The Unchecked Authority of Trump’s Immigration Orders

In the months before the election, Donald Trump’s allies and advisers repeatedly claimed that, if he won a second term, his first day in office would immediately overwhelm the efforts of any organized opposition. “The A.C.L.U. won’t know where to sue first,” one of them told me. Within twenty-four hours of Trump’s Inauguration, twenty-two states, two cities, and a group of nonprofits, including the A.C.L.U., filed lawsuits to block one of a dozen immigration-related executive orders that Trump signed on Monday. The order, called “Protecting the Meaning and Value of American Citizenship,” would not only end birthright citizenship, which has been enshrined in U.S. law for more than a century; it would also deny the “privilege of United States citizenship” to the children of parents who lived in the country legally but didn’t have green cards or citizenship status themselves. At a press briefing organized by the Federalist Society, John Yoo, the former Justice Department lawyer whose maximalist view of executive power was the basis for the Bush Administration’s use of torture during the war on terror, said, “This one, I think, is the most legally tenuous, and it’s going to invite a huge fight that could tie up the Administration in knots.” On Thursday, a federal judge temporarily blocked the order, calling it “blatantly unconstitutional.”

Still, as legal analysts and immigration experts scrambled to parse the language of the new orders, they had little choice but to triage on a Trumpian continuum, where, in many cases, actions that would have seemed unfathomable just years or even months before were now regarded as essentially normal. Others were more obviously alarming. Under an order called “Clarifying the Military’s Role in Protecting the Territorial Integrity of the United States,” the Department of Defense might not simply assist federal immigration authorities to provide provisional detention space for migrants or to conduct logistical tasks at the border, as it has in the past. Instead, the President was now calling on active-duty troops to carry out a “mission to seal the borders and maintain the sovereignty, territorial integrity, and security of the United States by repelling forms of invasion including unlawful mass migration.” Specifically, the order calls for a new Unified Command Plan to be drawn up within ten days. “That potentially takes things to another level,” Elizabeth Goitein, a national-security expert at the Brennan Center for Justice, told me. “This at least seems to contemplate military operations at the border. It’s completely unexpected and pretty outrageous.”

A central theme in all of Trump’s immigration orders is recasting migration as a form of “invasion.” As a piece of political rhetoric, the word has become numbingly histrionic. But as a legal notion, in the world of these executive orders, it triggers a response that goes far beyond the President’s already broad powers to manage immigration. Both Trump and President Joe Biden have sought to bar entry to asylum seekers through an expansive reading of the Immigration and Nationality Act, which is the main statute covering federal immigration law. These new orders aim to cast aside the I.N.A. and allow Trump to seek recourse in the Constitution as a President defending his country from a foreign threat. “He has entered into fairly undefined legal territory by invoking the Constitution to potentially supersede the entire I.N.A. and create a wide enforcement scope over the people, government, and nonstate actors who may have carried out this supposed invasion,” Andrea Flores, a former White House official and border expert, told me.

Many of these orders reinforce the fiction that mass migration constitutes some kind of war. At the moment, following months of sharply declining numbers of migrants at the border, the government is arresting fewer people than it did in the final months of Trump’s first term. Even in late 2023, when there was a legitimate crisis, with two hundred and fifty thousand people apprehended by Border Patrol in the month of December alone, the idea that the country was in the midst of a hostile foreign takeover would have been absurd. Another of Trump’s Day One orders designates “the Cartels” in Mexico, as well as Tren de Aragua and MS-13, two gangs that are respectively associated with Venezuela and El Salvador, as “foreign terrorist organizations.” The cartels “function as quasi-governmental entities, controlling nearly all aspects of society,” according to the order. The other gangs “are extraordinarily violent, vicious, and similarly threaten the stability of the international order.” Most of these groups, especially the Mexican cartels, are involved in drug smuggling and human trafficking, but labelling them as terrorists widens the scope of the Administration’s enforcement options. Revealingly, the order about cartels and gangs makes reference to the Alien Enemies Act, a remnant of the Alien and Sedition Acts of 1798. This law could apply only if Congress declared war or if the President claimed that a foreign government was threatening to invade or attack; he could then detain and deport legal permanent residents and others who are here lawfully if they are from countries that are considered “enemies” of the U.S. government.

Trump and his top immigration adviser, Stephen Miller, have threatened to use the Alien Enemies Act as well as the Insurrection Act, which would employ the military in policing domestic protest; in these executive orders, Trump does not invoke either act officially, but he demonstrates that they are under serious consideration. In one order, he asks the Departments of Homeland Security, Justice, and State to make preparations for his possible use of the Alien Enemies Act; in another, he instructs the D.H.S. and the Department of Defense to provide recommendations on the Insurrection Act. “Some of the executive orders are so off base either on the law or on practical implementation that you have to interpret them as messaging statements,” Goitein told me. “Because the President has inherent constitutional authority to repel sudden attacks or invasions, he’s presumably trying to signal that this is a military operation rather than a law-enforcement operation. The problem is that unlawful migration doesn’t constitute an ‘invasion’ as a legal matter.”

