Immigration Policy under Trump 2.0 (Part I)

“When I am President, on Day One, instead of fighting Texas, I will work hand in hand with Governor Abbott and other Border States to Stop the Invasion, Seal the Border, and Rapidly Begin the Largest Domestic Deportation Operation in History. Those Biden has let in should not get comfortable because they will be going home.”

– Donald Trump, Truth Social, Jan. 25, 2024.

President-elect Trump has promised a radical overhaul of U.S. immigration policy to reverse the Biden administration’s open-borders agenda and replace it with sweeping restrictionist alternatives in his second term. To that end, his campaign and allies at outfits like the Heritage Foundation have drawn up a raft of executive orders and policy memoranda that can be put in place in order to secure the border, deport illegals, and tighten up the quantity and quality of legal immigration into the USA.

Some of these initiatives — finishing the border wall, restoring the Remain in Mexico policy for asylum seekers, ending DACA and Temporary Protected Status (TPS) for various national groups, curbing refugee numbers, banning immigration from certain terrorism-plagued countries, and prioritizing the deportation of everyone present without lawful status — pick up where his first term left off.

Others will go further still, including a commitment to carrying out “the largest mass deportation in U.S. history”, the use of the military to help secure the border, and a push to end birthright citizenship.

There are good reasons to think Trump’s opponents will be less successful in curbing this agenda than they were in his first administration. For one thing, the public is on board: 61% of registered voters said that immigration was a priority for them in the election according to the Pew Research Centre, and 55% of them want immigration levels reduced, meaning that action on the issue will be at the top of the next president’s to-do list. For another, Congressional Republicans, who won a trifecta after capturing control of the Senate and keeping the House of Representatives, are far more MAGA-friendly now than they were back in the days of Speaker Paul Ryan and his Chamber of Commerce-led agenda. The make-up of the federal appellate courts and the Supreme Court has also changed radically thanks to Trump’s four years of judicial appointments, with conservatives on the Supreme Court now holding a 6-3 supermajority. This has tilted the legal environment in his favor compared to the first term, when the administration’s immigration policies had a historically low win rate of just 10% when challenged in court.

As for Trump’s own team, who made many errors during the first administration which their opponents were able to exploit, they are likely to be smarter and better prepared to quickly implement his policies this time around. As Stephen Miller, the new White House Deputy Chief of Staff for Policy, put it: “Trump will unleash the vast arsenal of federal powers to implement the most spectacular migration crackdown. The immigration legal activists won’t know what’s happening.”

Although the political and legal terrain is more favorable for a crackdown under Trump 2.0 than it was four years ago, efforts remain subject to a welter of legal challenges. Given the make-up of the Senate, where Republicans are well short of the filibuster-proof threshold of 60 votes, it is also doubtful that Congress will be able to pass any substantive legislation to support Trump’s efforts. Nonetheless, even without any new laws, the powers of the Presidency to radically reshape American immigration policy through executive orders, policy memoranda, and rule-making are enormous. With that in mind, this extended article summarizes five key immigration initiatives we can expect to unfold during this second Trump administration, and the legal and practical challenges they are likely to face.

Securing the Border

The GOP party platform, released during the Republican National Convention in July, promised, “We will complete the Border Wall.” This is of course a promise that resonates deeply with his base: during Trump’s first term he built 500 miles of the wall, much of which replaced smaller, dilapidated barriers, but to the dismay of early fans like Ann Coulter he left office with the remaining 1,500 miles of the totemic US-Mexico border barrier unfinished.

Trump has indicated that he will redirect military funds to construct new sections of the wall again if necessary, defying congressional appropriations — an approach that repeats tactics from his first term, when an unreconstructed Paul Ryan/Mitch McConnell-led GOP Congress refused to prioritize border security over other spending priorities.

He has also promised to resurrect the Remain in Mexico policy. This initiative, formally called the Migrant Protection Protocols (MPP), was first introduced in 2019, and required migrants who entered the U.S. over the southern border and requested asylum to return to Mexico while their cases were heard. Its introduction coincided with a sharp reduction in previously spiking encounters at the border, as you can see below.

The Biden administration announced a suspension of the MPP program in early 2021, and the DHS Secretary formally terminated it on June 1, 2021. While litigation briefly forced the Biden administration to reinstate it, the Supreme Court held that MPP termination did not violate the Immigration and Nationality Act (INA). However, the Court noted that under the statute, the Secretary has a discretionary authority to return a noncitizen to a contiguous foreign territory. Federal courts reviewing the matter are therefore likely to determine that the statute grants the next DHS Secretary permission to return asylum seekers to Mexico in order to await their court dates if and when the Trump team reinstates it.

