President-Elect Donald Trump placed “the border” at the center of his re-election campaign, pledging “mass deportation.” At least 11 million people are living in the United States in violation of our immigration laws. Many of us have argued that there’s no feasible way to deport all of them and that any attempt to do so would be at a horrific humanitarian cost.
We’re about to find out the administration’s actual policies and how much support he can get for them in a Republican-majority Congress.
WSJ (“Trump Advisers Ramp Up Work on Mass Deportation Push“):
Advisers to President-elect Donald Trump are drawing up plans to carry out his mass deportation pledge, including discussing how to pay for it and weighing a national emergency declaration that would allow the incoming administration to repurpose military assets to detain and remove migrants.
The behind-the-scenes discussions, which started months before the election and have picked up in the days since Trump’s victory, include policy changes required to increase deportations, according to people working on the presidential transition, members of Congress and others close to the president-elect.
Among the changes: revoking a Biden administration policy directing U.S. Immigration and Customs Enforcement not to pursue immigrants in the country illegally who haven’t committed other crimes, and making changes to the immigration court system to speed up cases. Trump’s allies have said they are planning first to focus on immigrants in the country illegally who have received final orders of deportation from an immigration court, of which there are about 1.3 million, as well as those with other criminal convictions or charges.
That’s still an enormous number of people, but also the least controversial subset to target. The former have already received due process and the latter will surely evoke the least sympathy.
As a first step, Trump’s advisers are discussing issuing a national emergency declaration at the border on his first day in office, which his team thinks would allow him to move money from the Pentagon to pay for wall construction and to assist with immigrant detention and deportation. But the legality of such a move is unclear. A national emergency, Trump’s advisers think, also would unlock the ability to use military bases for immigrant detention and military planes to help carry out deportations.
Trump has a more competent set of advisors this time than he had in 2016 (which, granted, is a low bar). It’s quite possible that they have actually researched the legality of these moved and believe they have a plausible case to make that the President would have this power.
Still, I’m skeptical. If Presidents can simply take appropriated funds and repurpose them as they see fit by declaring “an emergency,” then Congress’ primary Constitutional authority—the power of the purse—is meaningless. While Congressional Republicans have proven themselves spineless in the face of pressure from Trump, I’d think they would be resistant to taking large sums from the Defense budget for what amounts to domestic law enforcement. Similarly, while the Roberts Court has issued some shocking pro-Trump rulings, allowing the President to arrogate to himself powers clearly delegated to the Congress would seem a bridge too far.
A critical near-term priority is finding the money to pay for it. An estimate by the American Immigration Council, a liberal immigration group, estimated that an operation to deport the total number of people living in the U.S. illegally could cost $968 billion over more than a decade, or roughly $88 billion a year.
Any deportation effort requires enormous resources to hire more federal agents to identify and arrest immigrants, contract out space to detain them and procure airplanes to fly them to other countries.
Trump has played down the projected cost of his plan. “It’s not a question of a price tag. It’s not—really, we have no choice,” he told NBC News this week, “when people have killed and murdered, when drug lords have destroyed countries, and now they’re going to go back to those countries because they’re not staying here.”
While estimates from a group devoted to opposing this plan should naturally be taken with a large pinch of salt, it’s certainly true that this plan would be logistically challenging and quite expensive.
Officials from Trump’s first administration have also written draft executive orders to resume construction of the border wall and revise President Biden’s existing restrictions on asylum at the southern border to remove the humanitarian exemptions. They are planning to enter aggressive negotiations with Mexico to revive the Remain in Mexico policy, a person working on Trump’s transition said, and are identifying potential safe third countries where asylum seekers could be sent.
They also want to revoke deportation protections from millions of immigrants who have either been granted a form of humanitarian protection known as temporary protected status—which covers hundreds of thousands of Haitians and Venezuelans—or entered the country on a quasi-legal status called humanitarian parole. That population includes millions who have entered via government appointments at the southern border, as well as tens of thousands of Afghans evacuated after the fall of Kabul and hundreds of thousands of Ukrainians allowed into the U.S. following the Russian invasion.
Rep. Chip Roy (R., Texas), an anti-illegal-immigration hard-liner, said he thinks the Trump administration should disregard those deportation protections because, in his view, they were issued illegally.
“I believe we need to push the boundaries and claim they’ve got no status,” he said.
