Before Covid-19, Trump Aide Sought to Use Disease to Close Borders

Stephen Miller’s zealotry is impressive and depressing on a whole range of immigration issues, with this showing the depth of his anti-immigration ideology:

From the early days of the Trump administration, Stephen Miller, the president’s chief adviser on immigration, has repeatedly tried to use an obscure law designed to protect the nation from diseases overseas as a way to tighten the borders.

The question was, which disease?

Mr. Miller pushed for invoking the president’s broad public health powers in 2019, when an outbreak of mumps spread through immigration detention facilities in six states. He tried again that year when Border Patrol stations were hit with the flu.

When vast caravans of migrants surged toward the border in 2018, Mr. Miller looked for evidence that they carried illnesses. He asked for updates on American communities that received migrants to see if new disease was spreading there.

In 2018, dozens of migrants became seriously ill in federal custody, and two under the age of 10 died within three weeks of each other. While many viewed the incidents as resulting from negligence on the part of the border authorities, Mr. Miller instead argued that they supported his argument that President Trump should use his public health powers to justify sealing the borders.

On some occasions, Mr. Miller and the president, who also embraced these ideas, were talked down by cabinet secretaries and lawyers who argued that the public health situation at the time did not provide sufficient legal basis for such a proclamation.

That changed with the arrival of the coronavirus pandemic.

Within days of the confirmation of the first case in the United States, the White House shut American land borders to nonessential travel, closing the door to almost all migrants, including children and teenagers who arrived at the border with no parent or other adult guardian. Other international travel restrictions were introduced, as well as a pause on green card processing at American consular offices, which Mr. Miller told conservative allies in a recent private phone call was only the first step in a broader plan to restrict legal immigration.

But what has been billed by the White House as an urgent response to the coronavirus pandemic was in large part repurposed from old draft executive orders and policy discussions that have taken place repeatedly since Mr. Trump took office and have now gained new legitimacy, three former officials who were involved in the earlier deliberations said.

One official said the ideas about invoking public health and other emergency powers had been on a “wish list” of about 50 ideas to curtail immigration that Mr. Miller crafted within the first six months of the administration.

He had come up with the proposals, the official said, by poring through not just existing immigration laws, but the entire federal code to look for provisions that would allow the president to halt the flow of migrants into the United States.

Administration officials have repeatedly said the latest measures are needed to prevent new cases of infection from entering the country.

“This is a public health order that we’re operating under right now,” Mark Morgan, the acting commissioner of Customs and Border Protection, told reporters earlier this month. “This is not about immigration. What’s transpiring right now is purely about infectious disease and public health.”

The White House declined to comment on the matter, but a senior administration official confirmed details of the past discussions.

The architect of the president’s assault on immigration and one of Mr. Trump’s closest advisers inside the White House, Mr. Miller has relentlessly pushed for tough restrictions on legal and illegal immigration, including policies that sought to separate families crossing the southwest border, force migrants seeking asylum to wait in squalid camps in Mexico and deny green cards to poor immigrants.

Mr. Miller argues that reducing immigration will protect jobs for American workers and keep communities safe from criminals. But critics accuse him of targeting nonwhite immigrants, pointing in part to leaked emails from his time before entering the White House in which he cited white nationalist websites and magazines and promoted theories popular with white nationalist groups.

The idea that immigrants carry infections into the country echoes a racist notion with a long history in the United States that associates minorities with disease.

The federal law on public health that Mr. Miller has long wanted to use grants power to the surgeon general and president to block people from entering the United States when it is necessary to avert a “serious danger” posed by the presence of a communicable disease in foreign countries.

The administration in adopting the latest restrictions on immigration has relied not only on that public health authority, but also on another provision of federal law that allows the president to deny entry to foreigners whose presence “would be detrimental to the interests of the United States.”

