President-elect Donald J. Trump will likely justify his plan to close the border with Mexico by citing a public health emergency due to immigrants bringing diseases to the United States.
All he has to do now is find one.
Mr. Trump invoked public health restrictions for the last time, known as Title 42, in the early days of the pandemic in 2020, when the coronavirus was rampant across the world. As he prepares to return to office, Mr. Trump has no such public health disaster to report.
Yet his advisers have spent recent months trying to find the right illness to build their case, according to four people familiar with the discussions. They considered tuberculosis and other respiratory illnesses as options and asked their allies in the Border Patrol for examples of illnesses detected among migrants.
They also considered attempting to rationalize Title 42 by broadly arguing that migrants at the border come from a variety of countries and may carry unknown diseases — an assertion that echoes a long-standing racist notion in the United States. States that minorities transmit infections. Mr. Trump’s team did not respond to a request for comment.
The plan to invoke border restrictions based on sporadic cases of illness or even a vague fear of illness – rather than a major epidemic or pandemic – would amount to a radical reliance on public health measures with the aim of suppressing immigration. Even as the coronavirus was spreading, the use of health authorities to turn back migrants drew scrutiny from courts and public health officials.
But Mr. Trump’s immigration advisers, led by Stephen Miller, his pick to become deputy chief of staff, believe they are entering a political environment that will welcome more aggressive border policing, particularly after some Democrats have adopted restrictions like Title 42, according to people familiar with the planning. President Biden used it to turn back thousands of migrants before finally deciding to lift it, long after his public health advisers said the restrictions were no longer useful in an effort to stop the spread of the disease.
Title 42, part of the Civil Service Act of 1944, gives health authorities the power to prevent people from entering the United States when it is necessary to avoid a “serious danger” posed by the presence of a communicable disease in foreign countries.
Mr. Miller has been thinking for a long time Title 42 a key tool for its goal of closing borders to migration. He was basically on a year-long quest to find enough examples of disease among migrants to justify recourse to the law.
Even before the coronavirus spread, Mr. Miller asked his aides to keep an eye on U.S. communities hosting migrants to see if illnesses were breaking out there. He took advantage of a mumps outbreak in immigration detention centers in 2019 to push for the use of the public health law to seal the border. It was criticized in most cases by cabinet secretaries and lawyers – until the advent of the coronavirus.
The Centers for Disease Control and Prevention, not the White House, is responsible for evaluating whether the public health rule is necessary at the border. And even as the pandemic spread across the United States, CDC officials pushed back on the Trump White House’s position that turning away migrants was an effective way to prevent the spread of disease.
Martin Cetron, director of the agency’s Division of Global Migration and Quarantine, told a House committee that implementation of the border restrictions “came from outside the subject matter experts at the CDC » and “had been entrusted to us” by the White House.
When Mr. Biden took office, he initially kept public health rules in place at the border, even as CDC officials told his top aides there was no clear rationale for doing so. public health to keep the border closed to asylum seekers. Both the Biden and Trump administrations have argued that the rule is necessary to prevent the spread of disease in border detention centers. But Mr Biden’s top White House aides were privately concerned that lifting the rule would lead to increased migration.
In his second term in the White House, Mr. Trump’s team will work to avoid such refusals. He intends to install loyalists in his administration who are unlikely to try to stop his most aggressive proposals.
In an interview with the New York Times in 2023, Mr. Miller seemed confident that the public would accept Mr. Trump’s invocation of Title 42. He said the new administration intends to use the law, citing “serious strains of influenza, tuberculosis, scabies, other respiratory illnesses like RSV, etc.” , or just a general problem that mass migration poses a threat to public health and carries a variety of communicable diseases.
Mr. Trump’s attempt to deter immigration on the basis of public health, even without a clear illness to justify its use, is just one expected part of a wave of first-day executive actions that his team is being developed to crack down on immigration.
Mr. Trump’s advisers also discussed declaring a national emergency to free up Defense Department funds and move military personnel, aircraft and other resources to the border. They also want to revive a policy that required migrants to wait in Mexico, rather than the United States, until their immigration court date — although they would need Mexico to accept a such agreement.
Mr. Trump’s immigration advisers received a briefing on these border restrictions – as well as the use of emergency public health restrictions – during a recent meeting with Homeland Security officials as part of the transition between administrations, according to a person familiar with the matter. . Following a meeting with Senate Republicans on Wednesday evening, Mr. Trump said he would close the border on his first day in office.
Some immigration experts have questioned how effective public health rules are in reducing border crossings.
Since Title 42 was enacted in 2020 until it was lifted in 2023, border authorities have expelled people more than 2.5 million times. Biden administration officials have publicly argued that the use of Title 42 at the southern border has led to an increase in the number of migrants attempting to cross the border multiple times, a practice known as recidivism.
Blas Nuñez-Neto, a White House official, said that in this way, Title 42 “could have” led to an increase in the number of border crossings that the administration was struggling to manage.
The current situation at the border is particularly calm, especially when compared to the figures observed a year ago. Border agents made more than 47,000 arrests in December, according to a senior U.S. Customs and Border Protection official, a significant drop from the previous year, when nearly 250,000 such arrests were made. place.
Biden officials implemented a measure barring asylum to those who crossed the southern border starting this summer. It can only be lifted if the number of crossings drops to a certain threshold for several weeks, which has not yet happened.
Maggie Haberman And Jonathan Swan reports contributed.