White House adviser Stephen Miller was the driving force behind the Justice Department’s recent memo authorizing states to institutionalize people with disabilities rather than fund community-based care, said people briefed on the situation.
Miller, the president’s powerful deputy chief of staff, was frustrated that the department’s Civil Rights Division was still reaching settlements compelling states to transfer those experiencing mental illness out of institutions, added the individuals, who spoke anonymously out of fear of retaliation.
They said Miller felt DOJ’s agreements—including one reached with South Carolina in December—would increase homelessness and didn’t adhere to President Donald Trump’s July executive order pressuring cities and states to move homeless people into treatment centers.
The June 18 DOJ Office of Legal Counsel opinion concluded states may disregard decades of Supreme Court precedent and ensuing regulations mandating integration of individuals with disabilities into home or community settings.
Spokespeople for both the White House and DOJ denied Miller played a role in the memo.
The Civil Rights Division leadership team initially pushed back on the memo draft’s legal arguments, but OLC’s end product nevertheless wound up reflecting the desires of Miller and his team, the people said. DOJ civil rights head Harmeet Dhillon, who’s been vocal in promoting her realignment of the division’s mission in pursuit of Trump’s agenda, hasn’t weighed in publicly on the disability rights memo, while continuing her steady stream of social media posts.
“OLC’s analysis was reached completely independently of the White House or Stephen Miller,” said DOJ spokesperson Natalie Baldassarre. “The Civil Rights Division"—including two veteran career officials—"supported the White House and OLC in the conclusions reached in the opinion. Any suggestion to the contrary is false.”
The impetus for OLC’s opinion had been a mystery to some disability rights advocates, given the broad bipartisan support for government resources facilitating parents keeping their children with disabilities at home whenever possible. Many organizations have criticized DOJ for adopting a position they say threatens long-held community integration protections and that is contrary to numerous court rulings and to the views of Civil Rights Division political leaders in Trump’s first and second terms.
Miller’s sprawling domestic and international portfolio has included directing DOJ law enforcement surges aimed at reducing street crime in Democratic-led cities. He is widely considered among the most prominent figures in Trump’s second term dismantling of the department’s decades-long independence from the White House on charging decisions and legal analysis.
The homelessness order with which people said Miller believed DOJ wasn’t complying called on the attorney general to terminate in appropriate cases any consent decrees that thwart US policy of “encouraging civil commitment of individuals with mental illness who pose risks to themselves or the public or are living on the streets and cannot care for themselves.”
There is no evidence cited in the opinion demonstrating the rise in homelessness was caused by the Supreme Court’s 1999 decision in Olmstead v. L.C. holding that the Americans with Disabilities Act prohibits unjustified segregation of individuals with disabilities. In a recent case study, Brandeis University researchers highlighted how states have used their Olmstead settlements to reduce housing costs for low-income people with disabilities.
Prepared statements from the White House and DOJ didn’t respond to a request to provide evidence that DOJ’s prior posture ensuring community living generated an uptick in homelessness.
“Your reporting is not accurate. OLC formulates its opinions in a completely independent fashion from the” White House, said a White House official in the statement. “We have no control over what legal conclusions they reach. Stephen was not involved in any OLC activity.”
The DOJ legal counsel’s office has long held an outsized function advising the president and executive branch agencies on thorny legal questions. As is typical in similar OLC memos, the author of last week’s disability rights memo noted a request from an executive branch official—in this case the counsel to the president—triggered the office’s exploration of certain questions.
The office has traditionally taken the view that the White House shouldn’t be influencing the legal analysis conducted by DOJ lawyers, a former OLC career attorney said.
The former attorney, who was granted anonymity to provide candor, said OLC underwent a shift at the start of Trump’s second term from carefully interrogating facts provided by the White House to a culture that restricted its independence.
Another administration official said in an interview that the memo’s author, No. 2 OLC official Lanora Pettit, had considered the issue before entering the administration. Pettit, who arrived at DOJ last year directly from serving as Texas’ principal deputy solicitor general, didn’t speak with Miller while writing the opinion, the official added.
The Cicero Institute, a conservative Texas-based think tank with ties to the Trump administration, also appears to have informed DOJ’s decisionmaking. The institute advocates against housing and community-based care requirements to give states flexibility in the treatment of mental illness to address homelessness.
Devon Kurtz, the institute’s public safety policy director, said the White House took an interest in this topic as a policy matter following outcry from state lawmakers and health secretaries “saying these federal rules are out of step with our needs in our community for people with serious mental illness, the highest need individuals.”
“The administration certainly reads what we write about this issue, and we’re certainly always happy to talk to them about the issues we’re writing about,” Kurtz said in an interview.