President-elect Donald Trump has said he will use the military to carry out mass deportations — a centerpiece of his immigration agenda in his second term. He did not go into detail about his plans, but legal experts have suggested he may be able to rely on a combination of federal law to implement deportations with military support. The idea of a president deploying the military domestically may sound like a nightmare scenario, but it’s not unreasonable given his broad executive powers.
On Monday, Trump responded to a post on his social media network Truth Social claiming that he would “declare a national emergency and use military resources” to carry out mass deportations, which were “True!!!“
It’s not immediately clear what he means by that: he wants to enforce the country’s immigration laws for the military, redirect military funds to support mass deportations, or something else. A representative for his transition team did not respond to a request for comment.
But Trump has a few ways he can activate the military and its resources. These include the Sedition Act, which gives the president the power to deploy military forces domestically; emergency powers, such as redirecting funds to military construction projects; and other presidential powers such as requesting National Guard assistance in conducting military missions.
Immigration lawyers prepare to challenge mass deportations. Anthony De Romero, executive director of the American Civil Liberties Union, Trump said this on Monday after the announcement That his organization is preparing for the case.
However, the law gives presidents significant leeway to use military discretion, and courts have historically been wary of overstepping, though they can intervene if immigrants’ civil liberties are violated.
Chris Mirasola, a professor at the University of Houston Law Center, said the United States “has a very permissive legal system about how the president can use the military.” Again, those powers are not absolute. “There are some downstream implementation issues that I think are more susceptible to litigation,” Mirasola said.
Mutiny Act, Briefly Explained
The New York Times reported that Trump is planning Invoking the Sedition Act Bring in the military to carry out mass deportations. The law is a key exception to the Posse Comitatus Act, which prohibits the military from enforcing federal law without authorization from Congress or the Constitution.
Only in rare cases have presidents invoked sedition laws. President George HW Bush was the last person in the 1992 Los Angeles riots that erupted in response to the acquittal of police officers in the beating of Rodney King. President Dwight D. Eisenhower also notably used the Sedition Act to facilitate the desegregation of schools in Little Rock, Arkansas.
A provision of the Sedition Act that Trump may apply to is a provision that allows the president to unilaterally activate the military to enforce federal law whenever they determine that “unlawful obstruction, assembly, or assembly, or insurrection…makes it ineffective.” [to do so] by the ordinary course of judicial proceedings.”
Mirasola said Trump would have a “relatively easy time” making the case that cartels smuggling migrants across the border constitute an “unlawful obstacle” to US immigration enforcement. Trump in some ways appeared to begin making his case for invoking the Sedition Act through his speeches on the campaign trail this year, describing a “Criminal attackComing across the border.
But Mirasola said it would be more difficult for Trump to argue that enforcing immigration laws through “the ordinary course of judicial proceedings” is unreasonable. That’s because presidents have done it for decades, and border crossings are no longer unusually high: they have There has been a sharp decline this year And even the first Trump administration fell below certain points.
However, the law gives the president “sole discretion in most cases” to determine whether the criteria necessary to activate the military have been met, according to 2022 congressional testimony from Elizabeth Goetin, co-director of the Independence and National Security Program. Brennan Center for Justice, and Joseph Nunn, the Center’s consultant on national security programs.
Goettin and Nunn also argued that “the vague and broad criteria for invoking the Act, combined with the lack of any provision for judicial or congressional review, make it ripe for abuse.” At the time, they were concerned that Trump could use the Sedition Act to interfere with the certification of the 2020 election results. The use cases are different now, but the potential for overreach is the same.
That is, lawyers can challenge Trump on whether two key criteria for applying the law are met, the law giving presidents a wide berth — and courts little power.
“For all practical purposes, courts are excluded from the process,” Goitein and Nunn wrote.
Emergency and other powers of the President
There are other possible authorities that Trump could invoke to increase military resources in his mass deportation plan.
As Mirasol Wrote in LawfareTrump has non-emergency powers under federal law to request assistance from state National Guardsmen in federal military missions. Under the National Defense Authorization Act, that mission could be to assist US Customs and Border Protection in “ongoing efforts to secure the southern land border.” The law does not provide parameters limiting the type of assistance the military can provide, whether boots on the ground at the border or intelligence analysis support.
Emergency powers can be helpful in building the infrastructure needed for mass evacuations. Stephen Miller, one of Trump’s top immigration advisers, told the New York Times in November 2023 That the second Trump administration would build “comprehensive holding facilities that would serve as staging centers” for immigrants facing deportation. Mirasola wrote that, to do so, Trump could invoke federal legislation that allows the defense secretary to “undertake military construction projects … not otherwise authorized by law that are necessary to support the armed forces in a national emergency.”
If Trump declares a national emergency on immigration, that legislation would essentially allow him to bypass the need for congressional approval to get the funding needed to build these holding facilities. He previously used the same legislation to try to get funding for his border wall during his first term. Whether he can do so is never settled.
Pro-immigration advocates have challenged the use of that law to fund Border wall in Trump’s first term. They were not expected to win their years-long lawsuit over the border wall when President Joe Biden took office if the issue went before the Supreme Court. Advocates may again mount a legal challenge, but they may only succeed in delaying construction of the facility.
However, pro-immigration advocates may have a stronger case if they file a lawsuit for the conditions of these still-to-be-constructed holding facilities and the potential violation of civil liberties of immigrants subject to mass deportation. These may involve, for example, violations of their constitutional right to due process. This kind of challenge, on top of the inhumane detention conditions CBP facilities appear first (including lack of access to basic hygiene products and lack of food, water and basic medical care) was successfully done during the first Trump administration.
Immigrants can also file lawsuits arguing that their constitutional protections against illegal searches have been violated: Doris Meissner, senior fellow and director of the U.S. Immigration Policy Program at the Migration Policy Institute, said the scale of mass deportations Trump envisions would likely involve “personnel violations.” Civil rights, profiling, all these kinds of harms that come with poor policing.”
That will present a key test for the court, Michael Waldman, president and CEO of NYU School of Law’s Brennan Center for Justice, said in a statement: ” [the courts] Use their power to enforce lasting protection for individuals? Will they maintain the rule of law? Or will they bow to political pressure and allow the executive to expand its already considerable powers?
