Restricting Executive Branch Travel Bans, Giving Detained Travelers Access to Legal Counsel, & Banning Anti-Competitive Behavior by Prescription Drug Makers (H.R. 2486)

What is H.R. 2486?

(Updated August 4, 2020)

(UPDATED - 3/10/20): This bill has been amended to serve as the legislative vehicle for three bills, including the NO BAN Act, the Access to Counsel Act, and the Affordable Prescriptions for Patients Act. In its original form, the bill was known as the FUTURE Act and reauthorized funding for historically black colleges & universities (HBCUs) and other minority-serving institutions, after passing the House & the Senate (with revisions), the House removed the FUTURE Act's provisions from the bill. A breakdown of the three bills now included in this legislative package can be found below.

NO BAN Act

This section would prohibit the executive branch from denying entry to the U.S. from any class of non-citizens based on their religion. 

It would allow the executive branch to temporarily suspend or restrict the entry of a certain class of non-citizens (either immigrants or non-immigrants) if, based on specific & credible facts, their entry would undermine the security or public safety of the U.S., the preservation of human rights, democratic processes or institutions, or international stability. The State Dept. & Dept. of Homeland Security would be required to:

• Only issue a suspension or restriction when required to address specific acts related to a compelling interest listed above;

• Narrowly tailor the suspension or restriction to use the least restrictive means to achieve the compelling governmental interest;

• Specify the duration of the suspension or restriction; and

• Consider waivers to any class-based restriction or suspension and apply a rebuttable presumption in favor of granting family-based and humanitarian waivers.

In exercising its authority to suspend or restrict entry, the executive branch would be required to notify Congress with the specific evidence it claims supports the need for the suspension or restriction. Within 48 hours, the State Dept. & DHS would provide a briefing and submit a written report to Congress that describes:

• The action and its specified objective;

• The estimated number of individuals who will be impacted;

• The constitutional and legislative authority under which the action took place; and

• The circumstance necessitating such action, including how it complies with the limits imposed by this bill, as well as any intelligence informing such actions.

If the executive branch doesn’t provide a briefing and written report to Congress within 48 hours, the travel suspension or restriction would be lifted. If the report is provided, an unclassified version would be made publicly available.

Whenever DHS finds that a commercial airline has failed to comply with regulations for the detection of fraudulent documents used by passengers traveling to the U.S. (including personnel training requirements), DHS may suspend the entry of some or all non-citizens transported to the U.S. by that airline.

This bill would rescind presidential proclamations and executive orders that were enacted to restrict entry from specified countries upon enactment. DHS would be required to produce several reports related to the number of visa applications that were restricted by those executive actions.

For the purpose of this bill, the term “public safety” would include efforts necessary to contain a communicable disease of public health significance.

This section’s full title is the National Origin-Based Antidiscrimination for Nonimmigrants Act.

Access to Counsel Act

This section would require that access to legal counsel or another “interested party” be provided to specified persons during inspection upon their entry to the U.S. at ports of entry or deferred inspection sites. 

Covered individuals would include U.S. nationals; lawful permanent residents; non-citizens seeking admission as an immigrant with a valid unexpired immigrant visa; non-citizens seeking admission as a non-immigrant with a valid non-immigrant visa; a refugee; a returning asylee; or a non-citizen approved for parole with a valid advance parole document.

DHS would have to provide covered individuals with a meaningful opportunity to consult with counsel and an interested party within one hour after the beginning of the secondary inspection process and as necessary throughout the inspection process (including during deferred inspection); allow counsel and an interested party to advocate on behalf of the covered individual such as by providing the immigration officer with information, documentation, and other evidence in support of the individual; and accommodate a request by the covered individual for counsel or an interested part to appear in-person at the secondary or deferred inspection site.

Covered individuals could also consult with an “interested party” including a relative, their visa sponsor, or any person, organization, or entity with a bona fide connection to the individual.

This section would take effect 180 days after enactment.

Affordable Prescriptions for Patients Act

This section would codify definitions of “product hopping” and “patent thicketing” within the Federal Trade Commission Act. This would empower the FTC to challenge such practices as anti-competitive and enable the FTC to use its equitable remedy authority to keep companies from capitalizing on their abuse of the system. 

“Product hopping” takes advantage of the FDA approval system to get around pharmacy-level generic substitution laws. When a drugmaker makes a new version (such as a minor reformulation) of a drug, the generic version of the old drug can’t be substituted for the new drug because the generic is tied to the old version.

“Patent thicketing” is a practice in which manufacturers take advantage of the complex interplay of different kinds of patents (methods of manufacture, formulations, devices, uses, as well as the underlying composition of matter patents) that are inherent to one drug to deploy patents strategically to prevent competition. This forces would-be competitors to fight through what can sometimes be hundreds of patents before their drugs can be approved.

Argument in favor

This bill would repeal the Trump administration’s harmful travel ban and place checks on future administrations to ensure that such bans aren’t adopted without good reason. It would also ensure that travelers entering the U.S. who are detained & inspected have access to legal counsel & can consult with other interested parties. Finally, this bill would prevent prescription drug companies from engaging in anti-competitive behavior that increases prices for consumers.

