Stephen Miller Has A Plan

During the first Trump administration, when Stephen Miller’s immigration policy proposals hit obstacles in federal court, rumors would circulate about his plans to dust off arcane presidential powers. Government lawyers were wary of overreach; officials in the West Wing and at the Department of Homeland Security would sometimes snicker.

LOL Stephen, they’d say, amused by his creative zealotry.

No one is laughing now. Miller, Donald Trump’s Homeland Security adviser and deputy chief of staff, has returned to the White House stronger and more determined than ever to silence the derision and plow through legal constraints.

Miller tried to deter migration during Trump’s first term with a series of moves implemented by trial and error, mostly one at a time. He tried “zero tolerance” family separations, asylum bans, and the “Remain in Mexico” policy. When the coronavirus pandemic hit, Miller finally had a plausible justification for using the emergency public-health law he had long coveted as a border-control tool, and he rode that policy—Title 42—to the end of Trump’s first term.

[McKay Coppins: Trump’s right-hand troll]

Miller’s policy making was generally reactive then, a response to the border pressures the administration was struggling to contain, former officials who worked with him say. As one career DHS official told us on the condition of anonymity, he was “throwing mud at the wall to see what would stick.”

Miller’s approach is different this time. He has unleashed an everything-at-once policy storm modeled after the MAGA guru Stephen K. Bannon’s “flood the zone” formula. Drawing on policy ideas worked up in conservative think tanks during the four years between Trump’s terms, Miller’s plan has been to fire off so many different proposals that some inevitably find a friendly court ruling, three administration officials told us.

This tactic also gives Miller multiple ways to seal the border, shut down the U.S. asylum system, and ramp up deportations. “It’s Do everything all at once everywhere,” says Mark Krikorian, the executive director of the Center for Immigration Studies, a group aligned with Miller that has incubated some of his policy ideas.

The administration’s court-defying use of the Alien Enemies Act this past weekend to send hundreds of deportees to a prison in El Salvador—including some after a district-court judge explicitly told the government not to—was his most brazen gambit yet. Miller did not respond to a request for comment.

The 1798 act has been used only three times in U.S. history: during the War of 1812, World War I, and World War II, when it provided the legal justification for the internment of Japanese, Italian, and German citizens. The Trump administration claims that the United States has been infiltrated by transnational gangs, including the Venezuelan prison syndicate Tren de Aragua, that it has designated terrorist groups.

After Trump called for the impeachment of the federal judge who tried to stop the deportations, calling him a “Radical Left Lunatic,” Supreme Court Chief Justice John Roberts issued a rare public rebuke. “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” he wrote.

[David A. Graham: What John Roberts’s rebuke of Trump left out]

Legal scholars say that the Trump administration’s deportation flights have pushed the country closer to a constitutional crisis than any other moves it has made.

Three months after leaving the White House, in April 2021, Miller co-founded a Trump-aligned think tank, the America First Legal Foundation, that he fashioned as a right-wing counter to the American Civil Liberties Union. The group’s lawyers filed scores of lawsuits against the Biden administration and U.S. companies. They also provided legal firepower to Texas Governor Greg Abbott and other Republican officials launching state-level immigration crackdowns.

Miller and Gene Hamilton, his longtime ally and an AFL co-founder, collaborated closely to prepare the immigration policy blitz of Trump’s second term, according to a former U.S. official who has worked for years with both men and requested anonymity to speak candidly.

“Very rarely at this level do you get a second chance at the same issues,” the official told us; Miller “knows what works and doesn’t work.”

Miller boasted during a November interview with Fox News of his plans to overwhelm opponents with rapid-fire executive actions from “the moment President Trump puts his hands on that Bible.” In the past two months, the administration has attempted to end birthright citizenship, declared an invasion at the southern border, suspended asylum processing, restored the “Remain in Mexico” policy, and deployed the U.S. military to guard the border and send deportees to Guantánamo Bay. Trump has enlisted nearly every federal law-enforcement agency to help with his mass-deportation campaign, a mobilization akin to a wartime effort.

