SAN DIEGO (AP) — Donald Trump has long said he plans to deport millions of people, but in his current fight for the White House, he is now taking a more concrete approach: invoking wartime powers, relying on like-minded governors and deploying the military.
Trump’s record as president shows a huge gap between his ambitions and the legal, financial and political reality of mass deportations of people living in the United States illegally – the Department of Homeland Security’s latest estimate was 11 million in January 2022. Former President Barack Obama carried out 432,000 deportations in 2013, the highest annual total on record.
Under Trump, no more than 350,000 people have been deported. But he and his chief immigration architect, Stephen Miller, have indicated in interviews and at rallies that they will take a different approach if re-elected in November. They could benefit from the experience they gained during their four years in office and possibly from Trump’s appointment of more judges.
“What Trump appears to be considering is potentially lawful,” said Joseph Nunn, a lawyer at the Brennan Center for Justice at New York University School of Law. “There may not be many legal obstacles. Logistically, it will be extraordinarily complicated and difficult. The military will not like it and they will delay it as long as possible, but it is possible, so it should be taken seriously.”
When asked how his promise will be implemented, the Trump campaign said Trump would launch the largest deportation program in U.S. history, but did not elaborate. Spokeswoman Karoline Leavitt said Trump would “use all necessary federal and state powers to launch the largest deportation operation of illegal criminals, drug dealers and human traffickers.”
How would Trump handle the inevitable legal challenges?
Trump has announced that he will invoke the Alien Enemies Act, a law dating back to 1798 that allows the president to deport all non-citizens of countries with which the United States is at war.
To justify federal enforcement actions, Texas Governor Greg Abbott has theorized that illegal immigration amounts to an invasion, but he has so far failed to do so. But legal scholars say judges may be unwilling to retrospectively judge what a president considers to be foreign aggression.
The sweeping authority of the Alien Enemies Act could circumvent a law that prohibits the military from exercising civilian law enforcement.
Trump has said he will focus on deploying the National Guard, whose troops can be activated on the orders of a governor. Miller says troops under sympathetic Republican governors would send troops to neighboring states that refuse to participate.
“The Alabama National Guard will arrest illegal immigrants in Alabama and the Virginia National Guard will arrest illegal immigrants in Virginia. And if you invade an unfriendly state like Maryland, Virginia will make the arrests in Maryland, close by,” Miller said on the “Charlie Kirk Show” last year.
Since the administration of President George W. Bush, the military has been only marginally involved in non-law enforcement activities at the border, such as surveillance, vehicle maintenance and laying barbed wire.
Nunn, of New York University’s Brennan Center, said Trump can look back to 2020 when he ordered the National Guard to break up peaceful Black Lives Matter protests near the White House, despite opposition from the mayor. Trump did so without invoking the 18th-century War Powers Act, but the District of Columbia’s federal status gives the president excessive powers to act.
Trump could also be grappling with rights granted to him by immigration law and court rulings that took shape after 1798, including the right to seek asylum, which was enshrined in law in 1980. Under a 2001 Supreme Court ruling, people living in the country illegally cannot be held indefinitely unless there is a reasonable chance their country will take them back. Cuba, Venezuela, Nicaragua and other countries are either reluctant to accept their citizens or refuse to accept them.
How would Trump pay for that?
U.S. Immigration and Customs Enforcement is receiving funding from Congress for 41,500 detention center beds, raising questions about where Trump would house people before they board deportation flights and how long they could be held if countries refuse to take them back. Miller floated the idea of ​​”large-scale collection points near the border, most likely in Texas.”
ICE officers are extremely careful, researching the backgrounds of their targets and prioritizing people with criminal records. They try to arrest suspects outside of their homes because they typically work without a warrant and people don’t have to let them into their homes.
A single arrest can require hours of surveillance and research, a job one ICE officer compared to watching paint desiccated.
“On a practical level, it will be nearly impossible for (Trump) to do the things he’s talking about, even if he could bring in the military,” said John Sandweg, a senior Department of Homeland Security official in the Obama administration.
Obama’s high number of deportations was possible because local police turned people over to ICE. However, many states and municipalities have since constrained cooperation with federal immigration authorities. Obama’s presidency also preceded a surge in asylum seekers at the border that exhausted the constrained resources of the Trump and Biden administrations.
What political consequences would a mass deportation have?
While many support Trump’s plans, mass deportations could tear families apart, exacerbate labor shortages and uproot people with deep ties to their communities. The Pew Research Center estimates that in 70 percent of households where at least one person is in the U.S. illegally, another person is also in the country legally.
Military leadership is likely to resist because it would interfere with other priorities and harm morale, Nunn said.
“The military will see this and say this is not the kind of service that soldiers signed up for,” he said. “It will get the military involved in domestic politics in a way that the military doesn’t like.”
Adam Goodman, an associate professor of history and Latin American studies at the University of Illinois at Chicago who has written about deportations, said the threat of mass expulsion could have sedate consequences even if it is not carried out. He thinks it is highly unlikely that Trump can keep his promises, but it could create fear in immigrant communities.
In June 2019, Trump announced that ICE would “begin deporting millions of illegal immigrants” the following week. A month later, the agency said it had targeted about 2,100 people and arrested 35, suggesting that the president’s plans fell far compact of expectations, but only after they sparked widespread concern in immigrant communities.
Trump himself acknowledged the political dangers in an interview with journalist Sharyl Attkisson on Sunday. “If you put the wrong person on a bus or a plane, your radical left-wing crazies will try to make it sound like it’s the worst thing that ever happened,” Trump said, before repeating his promise: “But we’re going to get the criminals out. And we’re going to do it fast.”
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Associated Press writer Nicholas Riccardi in Denver contributed to this report.