Here, I haven’t the foggiest what the courts will do. The overwhelming number of those claiming asylum are gaming the system, as they rather clearly don’t qualify for the exceedingly narrow provisions of the applicable law. But there is, in fact, applicable law—including international treaties ratified by the Senate—that would seem to require at least some modicum of due process to ensure that we don’t deport legitimate claimants. That the system is being gamed is extremely frustrating, but I don’t see how we can simply ignore the law.
Rather than forcibly deporting all migrants, Trump’s advisers hope they can induce some to leave voluntarily, according to people familiar with the matter. They have discussed offering immigrants in the country illegally—or those who entered on parole through Biden administration programs—a chance to leave the country without penalties, so they can return on a visa if they are eligible. Under normal circumstances, when someone is deported, they are barred from returning on a visa for 10 years.
This seems like a no-brainer. But it would also be logistically challenging. Assuming these folks believed the promise rather than assuming it was a trick to get them to turn themselves in, there would still be a processing requirement.
Republican lawmakers, buoyed by their election gains, are planning to use a process called reconciliation to advance legislation that funds Trump’s immigration proposals alongside his energy and tax priorities. Under the arcane rules of reconciliation, legislation can be approved with a simple majority vote, rather than the 60 votes usually required to advance most bills in the Senate, as long as the changes made are primarily budgetary rather than policy shifts.
Republicans have already taken back control of the Senate, and they are poised to keep control of the House. With majorities in both chambers, they could move the reconciliation measure without support from Democrats.
House Majority Leader Steve Scalise (R., La.) said in a letter circulated to Republican lawmakers this week that reconciliation legislation would “surge resources to the southern border to build the Trump Border Wall, acquire new detection technologies, bolster our Border Patrol, and stop the flow of illegal immigration.”
Given the centrality of this issue to the Republican campaign strategy, I take it as a given that this will pass in some form—likely with a modicum of Democratic support.
To avoid adding to the federal deficit, some members of Congress have also floated tacking new fees onto different steps of the immigration process, such as applying for asylum or even appearing in immigration court, that would help pay for deportations. The U.S. immigration system is already largely funded by fees for citizenship and visa applications, though humanitarian programs—and court proceedings—are free.
This strikes me as fantasy, akin to Mexico paying for the wall. Even if it were legal to charge asylum-seekers a fee, most of these people have little or no money. That’s why they’re here.
Trump struggled during his first term to deport large numbers of migrants, particularly those living in blue states that cut off cooperation with the federal government. In addition to a huge infusion of cash, mass deportations would require unprecedented coordination among federal, state and local officials.
This is unlikely to change in the second term.
Reuters (“Inside Trump’s plan for mass deportations – and who wants to stop him“) adds:
While the incoming Trump administration could benefit from experience gained during his first term, it could again encounter resistance from ideologically opposed government employees, including officers that screen migrants for asylum.
The American Civil Liberties Union and immigrant advocacy groups have been preparing for court battles if Trump again tests the bounds of his legal authority.
Lee Gelernt, an ACLU attorney who led the fight against Trump’s contentious family separation policy, said more than 15 lawyers focused on immigration with the organization’s national office spent the year readying for the possibility of a Trump return.
“We definitely need to be coordinated and have more resources, because I think they will come in much more prepared,” Gelernt said.
The State Department in particular could be one place where Trump acts more aggressively than during his first term, several Trump backers said.
A key factor will be whether other countries will accept their citizens, an issue Trump faced with limited success during his first term. The Trump administration also struggled at times to convince other nations in the region – including Mexico – to take steps to stop migrants from moving toward the U.S.-Mexico border.
Ken Cuccinelli, former acting deputy secretary of the U.S. Department of Homeland Security under Trump, said the State Department was a “roadblock” for immigration enforcement and that aggressive appointees will be key.
Christopher Landau, a former U.S. ambassador to Mexico from 2019-2021, recently said he was frustrated with the reluctance of some U.S. diplomats to tackle immigration enforcement.
“Nobody really thought that was their problem,” Landau said in an October panel discussion by the Center for Immigration Studies, which favors restricting immigration.
Even if the Supreme Court ultimately goes along, we’re likely to see legal challenges gum up the works for much of the next two years, at which point Trump is likely—just based on historical trends—to have a less friendly Congress. And, yes, one expects substantial resistance from some parts of the federal bureaucracy.
Trump has vowed to bring back his “Schedule F” plan to reclassify tens of thousands of civil servants into political appointees. It’s almost certainly not legal. Congress could go along but, presumably, Senate Democrats would staunchly oppose doing so. It would likely require ending the filibuster to make it happen.
