisla­ tive history o f H .R . 6060, 63d C ong., 3d sess. (1916), in which the deportation category first appeared, o r in the legislative history o f the Act o f February 20, 1907, 34 Stat. 898, 899, in which the exclusionary provision originated.) In these cases, INS could reasonably infer C on­ gress’ intent that it prom ulgate definitions and implement policies that reflect contem porary assessments o f “ immoral purpose” and “ m oral tu rp itu d e.” No such intended discretion ap­ pears from the history o f § 1182(a)(4).

procedure.” The meaning of this statement is ambiguous. If it is asserted that the ascertainment of homosexuality is not possible through medical diagnosis on the tautological ground that homosexuality is not a medical or pathological condition, this finding is merely a reassertion of the Surgeon General’s first determination that homosexuality is not included in the statutory definition of “ mental defect or disease.” As stated above, this is a determination that the Surgeon General is not authorized to make. If the Surgeon General, however, has stated a fact of medical practice— namely, that doctors do not have available any procedure helpful in deter­ mining homosexuality—that fact, it appears, would not be subject to legislative alteration.5 If this latter assertion is in fact the Surgeon General’s determination, then it obviously would be unhelpful for the INS to refer suspected homosexuals to the PHS for mental examination. The accuracy of this position cannot be determined by this Office. III. Administrative Consequences

In light of the foregoing, it is necessary to determine the administrative consequences of the Surgeon General’s memorandum for the enforcement of the Act. His memorandum states: The Immigration and Naturalization officials * * * will be ad­ vised * * * that in accord with this change they should no longer refer aliens suspected only of being homosexual to the PHS for certification of a mental disease or defect under 8 USC 1224.

’We are in no position to assess and we express no view on this possibility. We note, however, that Congress was already aware in 1951 o f the limited helpfulness o f medical diagnosis in ascertaining homosexuality. In a m em orandum accompanying the May 15, 1951 letter from Acting Surgeon General J. Masur to Representative Francis E. W alter, the PH S explained: Sexual perverts —The language o f the bill lists sexual perverts or homosexual persons as among those aliens to be excluded from admission to the United States. In some in­ stances considerable difficulty may be encountered in substantiating a diagnosis of homosexuality or sexual perversion. In other instances where the action and behavior o f the person is [sic] more obvious, as might be noted in the m anner o f dress (so-called transvestism or fetishism), the condition may be more easily substantiated. Ordinarily, a history o f homosexuality must be obtained from the individual, which he may success­ fully cover up. Some psychological tests may be helpful in uncovering homosexuality o f which the individual, himself, may be unaware. At the present time there are no reliable laboratory tests which would be helpful in making a diagnosis. The detection o f persons with more obvious sexual perversion is relatively simple. Considerably more difficulty may be encountered in uncovering the homosexual person. Ordinarily, persons suffering from disturbances in sexuality are included within the classification o f “ psychopathic personality with pathologic sexuality.” This classification will specify such types of pathologic behavior as homosexuality or sexual perversion which includes sexual sadism, fetishism, transvestism, pedophilia, etc. In those instances where the disturb­ ance in sexuality may be difficult to uncover, a more obvious disturbance in personality may be encountered which would warrant a classification of psychopathic personality or mental defect. Reprinted in, H. Rept. 1365, 82d C ong., 2d sess. 47 (1952). The Surgeon General, in his August 2, 1979 m em orandum , does not explain how the facts o f diagnostic procedure have changed since 1951. We also note that, to enforce the (a)(4) exclusions, INS will presumably be required to promulgate some policy defining homosexuality and prescribing the appropriate investiga­ tion to be undertaken by INS officers. Such investigations—like medical diagnoses—will likely have to rely primarily, if not entirely, on the representations of the arriving aliens.