Argument opposed

This bill would harm national security by undermining the executive branch’s ability to restrict travel to the U.S. from places where there is an outbreak of a highly infectious disease or which lack the capacity to vet travelers for terrorism links. It’s also a deeply cynical political ploy by House Democrats to include prescription drug pricing reforms that could pass as a standalone bill to a package of unrelated measures that are facing a veto threat.

Impact

Travelers from countries subject to entry restrictions; their legal counsel or interested parties; DHS & the State Dept., along with frontline personnel; and prescription drug companies.

Cost of H.R. 2486

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Rep. Judy Chu (D-CA) offered the following statement on the introduction of the NO BAN Act:

“Make no mistake, this ban is and always has been a Muslim Ban -- just as the President promised it would be during his campaign. And it is completely unnecessary. America has one of the strongest vetting systems in the world and we have demonstrated an ability to safely grant visas to travelers and visitors for years. But security was always a flimsy pretext for Trump’s real goal of fomenting bigotry and dividing families, which is precisely what this ban has done. The effect of Trump’s Muslim Ban has been to leave America less safe and families suffering needless pain. That is why we introduced this legislation to repeal all of Trump’s Muslim Bans, but also to change the law so no future president can issue a similar ban without evidence.”

Rep. Pramila Jayapal (D-WA) offered the following statement on the introduction of the Access to Legal Counsel Act:

“January 27, 2020 will mark the third anniversary of President Trump’s xenophobic and unconstitutional Muslim Ban. The recent accounts of Customs and Border Protection officers unjustly detaining Iranian Americans at the border crossing in Blaine, Washington, are a stark reminder that this Administration’s attacks on civil liberties are far from over. It is more critical than ever that we affirm the civil rights of individuals in detention and ensure that all who cross our borders are treated with dignity and respect. Our nation’s reliance on detention and deportation, both in ICE and CBP custody, is a shame. Denying access to an attorney on top of that is a gross violation of basic civil rights and civil liberties. The Access to Counsel Act makes sure we uphold principles of due process and fair treatment.”

The White House expressed opposition to this package and threatened to veto it over the inclusion of the NO BAN Act & Access to Legal Counsel Act, while also chiding Democrats for adding prescription drug legislation to the bill that should’ve been considered separately. It wrote in a statement of administration policy:

“Title I of H.R. 2486 [the NO BAN Act] would harm the national security of the United States. Notably, the President’s authority to restrict travel into the United States has been central to the Administration’s ongoing efforts to safeguard the American people against the spread of COVID-19. At a minimum, Title I of H.R. 2486 would cause dangerous delays that threaten the safety, security, and health of the American people… 

The Administration also opposes Title III of H.R. 2486, the Access to Legal Counsel Act of 2020, which would negatively affect trade and travel… Implementing this requirement would divert Government resources, including personnel, technology, and facilities, from their mission of facilitating lawful trade and travel, slowing processing times at our ports of entry. 

Finally, the Administration is also concerned about the inclusion of drug pricing measures in H.R. 2486. The Administration is committed to working with Congress on legislation to lower drug prices. But such legislation to address a topic of such importance to the health and wellbeing of the American people should be the product of good-faith negotiation between the branches. It should not be pushed through the House as an unrelated rider to a partisan immigration bill.”

The NO BAN Act passed the House Judiciary Committee on a party-line vote of 22-10, with Democrats in favor and Republicans opposed, and has the support of 219 Democratic cosponsors. The Access to Legal Counsel Act passed the House Judiciary Committee on a party-line vote of 18-6 with Democrats in favor and Republicans opposed, and has the support of 50 Democratic cosponsors.

Of Note:  While he was campaigning for president, Donald Trump called for “a total and complete shutdown Muslims entering the United States until our country’s representatives can figure out what the hell is going on.” After his inauguration in early 2017, President Donald Trump signed executive orders banning travel from several Muslim-majority nations that are hotbeds of terrorism, including Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen with inadequate traveler vetting processes. After lawsuits led to the ban being blocked, it was reintroduced, blocked again, and reintroduced. Although no versions of the travel ban contained language about religion, Democrats referred to it as a “Muslim ban”, which fact-checkers noted was a false allegation.

Ultimately, the Supreme Court weighed in on the third iteration of the travel ban, which restricted travel by nationals of five Muslim-majority nations -- Iran, Libya, Somalia, Syria, and Yemen -- plus North Korea and Venezuela. Chief Justice John Roberts wrote the court’s majority opinion in the 5-4 decision upholding the travel ban, in which he noted it was “facially neutral toward religion” and added:

“The proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices. The text says nothing about religion.”

The court’s liberal justices wrote in a dissent that Trump’s comments from the campaign trail was sufficient evidence that the travel ban was motivated by anti-Muslim animus rather than national security justifications.

Media:

• Sponsoring Rep. Judy Chu (D-CA) Press Release (NO BAN Act)

• Sponsoring Rep. Pramila Jayapal (D-WA) Press Release (Access to Counsel Act)

• House Rules Committee

• White House Statement of Administration Policy (Opposed to NO BAN & Access to Counsel)

• Countable (NO BAN Act)

• Countable (Affordable Prescription Drugs Act)

• Countable (Context - SCOTUS)

• FactCheck (Context)

• Politifact (Context)

Summary by Eric Revell

(Photo Credit: iStock.com / izusek)