Abstract

Excerpted From: Michele Goodwin and Erwin Chemerinsky, The Trump Administration: Immigration, Racism, and COVID-19, 169 University of Pennsylvania Law Review 313 (January, 2021) (422 Footnotes) (Full Document)

COVID-19 is the greatest public health threat the United States has experienced in over a century. Not since the 1918 influenza pandemic has the nation experienced such a dramatic menace to its health. Not unlike recent influenzas, the 1918 influenza “was caused by an H1N1 virus with genes of avian origin.” According to the Centers for Disease Control and Prevention (CDC), the virus was first detected in the United States by military personnel in the spring of 1918 and within a year it had spread worldwide, infecting “500 million people or one-third of the world's population ...” Health officials estimated that at least fifty million people worldwide perished due to the disease, with “about 675,000 [deaths] occurring in the United States.”

Then, as now, xenophobia and racism shape political discourse and public understanding about disease, origins, and infection. Even though the earliest recorded cases of the 1918 influenza were confirmed at Fort Riley, Kansas, this H1N1 influenza became widely described as the “Spanish Flu.” In essence, associating the 1918 H1N1 with maligned southern Europeans obscured the American genesis story and complimented the “junk science” narrative of the bourgeoning eugenics movement in the United States. As one commentary explains, “[s]ome, looking for a point of origin of the so-called Spanish influenza that would eventually take the lives of 600,000 Americans, point to that day in Kansas” where “the first domino would fall signaling the commencement of the first wave of the 1918 influenza.”

First, Albert Gitchell, the company cook at Fort Riley, “reported to the camp infirmary with complaints of a 'bad cold.”’ Shortly thereafter, the second reported case--Corporal Lee W. Drake--also showed signs of infection. Mere hours later, the camp surgeon, Dr. Edward R. Schreiner, reported more than “100 sick men on his hands,” all suffering from the 1918 influenza that would be erroneously described then and now by Americans as the “Spanish Flu.”

Of course, none of this would matter, except that racism, classism, and xenophobia alarmingly marked (and mark) the times and dangerously dictated perceptions about so-called polluted bodies and unfit persons, bounded in domestic and foreign policy. Something as seemingly innocuous as the name of a disease actually matters in law and society. So-called “unfit” persons were decidedly unwelcome in the United States--even if they were American citizens. Much of this ugly past is brought to light today through anti-immigration political platforms, political rhetoric, and debates about who qualifies as a birthright citizen. As Professor Rachel E. Rosenbloom explains in copious detail, “[t]hroughout the country's history, debates over citizenship have always been deeply entwined with racialized notions of who should be considered a 'real’ American.”

As few scholars and commentators have done, we find it important to contextualize and associate the early twentieth century American political climate with the 1918 influenza, including the rise and enactment of eugenics laws, which ultimately resulted in more than 60,000 poor girls, women, and men being forcibly sterilized; the stereotyping of Asians as rife with social and physical disease, resulting in their denial of naturalization and entry in the United States; and the scapegoating of African Americans as the epitome of American pollutant. These perceptions, stereotypes, and stigmas--largely driven by xenophobic, white supremacist ideologies-- ultimately dictated immigration policies. Indeed, the Immigration and Nationality Act, Section 212, prohibits the entry of those who are “certified to be helpless from sickness, mental or physical disability ...”

By calling attention to the American social backdrop during the 1918 influenza, we identify its spread not only as part of a physical and cultural landscape, but dangerously as a key feature of the legal terrain. We raise two important concerns. First, the weaponization of racism; the powerful influence of racial stereotypes, symbolism, and xenophobia in shaping public consciousness. Second, we raise alarm about the unconstitutional legal policies that flow from racist ideology, manifesting harmful racial ideologies into law. We see both as dangerous.

In the wake of both anti-immigration platforms targeting nondocumented residents from Mexico, Central, and South America and racial hostility toward Asian Americans, patterns similar to those a century prior now emerge. For example, under the Trump Administration, the use of racial symbolism and stereotypes shaped how the White House communicated about the pandemic and, ultimately, policy discourse about COVID-19. This we see in former President Trump's continued, racially hostile referencing of COVID-19 as the “Wuhan virus,” “Chinese flu,” and “kung flu.” Commentators may debate whether the rise in anti-Asian hate crimes in the wake of COVID-19 relates to Trump's racist pandering, but the cases of threats, children being bullied, and physical attacks (people spat upon, assaulted with harmful chemicals, and stabbed) raise serious alarm. As our Article goes to print, six women from Asian American communities were gunned down in Atlanta, Georgia and in New York, onlookers filmed a horrific attack on a 65-year-old Asian American woman as the perpetrator yelled, “you don't belong here.”

Even though China aggressively addressed COVID-19, President Trump barred Chinese passenger carriers from flying into the United States, banned graduate students from China, and even threatened to prohibit the popular app among teenagers, TikTok, from operating in the United States. In the latter case, the President considered designating the app a national security threat.