The new administration is also likely to revive the asylum cooperative agreements (ACAs) it previously made with El Salvador, Honduras, and Guatemala, which the Biden administration suspended in February 2021. These agreements, which came into effect in 2019, allowed the US to turn back asylum seekers to the three signatory countries where they could pursue asylum claims. Trump’s team will probably seek to reach such agreements with other countries as well, especially in South America and Africa.

They are also likely to re-implement Title 42, a public health authority that was first used during the COVID-19 pandemic to expel migrants at the border without providing them the opportunity to apply for asylum. The Biden administration ended the program on May 11, 2023 but it could plausibly be reactivated by invoking other health-related threats such as severe strains of the flu, tuberculosis, scabies, and other respiratory illnesses. Whether the declaration of a continuing public health emergency of the sort that is required to trigger Title 42 would survive legal challenges on this basis remains to be seen.

To implement these enhanced border security measures, Trump plans to hire 10,000 new Border Patrol agents. This would enlarge the Border Patrol by 50% and require congressional approval. The President Elect has also promised to offer pay raises and bonuses to enhance recruitment and retention within the agency, which has struggled with low morale and had difficulty filling existing positions under the Biden administration.

By invoking the Alien Enemies Act of 1798 and the Insurrection Act of 1807, Trump also plans to deploy federal troops to assist in apprehending illegal aliens at the southern border. This will invite legal challenges under the Posse Comitatus Act, an 1878 law that largely prohibits the use of military forces for domestic law enforcement. Stephen Miller reportedly believes that the Insurrection Act nonetheless gives the president power to deploy the military on domestic soil in times of turmoil.

Although no precedent exists for the use of the military to supplement federal enforcement of immigration laws, the courts may be convinced that record numbers of illegal immigrants can be considered “insurgents” or as presenting “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States”, or that drug cartels can be considered “enemy aliens”; expect a lot of references to invasion by violent foreign gangs like Tren de Aragua in that connection.

It is also likely that the Trump administration will characterize its immigration enforcement as stopping the importation of fentanyl or other illegal drugs into the United States and thereby seek to invoke a 1981 federal law that permits military cooperation with civilian law enforcement officials in drug enforcement. Its case may be strengthened in that context by the success of its first term immigration crackdown in reducing the rate of growth in drug deaths in America.

Internal Enforcement

Trump has promised to implement “the largest domestic deportation operation in American history” in this second term, and the GOP’s 2024 platform states that the party will “deport the millions of illegal Migrants who Joe Biden has deliberately encouraged to invade our Country”.

Although seemingly radical, this is a policy that used to enjoy bipartisan support. As the late Barbara Jordan – Democrat congresswoman, and then-chairwoman of the U.S. Commission on Immigration Reform – explained to Congress in 1995: “Deportation is crucial. Credibility in immigration policy can be summed up in one sentence: those who should get in, get in; those who should be kept out, are kept out; and those who should not be here will be required to leave. . . . For the system to be credible, people have to be deported at the end of the process.”

She is correct, of course. Immigration law is pointless if people who enter illegally aren’t deported, and in the absence of such interior enforcement, illegal crossings at the border will only climb. Mass deportations would also benefit American workers by raising wages and improving job conditions.

Is such a plan practicable though? More than its critics will admit.

Logistically, any deportation program will likely start with the approximately 1.3 million aliens under final orders of removal and the hundreds of thousands of criminal immigrants at large. The much-preferred way of apprehending them is for ICE officers to coordinate with state law enforcement and take custody of individuals being held in jails or police custody. This currently happens in red states through cooperative agreements under INA §287(g), which authorizes local law enforcement to perform some immigration enforcement duties.

If taking custody of illegal immigrants from state police detention is the preferred method for apprehending them, arresting persons where they reside is the most expensive option and has the worst optics. Rather than arrests at residences, then, expect a surge in workplace raids, as well as sweeps in public settings and Employment Eligibility Verification investigations to target noncriminal aliens who are not under removal orders but have nonetheless entered the country illegally. This approach, which Trump also ramped up during his first term, aims to increase the visibility of immigration laws in everyday settings with a particular focus on industries known to frequently employ unauthorized workers, thereby deterring illegal employment and encouraging self-deportation.

To carry out any such arrest and removal plans, the Trump administration will need to bolster the ranks of ICE officers. This could, reportedly, take the form of reassigning law enforcement officers from other federal agencies, enlisting state National Guard troops, deputizing local police officers, and perhaps even using the military.

Federal law prevents states and local governments from prohibiting or restricting the “sending to, or receiving from [ICE] information regarding the citizenship or immigration status, lawful or unlawful, of any individual”. Nonetheless, the political backlash to Trump’s first-term enforcement efforts saw several states, cities, and localities stop coordinating with ICE and formally declare themselves sanctuaries. We can expect more such resistance from blue jurisdictions during this administration, although perhaps not as universally; NYC mayor Eric Adams has already made some conciliatory noises about cooperating with the Feds in this area. Where non-co-operation is an issue, we’re likely to see Trump’s team play hardball by denying Federal Emergency Management Agency (FEMA) grants to states and cities that refuse cooperation with ICE and federal loans to schools that allow in-state tuition to illegals.

