SAN DIEGO (AP) — Donald Trump has long pledged to deport millions of people, but he is bringing more specifics to his current White House bid: invoking wartime powers, relying on like-minded governors and using the military.
Trump’s record as president shows a vast chasm between his ambitions and the legal, fiscal and political realities of mass deportations of people in the United States illegally — 11 million as of January 2022, according to the latest estimate from the Department of Homeland Security. Former President Barack Obama carried out 432,000 deportations in 2013, the highest annual total since records began.
Under Trump, deportations never topped 350,000. But he and his chief immigration architect, Stephen Miller, have suggested in interviews and at rallies that they would take a different approach if they were returned to office in November. They could draw on the lessons learned from their four years in office and, potentially, Trump’s appointment of more judges.
“What Trump seems to be contemplating is potentially legal,” said Joseph Nunn, an attorney at the Brennan Center for Justice at New York University School of Law. “There may not be a lot of legal hurdles. It’s going to be extremely complicated and logistically difficult. The military is not going to like doing it and they’re going to drag their feet as much as they can, but it’s possible, so it has to be taken seriously.”
Asked how his promise would be implemented, Trump’s campaign said Trump would launch the largest deportation program in U.S. history, without elaborating. Karoline Leavitt, a spokeswoman, said Trump would “mobilize all federal and state powers necessary to mount the largest deportation operation of illegal criminals, drug dealers and human traffickers.”
How would Trump overcome the inevitable legal challenges?
Trump said he would invoke the Alien Enemies Act, a 1798 law that allows the president to expel any non-citizen from a country with which the United States is at war.
Texas Governor Greg Abbott has put forward a theory that illegal immigration amounts to an invasion to justify state law enforcement actions, so far unsuccessfully, but legal scholars say judges may be reluctant to second-guess what a president considers foreign aggression.
The Alien Enemies Act’s broad authority could circumvent a law that prohibits the military from enforcing civilian law.
Trump said It would focus on deploying the National Guard, whose troops can be activated at the order of a governor. Miller says troops under sympathetic Republican governors would send troops to neighboring states that refuse to participate.
“The Alabama National Guard is going to arrest illegal immigrants in Alabama and the Virginia National Guard is going to arrest illegal immigrants in Virginia. And if you go into a hostile state like Maryland, well, only Virginia is going to make the arrest in Maryland, right there, right there,” Miller said last year on “The Charlie Kirk Show.”
The army has been peripherally involved at the border since the administration of President George W. Bush, with activities that are not considered law enforcement, such as surveillance, vehicle maintenance and the installation of concertina wire.
Nunn, of New York University’s Brennan Center, said Trump could look to 2020, when he ordered the National Guard to break up peaceful Black Lives Matter protests near the White House despite the mayor’s opposition. Trump did so without invoking the 18th-century War Powers Act, but the District of Columbia’s federal status gives the president excessive authority to act.
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Trump could also run afoul of rights guaranteed by immigration law and court decisions made after 1798, including the right to seek asylum, which took effect in 1980. Under a 2001 Supreme Court decision, people in the United States illegally cannot be detained indefinitely if there is no reasonable chance their country will take them back. Cuba, Venezuela, Nicaragua and other countries have been slow to accept or refuse to accept their citizens.
How could Trump pay for this?
Immigration and Customs Enforcement is funded by Congress for 41,500 detention spaces this year, raising questions about where Trump might house people before they board deportation flights and how long they might be held if countries refuse to take them back. Miller floated the idea of “large-scale staging bases near the border, most likely in Texas.”
ICE agents are very meticulous, they research their targets’ backgrounds and prioritize people with criminal convictions. They try to stop suspects in front of their homes because they usually work without a warrant and people don’t have to let them in.
A single arrest can require hours of surveillance and searching, work that a single ICE agent can do. it’s like watching paint dry.
“As a practical matter, it will be almost impossible for (Trump) to do the things he’s talking about, even if he could call in the military,” said John Sandweg, a senior Homeland Security official in the Obama administration.
Barack Obama’s deportation numbers were made possible by local police turning people over to ICE, but many states and local governments have since introduced limits on cooperation with federal immigration authorities. Obama’s presidency also preceded a surge of asylum seekers at the border that stretched the limited resources of both the Trump and Biden administrations.
How could a mass deportation have a political impact?
While many support Trump’s plans, mass deportations could tear families apart, worsen labor shortages and uproot people who are deeply connected to their communities. The Pew Research Center estimates that 70 percent of households with at least one person in the United States illegally also have someone in the country legally.
Military leaders are likely to resist because it would undermine other priorities and damage morale, Nunn said.
“The military is going to look at this and say this is not the kind of mission the soldiers signed up for,” he said. “It involves the military in domestic politics in a way they don’t like to do.”
Adam Goodman, an associate professor of history and Latin American studies at the University of Illinois at Chicago who has written about deportations, said a threat of mass deportation can have serious consequences even if it is not carried out. He thinks it is highly unlikely that Trump will be able to follow through on his promises, but it could instill fear in immigrant communities.
In June 2019, Trump announced that ICE would “begin the process of deporting millions of illegal immigrants” the following week. A month later, the agency said it had targeted about 2,100 people, resulting in 35 arrests, indicating The President’s plans fall far short of the mark but only after sparking widespread concern among immigrant communities.