The provision, section 212(f) of the Immigration and Nationality Act, grants broad power to the president, but sets a high legal bar for its use. The Reagan administration invoked it to block large numbers of Haitians traveling by sea to seek asylum in the United States, and during the Obama administration, it was used to enforce sanctions against Iran.

The Trump administration has made use of the authority on occasion, including the sanctions imposed on Iran and a travel bandirected at six predominantly Muslim countries in 2017 as a purported defense against terrorism. But the president has often expressed frustration at being discouraged from using the authority more often and in policies that are more sweeping in scope, including when record numbers of migrant families surged across the southern border.

He seemed to discount the stringent standards required to invoke it, often referring to it as his “magical authority” to restrict immigration, one of the former officials who was present for the discussions said.

Mr. Miller also frequently expressed interest in using the 212(f) authority. On more than one occasion, the official said, he discussed it as a backup option in case the courts blocked a policy such as the administration’s public charge rule, which prevents people who have used public benefits from obtaining green cards.

The use of section 212(f) and the public health authority during the pandemic is in keeping with a defining characteristic of Mr. Miller, as described by the three former officials who worked in proximity to him: His refusal to let things go. When advised that a proposed policy is not legal, they said, he works steadily to find an alternative justification and continues to raise the issue.

The former officials who were present for the discussions said Mr. Miller suggested using the president’s public health authority to seal the border so frequently that it was difficult to recall specific scenarios.

In repeated meetings in the Oval Office, in the Situation Room and during late-night phone diatribes that gave few opportunities for his colleagues to chime in, they said, Mr. Miller pushed the idea as a legal silver bullet.

He and others in the administration frequently talked about migrants as potential vectors of disease, they said. Mr. Miller cited historical precedent for invoking the president’s public health powers, pointing out that many immigrants were refused entry at Ellis Island in the late 19th century amid concerns that contagious diseases could be brought in to overcrowded cities.

During the mumps outbreak in 2019, after other White House advisers disagreed with the use of the public health authority to halt immigration, Mr. Miller ordered federal immigration officials to begin generating reports on the level of infection among detained migrants for White House review.

In the meantime, he encouraged the State Department to step up medical screenings of migrants, and crafted a presidential proclamation barring entry for immigrants who could not afford to purchase health insurance, a measure that was blocked by a federal judge.

The coronavirus pandemic has created an opening for some of Mr. Miller’s other longstanding policy goals, such as finding a way to quickly deport children who travel to the United States without a parent or other adult. Mr. Miller considered that category of migrants among the most difficult to stop, said one official who had discussed it with him, because the young people are protected legally by substantial due process requirements designed to ensure that deportation would not place them in harm’s way.

Since border crossings were scaled back under the coronavirus restrictions, even unaccompanied children and teenagers have been turned away.

While the administration succeeded in invoking the public health authority to impose the new border restrictions, that is only one of a number of aggressive legal strategies Mr. Miller has proposed, some of which have not been adopted.

At one point in the first year of the administration, Mr. Miller proposed designating smugglers, who are often paid to help migrants across the rugged and cartel-controlled terrain of the southwest border, as terrorists, one of the former officials said. Mr. Miller, the official said, argued that this would allow U.S. authorities to deny entry to asylum seekers on the grounds that they had aided a foreign terrorist organization during their journeys.

Mr. Miller has also drawn up plans to expand security on the southern border.

Over the years, some national guard and military officers have been deployed there, but they have been relegated mostly to stringing up concertina wire because of legal restrictions on their ability to operate in the United States.

To overcome those hurdles, Mr. Miller has proposed invoking the Insurrection Act, a law written in the 1800s, that allows for the military to be deployed in the face of civil unrest. Under that law, he said, military officers would gain the authority to prevent migrants from crossing the border.

About Andrew
Andrew blogs and tweets public policy issues, particularly the relationship between the political and bureaucratic levels, citizenship and multiculturalism. His latest book, Policy Arrogance or Innocent Bias, recounts his experience as a senior public servant in this area.

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