Assuming the Trump administration is able to muster the necessary forces to conduct this huge enforcement effort, to locate and arrest large numbers of illegal aliens, and to overcome sanctuary jurisdiction resistance, it will also need a lot more detention space. Only 38,000 beds are currently being used to hold those awaiting deportation. During the first Trump administration, that number increased to over 50,000. While it is possible that the government could rent more beds in county jails, that would still leave it well short of the number needed to deport the millions envisioned by Tom Homan, Trump’s new border czar. To achieve that goal, the incoming administration is proposing the construction of vast new detention camps to hold illegals awaiting deportation, which the campaign says will enable faster processing and removal. This effort will also likely include the military. To fund these efforts, Trump would probably redirect money in the military budget, as he did toward border wall construction when Congress failed to authorize it.

So, the logistical challenges to mass deportation are large but probably superable for a sufficiently determined administration. But what if nations of origin refuse to issue the travel documents required to send their citizens back? After all, the Supreme Court has held that, with only narrow exceptions, even detained criminals due to be deported must be released after six months absent a “significant likelihood of removal in the reasonably foreseeable future”.

Fortunately, obtaining travel papers from such countries is unlikely to be an intractable problem. Under section 243(d) of the Immigration and Nationality Act (INA), once DHS notifies the State Department that a foreign country “denies or unreasonably delays” the return of its nationals, the secretary of state must “order consular officers in that foreign country to discontinue granting immigrant visas or nonimmigrant visas, or both”, to nationals of that country. In his first term, Trump made much wider use of this power than his predecessors, and it delivered results. Coupled with the threat of tariffs on their exports and taxes on remittances, the prospect of slow-walking visas should be sufficient to bring most countries into line when it comes to taking back deportees.

How might mass deportations fare in court? The Trump campaign emphasized that its plans are permitted by existing legal frameworks and would not require any new legislation, and this seems plausible.

One of the easiest steps Trump can take is to change the enforcement priorities that guide Immigration and Customs Enforcement (ICE). Biden’s Civil Immigration Enforcement Priorities “prioritize the apprehension and removal of noncitizens who pose a threat to national security, public safety, or border security from the United States”. These include suspected terrorists, dangerous criminals, and recent unlawful entrants. In contrast, Trump will return to the priorities that existed during his first administration, which targeted everyone who lacked lawful immigration status. This would be very hard to legally contest: after Texas and Louisiana brought a case challenging Biden’s narrow enforcement priorities, the Supreme Court held that the states lacked standing to bring suit as Article II of the Constitution grants broad authority to the Executive to decide “how to prioritize and how aggressively to pursue legal actions against defendants who violate the law”. Anybody challenging Trump’s broader enforcement priorities would fall at the same hurdle.

The new President can also end the Biden administration’s use of prosecutorial discretion in immigration court with a simple memorandum issued by DHS. This will mean prosecutors in immigration courts – which are part of the Department of Justice, not the judicial branch – will no longer agree to dismiss removal cases. The first Trump administration also limited the ability of immigration judges and Board of Immigration Appeals members to close or terminate removal proceedings and its successor is likely to do so again, although this will involve going through a notice-and-comment rulemaking period first.

The administration will also make extensive use of the “expedited removals” process, which is a 1996 law that allow for rapid deportations without the usual legal hearings. In July 2019, the Trump administration applied expedited removal to include illegal immigrants present anywhere in the country for up to two years after their entry, which is the full extent of the statute, a decision that was subsequently upheld by the DC Circuit appellate court as falling within the DHS Secretary’s discretion.

Another legal option to force voluntary returns would be to rely on E-Verify, an online system employers can use to confirm that would-be employees are legally permitted to work in the U.S. Participation in the system is largely voluntary at present (22 states require some employers to use it), but the president could likely mandate universal E-Verify compliance by executive order. If those who are here unlawfully are unable to work, many will leave of their own accord.

So, Trump’s team is likely to have the legal powers it needs in order to push through mass deportations without new legislation. But how will they play out politically? Polls currently show majority public support for this policy, and the President Elect earned a clear mandate for it in the election. For his supporters, the pledge is totemic; like pardoning political prisoners, delivering on it is especially important because it will set the tone for whether he can be trusted to deliver all his other promises.

From his party’s perspective, the deportations should begin immediately so that the economic and social benefits can be reaped as soon as possible. Once voters notice their rents decreasing, their wages rising, and their neighborhoods becoming safer, they will be happy with their choice; if the deportations start late, however, there is a risk that the opposition will be able to complain about the costly optics in the run up to 2026 and 2028 without these offsetting benefits being in play.