In the past two years, the so-called Title 42 policy has been invoked about two million times to expel migrants along the southern border, the majority of whom were likely prevented from making the asylum claims to which they are supposedly entitled under other parts of the law. This situation, which has shut the door to humanitarian migration to hundreds of thousands of people and triggered mass death and suffering, emerged entirely from the single-minded anti-immigrant zealotry of former White House adviser Stephen Miller, and his total indifference to the law’s original purpose.
Miller helped make Title 42 infamous. He also made this specific interpretation of the law durable. And Title 42 was hardly the only change to immigration policy that he wrought during the Trump administration, when he used what power he had at his disposal to bring his xenophobic designs into being. But Miller’s innovation was a simple one: He shook the trees of the U.S. Code to find useful bits of obscure and forgotten statutory authority, which he then sharpened into weapons to launch a culture-war blitzkrieg. The Biden administration has access to the same avenues of executive power—and a powerful incentive to use Trump’s most notorious aide-de-camp’s tools to launch a counterstrike.
The use of Title 42 as a border restriction had been a Miller priority since the start of the administration, and he’d pondered invoking it as far back as 2018, two years before Covid was spreading uncontrollably. The text of the law itself authorizes the surgeon general—an authority later transferred to the Centers for Disease Control and Prevention—to “prohibit, in whole or in part, the introduction of persons and property from such countries or places as he shall designate,” specifically in order to prevent “the introduction of [a communicable] disease into the United States.” It doesn’t, however, make mention of expulsions or removals, a fact pointed out by a federal judge who ordered the Trump administration to stop expelling unaccompanied minors in late 2020.
Not only had the statute never been used for expulsions or as a widespread tool to shut down access to asylum, there doesn’t appear to be a record of any prior order restricting access to any category of people. It had been essentially sitting in cobweb-ringed archives, unnoticed and somewhat forgotten by everyone—everyone except Miller.
In the span of two years, the notion of using this ostensible public health law to fundamentally end asylum went from being a wild scheme straight out of immigration restrictionists’ most fervent and fetid fever dreams to the official national policy of the United States. What’s more, it’s become the accepted consensus among centrists: Several moderate Democratic legislators have since backed the idea of codifying Miller’s scheme as a permanent program.
Title 42 may be one of the more emblematic outgrowths of this approach, but it certainly wasn’t the only one. Miller expanded expedited removal of recent immigrants to its full statutory capacity and got the administration to sign third-country agreements to ship asylum-seekers to Honduras, Guatemala, and El Salvador under the absurd legal rationale that they would be just as safe there as in the U.S. Trump infamously used an obscure statutory authority that had previously been invoked mainly to bar entry for war criminals and sanctioned foreign officials to issue the so-called Muslim ban, attempt to block all uninsured immigrants, and essentially shut down immigration altogether during the early pandemic.
Former Miller boss Jeff Sessions, during his tenure as Trump’s first attorney general, fundamentally remade the immigration courts by chucking precedent and leaning heavily on what had been little-used administrative powers. The mechanism to enact perhaps the Trump era’s most notorious and emblematic immigration policy—2018’s family separation program—was the employment of what were infrequently used federal criminal statutes against uninspected border crossings. And on and on.
The point here isn’t that Miller is some uniquely gifted legal thinker; he isn’t even a lawyer. The point is that he’s a fanatic who undertook this task with almost religious fervor, examining every scrap of law and regulatory power he could think of for ways in which they could be twisted in favor of his overarching objectives. He started with the end goal and went hunting for the statutory authority to back-fill his designs—and was certainly not too bothered by a lack of precedent or legislative intent. It is past time for the Biden administration to adopt the same tactic.
That sounds like a recipe for lawsuits, and it was. Every Miller-era machination mentioned above was challenged in the courts, and several failed. The effort to ban uninsured immigrants was enjoined. The first two travel bans were struck down. An attempt to terminate the Deferred Action for Childhood Arrivals program was halted. By one count, as of April 2019, a total of 70 Trump administration policies had been struck down by the courts, including 14 on immigration alone. Title 42 itself has been in litigation nonstop since the program was instituted, with lawsuits alternately trying to get it declared unlawful or, more recently, to stop the Biden administration from terminating it.
Yet it hardly mattered. Miller threw so much at the wall that what stuck was enough to reshape the system. As things stand, Biden keeps getting sued anyway—often by none other than Miller himself, whose post–White House move has been to establish a conservative legal group to duke out the culture wars in federal courtrooms. But at this point, who cares if policies are legally bulletproof? Miller didn’t care, and neither should Biden. This is a war of attrition now, and the federal government is well positioned to notch significant victories out of sheer volume and legal firepower.
I’m not the first to suggest that Biden take more aggressive executive action, but this isn’t about taking actions with long-standing precedent or which fall squarely within the purview of constitutional or delegated presidential power. Biden has armies of lawyers at his disposal who could comb through swaths of federal statutes that are mostly gathering dust and extract powers that are practically dormant or that the laws may not have intended to grant in the first place.
The president already seems to be cautiously dipping his toes into these waters, with the administration having issued a guidance in the aftermath of the Supreme Court’s precedent-shattering overturn of Roe v. Wade warning doctors and hospitals that a failure to treat pregnancy-related conditions that threaten the life of the parent, up to and including abortive procedures, will be treated as a violation of federal law, which carries severe penalties. Still, this maneuver was pretty clearly downstream of the actual text and intent of the law itself. Biden needs to get more creative.
Find some obscure law about protecting reefs to limit offshore drilling. Shoehorn an arcane regulatory power around interstate shipping to force the lowering of drug prices. Use a provision on intellectual property licensing to target stock buybacks. Whatever it takes, nothing is too absurd or too harebrained. Do this a hundred times, and if 90 initiatives are immediately struck down, that still leaves 10 victories that can measurably improve people’s lives. It also means you forced the conservative legal movement into a hundred fights on which it might otherwise never have needed to expend resources.
Before the inevitable critiques arrive that this is a surefire path to regulatory mayhem, here’s a response: Well, no shit. This is a self-evidently terrible way to govern, and no one wants it. Yet it’s going to be one of the last remaining untapped depots of political ammunition for Biden if his slim congressional majorities get crushed in the midterms, as they well might. Miller showed us all that this approach can work on immigration. Biden should take that wisdom and run with it. Get a flame-throwing, militant Miller for every policy area, and let them loose on the U.S. Code.