Trump, Miller, and their allies have spent years attempting to convince the public that illegal immigration is an existential threat. While Democrats and skeptics roll their eyes at “invasion” rhetoric, the administration is systematically asserting wartime authorities predicated on the notion that the United States is facing a foreign invasion that justifies extraordinary powers that go well beyond those that presidents have typically employed. Miller claims that the administration is “liberating” U.S. states and cities from murderers and rapists, a position he uses to depict his critics as treasonous.

The invocation of the Alien Enemies Act was partly meant to bolster the number of deportations. Trump has been frustrated at the pace of removals so far in his term, which is well below the “millions” he promised, one senior White House official told us. But the move also sent a pair of other, secondary messages.

It was a dare, the official said, for critics to defend people who include immigrants with violent criminal records and alleged ties to a gang the administration has designated a terrorist organization.

“These are the worst of the worst,” the official said. “Do Democrats really want to be out there on a limb defending them?”

Among the deportees sent to El Salvador were a murder suspect, several people accused of assault, and others with misdemeanor charges, the ICE official Robert L. Cerna II told the court.

Cerna acknowledged that many of the deportees sent to El Salvador over the weekend did not, in fact, have criminal records, but said that was “because they have only been in the United States for a short period of time.” Cerna said some deportees were arrested because they were caught in the presence of suspected gang members.

The deportations have alarmed civil-rights lawyers and some Democrats, who cite a lack of due process as well as potential cases of mistaken identity for some of those being shipped to a foreign prison. Reporters at Reuters and The Washington Post spoke with family members of deportees this week who deny that their loved ones are affiliated with violent gangs and say that the men came to the United States to work.

“Two things are starkly different from Trump’s first term,” Lee Gelernt, the ACLU attorney who led the challenge to the family-separation policy and other Miller initiatives, told us.

“One is the pace at which they are issuing policies,” Gelernt said. “The other is the more strident stance they are taking in court, refusing to relent on even the smallest things.”

[Nick Miroff: ICE isn’t delivering the mass deportation Trump wants]

Gelernt said he’d been working through the night late last week to prepare briefings for the ACLU’s suit to stop deportees from being sent to the U.S. military prison at Guantánamo. Then he spent the weekend trying to stop the administration from using the Alien Enemies Act to bypass immigration courts. The relentless pace is a direct result of Miller’s plan to grind down opponents and break institutional resistance.

“The first 100 days will be a bolt of lightning,” Miller told Fox News in November. “The deep state, the swamp, and the Communists won’t know what hit them.”

While Miller, White House “border czar” Tom Homan, and Press Secretary Karoline Leavitt have issued defiant statements attacking U.S. District Judge James Boasberg, who ordered the government to halt its removal of the Venezuelans, Justice Department lawyers have insisted in court filings that the administration did not intentionally violate court orders.

Yesterday, Attorney General Pam Bondi and other top DOJ officials told the U.S. District Court for the District of Columbia that the immigration officials did not heed Boasberg’s orders Saturday evening because the deportation flights he’d tried to stop had already left U.S. airspace by the time he’d ruled. Trump officials are also challenging the judge’s eligibility to stop the administration more generally, asserting that the president’s efforts to conduct foreign affairs and protect national security is beyond the district court’s jurisdiction. If the administration’s use of the Alien Enemies Act is blocked, the White House and Trump-affiliated media intend to continue attacking individual judges and paint the entire legal system as out to stymie the president’s agenda, two officials said.

U.S. relations with the government of Venezuelan President Nicolás Maduro have been broken for years, crimping ICE’s ability to send back deportees amid a historic influx of migrants from the South American nation. El Salvador’s president, Nayib Bukele, saw an opportunity to deepen his ties to the MAGA movement and offered to become Trump’s jailer “for a very low fee” ($6 million a year for the deportees he’s accepted so far).

It is unclear if the deportees will have any chance to challenge their detention in El Salvador. Bukele taunted the district-court judge for failing to stop the flights. He said on social media that the detainees he’s received will be sent to his country’s Terrorism Confinement Center, a mega-prison complex, where they will perform forced labor.

The men—their heads shaved, their arms and legs in chains—have since been featured in videos distributed by the government of El Salvador. Family members of the men say they’ve had no way to communicate with their loved ones. So they study the propaganda videos for glimpses of sons and spouses among the deportees.