To the extent that the Surgeon General’s statement purports to authorize PHS medical officers to decline referrals from INS officers, his memo­ randum is without authority. Section 1224 of title 8 provides that physical and mental examinations of arriving aliens are to be conducted “ under such administrative regulations as the Attorney General may prescribe, and under medical regulations prepared by the Surgeon General of the United States Public Health Service.” [Emphasis added.] The question whether INS may properly refer particular categories of aliens to the PHS for examination is an administrative, not a medical question. Viewed as a question of law, the issue must be decided by the Attorney General, whose “ determination and ruling” with respect to “ all questions of law [relating to immigration and naturalization] shall be controlling.” 8 U.S.C. § 1103(a). On the other hand, if the Surgeon General’s advice is based on the asserted fact that the PHS has no procedures that would be helpful to the INS in these cases, that advice raises the same issue of medical fact dis­ cussed above. The legal issue posed is whether the INS is legally required to enforce the exclusion of homosexual aliens if PHS would no longer provide examina­ tions and certifications to assist the INS in verifying this ground for exclu­ sion. We think that the INS is required to do so. The sole indication that Congress intended that all suspected “ (a)(4)” aliens be examined by the PHS prior to exclusion arises by implication from the requirement of 8 U.S.C. § 1224: [M]edical officers shall be provided with suitable facilities for the detention and examination of all arriving aliens who it is suspected may be excludable under paragraphs (1) to (4) or (5) of section 1182(a) of [title 8]. A requirement of suitable facilities for the examination of all suspected “ (a)(4)” aliens arguably implies Congress’ intent that all such aliens receive physical and mental examinations. The structure of the Act, however, as well as its legislative history, and contemporaneous administrative interpretation, support the conclusion that examinations are not required in all cases, and that the requirement of suitable facilities for the examination of all aliens in the specified categories refers only to those aliens who may be referred to the PHS and by the INS. First, it must be noted that the statute does not impose any ex­ press obligation on the INS to refer potentially excludable aliens to the PHS for examination. On the contrary, the only express referral obliga­ tion imposed on examining immigration officers with respect to aliens “ who may not appear * * * to be clearly and beyond a doubt entitled to land,” 8 U.S.C. § 1225(b), is that the officers detain such aliens “ for fur­ ther inquiry to be conducted by a special inquiry officer.” Id. The conclu­ sion that PHS referrals were intended to be subject to the reasonable discretion of immigration officers is buttressed by 8 U.S.C. § 1224, which provides that the PHS shall render its medical certifications “ for the infor­ mation of the immigration officers and the special inquiry officers.”

Further, the exclusion provisions do not require a PHS certification as a basis for an (a)(4) exclusion. Examining immigration officers may require evidence seemingly ample to make a reasonable (a)(4) determination: sworn statements by aliens; the production of books, papers, and documents; and the testimony, under subpoena, of additional witnesses. 8 U.S.C. § 1225. Upon a referral by examining INS officers, a special in­ quiry officer must make a determination concerning the admissibility based on any evidence produced at the inquiry. 8 U.S.C. § 1226(a). The Act provides that a PHS certification that an alien is afflicted with a men­ tal defect as specified in § 1182(a)(4) will be conclusive of that fact at any hearing before a special inquiry officer, 8 U.S.C. § 1226(d), but nowhere implies that the absence of such a certification has any necessary effect whatsoever. In sum, we conclude that, although referrals to the PHS, in light of the Surgeon General’s directive, currently appear to be unhelpful with respect to the determination whether particular aliens are excludable as homo­ sexuals, the INS is required nonetheless to enforce the Act’s exclusionary provisions. The unavailability of the PHS in the enforcement process does pose ob­ vious practical problems. The term “ homosexuality” is highly imprecise, and Congress may not have intended the exclusion of every individual who could arguably be included under any definition of homosexuality. It may reasonably be inferred that Congress intended homosexuality to be de­ fined in light of current knowledge and social mores. Because immigration officers are not expert in analyzing the personali­ ties of arriving aliens, we believe it would serve the interests of rational law enforcement for the INS to promulgate a uniform policy for investigating the suspected homosexuality of arriving aliens. Such a policy might in­ dicate the extent to which examining officers are to rely on the rep­ resentations of the aliens themselves and the particular questions, if any, that officers may ask concerning specific conduct. Finally, in view of the Surgeon General’s memorandum and the conse­ quent law enforcement problems posed for the INS, we recommend that the memorandum, its consequences for the INS, and any resulting en­ forcement policy be brought to the attention of Congress.

John M . H arm on

Assistant A ttorney General Office o f Legal Counsel