But even the Day One orders that were widely anticipated will have a profound impact. One was the declaration of a “national emergency” at the border, which Trump had also done in 2019, after Congress refused to appropriate more money for his border wall; now as then, the declaration would enable him to free up funding for construction while also enlisting troops to assist immigration authorities. By Wednesday, the Pentagon announced that it was sending fifteen hundred troops to the border “to address the full range of threats outlined by the President.” It was equally unsurprising that Trump halted the U.S. refugee program, which the Biden Administration had rebuilt after its dismantling during Trump’s first term. More than ten thousand refugees who’d been cleared to fly to the U.S for resettlement, including sixteen hundred Afghans who were fleeing their country, primarily because of past ties to U.S. forces, were left in limbo. Trump also undid a program started under the Biden Administration that relied on the President’s parole authorities to manage the entry of more than half a million people from Venezuela, Haiti, Cuba, and Nicaragua. Each day for roughly the past two years, an additional thousand asylum seekers have been able to schedule appointments at ports of entry along the U.S.-Mexico border through a government app called CBP One. Trump cancelled the app, stranding thousands of people who’d been waiting in northern Mexico. The father of a family of three, who were stuck in Ciudad Juárez, told Arelis Hernández, of the Washington Post, “After everything we’ve done and gone through to get here . . . if only I had had the appointment for three hours earlier.”

As Trump was cancelling Biden-era policies, he was also reinstating others from his own first term. The Migrant Protection Protocols, commonly called Remain in Mexico, which forced tens of thousands of asylum seekers to wait indefinitely in northern Mexico, are back in place, as is a form of extreme vetting meant to block visas and other forms of entry for immigrants from certain countries. Ideas from Trump’s first term that either had minimal impact or never materialized—such as a registry of noncitizens and a government hotline for victims of crimes committed by immigrants—have reappeared. But this time measures like the travel ban were replaced by more methodical reviews and preparatory actions that could serve as the precursors to such policies while putting them on more solid legal footing. I asked a senior congressional aide what was most surprising. “The fact that they’re pacing themselves with the country bans,” the person replied.

While these orders were being signed, four high-ranking career officials at the Executive Office for Immigration Review, the country’s top immigration court, which is run out of the Department of Justice, were fired. Tom Jawetz, a top lawyer at the D.H.S. in the Biden Administration, told the Times that it was “a Day 1 blood bath.” The new Administration is already clearing out the civil servants who were seen as impediments to Trump’s first-term agenda.

In the days before the Inauguration, amid rumors of mass arrests in Democratic cities across the country, people stayed home in fear, much like they had at the start of 2017. This time expectations are worse, owing to the fact that Trump successfully campaigned on the promise of carrying out mass deportations. Reports of expected operations in Chicago, fuelled in part by the remarks made by members of the incoming Administration, led to a fifty-per-cent decline in foot traffic in one of the city’s busiest retail corridors, according to the head of the local Chamber of Commerce. “It’s going to be disastrous,” she told Bloomberg. “If raids happen and people are too afraid to go out, it’s going to be an impact that’s going to last for years.”

Under Biden, in a refinement of a policy begun during the Obama Administration, immigration authorities had a series of priorities for deciding whom to target for arrest from among the estimated eleven million undocumented people living across the country. “Their priorities were violent criminals and recent arrivals,” Muzaffar Chishti, of the Migration Policy Institute, told me. “If a person hadn’t committed a crime and didn’t have an order of removal against him, it was relatively certain he wouldn’t get deported.” As part of the new slate of executive orders, Trump has scrapped this approach, meaning anyone who’s undocumented is a potential target. The randomness of who might be vulnerable to arrest has been an ostensible point of pride for Tom Homan, the President’s new “border czar,” who ran Immigration and Customs Enforcement (ICE) during the first Trump term. Back in 2017, Homan told Congress, “if you’re in this country illegally and you committed a crime by being in this country, you should be uncomfortable, you should look over your shoulder.” (After Trump’s reëlection, he added, “If you want to self-deport, you should self-deport because, again, we know who you are, and we’re going to come and find you.”) A policy under which ICE refrained from making arrests at hospitals, schools, and places of worship, known as “sensitive locations,” has been cancelled.

An executive order called “Protecting the American People Against Invasion” provided a detailed preview of the new Administration’s priorities for enforcement in the interior of the country. So-called sanctuary cities and states that have limited their coöperation with ICE would be penalized. But the order also described efforts to audit federal funding for N.G.O.s that provide services either “directly or indirectly” to “removable or illegal aliens”; to begin a critical review of the long-standing designation called Temporary Protected Status, which currently covers hundreds of thousands of immigrants; and to consider sanctions against “recalcitrant countries” that might not accept U.S. deportation flights.

On Monday, while Trump signed his executive orders in the Oval Office, he fielded questions from the press, one of which was about a comment he’d made to Sean Hannity in 2023. “Are you a dictator on Day One?” the journalist asked. “No, no,” Trump said. “I can’t even imagine being called that.” Armed for the first time in his career with a popular mandate, albeit a slim one, he could now claim that he was giving the public what it wanted. The A.C.L.U. could sue him on the particulars, and, presumably, it will continue to. But, politically, who was ready to actually challenge him?

The real mark of Trump’s new powers may not have been in the executive orders at all but in a Senate vote cast later that evening. Twelve Democrats, including some who have recently won reëlection, joined Republicans in passing the Laken Riley Act, named for a Georgia nursing student who was murdered by a Venezuelan immigrant early last year. The law would require the detention of any undocumented immigrant charged with (but not convicted of) crimes including shoplifting or minor theft. Another provision allows state attorneys general to sue the U.S. Attorney General or the Secretary of Homeland Security if an immigrant paroled into the country commits a crime judged to harm the state or any of its residents physically or financially. “This bill does nothing at all to address any of the actual problems associated with the U.S. immigration system,” Flores, the former White House official, told me. Congressional Republicans were baffled that the Democrats caved so quickly. It will be the first bill Trump signs into law. ♦