However, our concern is not only with the powerful symbolism and dangerous racist rhetoric, far too frequently weaponized during the Trump Administration, but also with unconstitutional immigration policies. Immediately after taking office in 2017, President Trump signed an executive order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States,” otherwise known as the “Muslim Ban”, as the order specifically targeted Muslim-majority countries. During that same period, President Trump signed an executive order, which significantly increased the number of immigrants considered a priority for deportation.

In 2018, President Trump issued a proclamation suspending the right of asylum to any migrant crossing the United States-Mexico border outside a lawful port of entry. In 2019, the Department of Homeland Security and the Department of Justice announced an Interim Final Rule denying asylum seekers who cross the United States-Mexico border eligibility for asylum if they had not previously applied for sanctuary in countries they traveled through to reach the United States, effectively barring asylum claims from nationals from Central America. The most severe and inhumane of these policies is the Justice Department's “zero tolerance” rule related to unauthorized crossings of the southern border, which resulted in thousands of children separated from their parents and placed in literal cages.

In the truest meaning of intersectionality--related to the nexus of race, citizenship, and health--we are concerned that in the wake of COVID-19 a new world order has emerged--one that threatens not only civil liberties, but ultimately the public's trust in its medical institutions and government. Nowhere was this more apparent than Donald Trump vowing to make sweeping changes to United States immigration policy, promising in part to “chose immigrants that [he thought]” were “the likeliest to thrive and flourish and love [the United States].”

The hostile mandates on nondocumented individuals residing in the United States pose unique problems during times of medical crisis. We take that up in this Article. Drawing on recent litigation in the Courts of Appeals for the Second, Seventh, and Ninth Circuits, we argue that Trump Administration efforts to implement anti-immigrant-related conditions on receipt of federal grants and bar funding to “sanctuary cities” served to undermine the legitimacy of the federal government generally and separation of powers specifically.

Pursuing such matters during times of a health crisis serves to literally weaken and undercut the public's health. Taking seriously President Trump's series of anti-immigration threats and actions and the potential for a future president to take similar actions, this Article expresses our normative intuitions and articulates why it would be unconstitutional for any President to seek to misappropriate or block federal funds from reaching local governments addressing the pandemic. Our concerns were further substantiated by President Trump's refusal to answer whether Congressional appropriations used to pay hospitals that test and treat uninsured coronavirus patients would apply to nondocumented persons. In our view, even while Donald Trump failed in his bid for a second term and was impeached prior to leaving office, important lessons remain to be learned and anti-immigration harms persist, yet to be resolved.

In Part I, we briefly address the underlying institutional and infrastructural problems rendered visible by mounting deaths during the COVID-19 pandemic. Given the dramatic racial disparities in infections and deaths due to the pandemic, we address President Trump's claim, in the height of COVID-19 suffering, to have “done more” for Black Americans and Latinx populations than any other President since Abraham Lincoln. We study both analytically and empirically the legitimacy and veracity of such claims as the disparate death toll rose and continue to rise among these populations.

Part II then turns to litigation involving sanctuary cities, specifically addressing the Trump Administration's threats and active efforts to condition federal funding on outing nondocumented individuals. Part III unpacks how such conditions amount to an unconstitutional quid pro quo. It argues that conditioning federal funds on outing nondocumented individuals harms the public's health, including interfering with the objective nature of evaluating public health and responding to it, undercutting confidentiality and trust in the physician-patient relationship, undermining screening and treatment objectives, and chilling individuals from seeking care.

[. . .]

The President is not above the law, and neither are federal agencies. President Trump's immigration strategy imposed unconstitutional conditions on local governments that refused to comply with his mandates. By withholding funds to these jurisdictions, the President violated fundamental constitutional law principles. The collateral damage lingers. Our position is that federal funding that has nothing to do with immigration enforcement cannot be conditioned on a jurisdiction's compliance with federal immigration policy. Presidential administrations cannot threaten to withhold federal funds merely because a sanctuary city or county chooses an immigration strategy with its local immigrant communities with which the President disapproves or finds weak, distasteful, or offensive.

Stated differently, the President may not usurp, or command powers not granted to the executive in the United States Constitution. Nor may the President seize such powers simply because the President has the authority to issue executive orders. As the President is not above the law, neither are the President's executive orders or federal agencies. We recognize that the Trump Administration's legal battles and political hostility toward sanctuary cities predate the coronavirus pandemic.

Yet, the Administration's demands that sanctuary cities comply with ICE or risk denial of federal grants, especially during times of health crisis, was not only an unlawful violation of separation of powers, but it also served to undermine the public's health and trust in medical providers. In short, it created an unconstitutional quid pro quo. As we view the matter, President Trump's immigration policies potentially threatened federal funding for child protective services, public health, and other essential services for which counties across the country receive and rely upon funds designated by Congress.

Michele Goodwin is Chancellor's Professor of Law & Founding Director, Center for Biotechnology & Global Health Policy, at the University of California, Irvine.

Erwin Chemerinsky, Jesse H. Choper Distinguished Professor of Law and Dean, University of California, Berkeley School of Law.