SAN DIEGO (AP) — Donald Trump has long promised to deport millions of people, but he is now providing more details in his current bid for the White House: invoking war powers, relying on like-minded governors and deploying the military.
Trump’s record as president exposes a vast gulf 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 Homeland Security Department. Former President Barack Obama carried out 432,000 deportations in 2013, the highest annual total since records began.
Deportations under Trump have never topped 350,000. But he and his chief architect of immigration policy, Stephen Miller, have given hints in interviews and meetings that they might take a different approach if they return to office in November. They could benefit from lessons learned during their four years in office and, potentially, from more judges appointed by Trump.
“What Trump seems to be considering 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 many legal barriers. It’s going to be logistically extremely complicated and difficult. The military’s not going to like doing it and they’re going to wait as long as they can, but it’s possible, so it has to be taken seriously.”
Asked how the Trump campaign would carry out its pledge, the Trump campaign said it would launch the largest deportation program in U.S. history, without going into details. Karoline Leavitt, a spokeswoman, said Trump would “mobilize all federal and state resources necessary to conduct the largest deportation operation of illegal criminals, drug dealers and human traffickers.”
How would Trump overcome the inevitable legal challenges?
Trump has said he would invoke the Alien Enemies Act, a 1798 law that allows the president to deport anyone who is not a U.S. citizen from a country with which the U.S. is at war.
Texas Governor Greg Abbott has floated a theory that illegal immigration amounts to invasion, seeking to justify the state’s enforcement efforts, but so far it has failed. But legal scholars say judges are reluctant to rule on what a president considers foreign aggression.
The Alien Enemies Act’s sweeping authority could circumvent a law that prohibits the military from civil law enforcement.
Trump has said he would focus on deploying the National Guard, which can be activated at the behest of a governor. Miller says troops under sympathetic Republican governors would send troops to nearby states that refuse to participate.
“The Alabama National Guard is going to arrest illegal aliens in Alabama and the Virginia National Guard is going to arrest illegal aliens in Virginia. And if you go to an unfriendly state like Maryland, well, Virginia would be making the arrest in Maryland, very close, very close,” Miller said last year on “The Charlie Kirk Show.”
The military has been involved in a peripheral role at the border since the George W. Bush administration, performing activities not considered law enforcement, such as surveillance, vehicle maintenance and installing razor wire.
Nunn, of New York University’s Brennan Center, said Trump may be looking to 2020, when he ordered the National Guard to disperse peaceful Black Lives Matter protests near the White House despite the mayor’s opposition. Trump did so without invoking the 18th century war powers law, but the federal status of the District of Columbia gives the president excessive authority to act.
Trump also could run afoul of rights granted under immigration laws and court rulings that took shape after 1798, including the right to seek asylum that became law in 1980. Under a 2001 Supreme Court ruling, people in the country illegally cannot be detained indefinitely if there is no reasonable prospect of their countries taking them back. Cuba, Venezuela, Nicaragua and other countries have been slow to accept or reject their citizens.
How would Trump pay for this?
U.S. Immigration and Customs Enforcement is being funded by Congress this year for 41,500 detention beds, raising questions about where Trump would house people before they board deportation flights and how long they could hold them if countries refuse to take them back. Miller floated the idea of “large-scale staging grounds near the border, probably in Texas.”
ICE agents are meticulous, checking the backgrounds of their targets and prioritizing those with criminal records. They try to arrest suspects outside their homes, because they generally operate without a warrant and people don’t have to let them in.
A single arrest can require hours of surveillance and investigation, a task one ICE official compared to watching paint dry.
“On a practical level, it will be virtually impossible for (Trump) to do the things he’s talking about, even if he could deploy the military,” said John Sandweg, a senior official at the Department of Homeland Security in the Obama administration.
Obama’s deportation numbers were made possible by local police turning people over to ICE, but many state and local governments have since implemented restrictions on cooperation with federal immigration authorities. Obama’s presidency was also preceded by a surge of asylum seekers at the border that stretched the limited resources of the Trump and Biden administrations.
How would a mass deportation affect political direction?
While many support Trump’s plans, mass deportations could tear families apart, exacerbate labor shortages and uproot people with deep ties to their communities. Pew Research Center estimates that 70% of households with at least one person in the United States illegally also have someone in the country legally.
Nunn said military leaders are likely to resist, saying it would undermine other priorities and damage morale.
“The military will see this and say this is not the kind of duty that soldiers signed up for,” he said. “This is involving the military in domestic politics in a way that the military doesn’t like to do.”
Adam Goodman, an associate professor of history and Latin American studies at the University of Illinois, Chicago, who has written about deportations, said the threat of mass deportations could have a serious impact even if it doesn’t happen. He thinks it’s highly unlikely Trump can do what he promises, but it could instill fear in immigrant communities.
In June 2019, Trump announced that ICE would “begin the process of removing millions of illegal aliens” the following week. A month later, the agency said it had targeted about 2,100 people, resulting in 35 arrests, indicating that the president’s plans fell far short, but only after they had raised widespread concerns in immigrant communities.
