If President Donald Trump’s 1-day executive order on immigration and deportation goes through, he will succeed in radically changing US law. However, this is a strong “if.”
His agenda on Monday was a mix of new and familiar policies: In the next section, Trump revived several measures from his first administration, including forcing asylum seekers to wait in Mexico for decisions on US immigration cases, implementing “extreme vetting.” Immigrants are coming to the US, and agents are cracking down on “sanctuary cities” and states that refuse to cooperate with federal immigration.
He began implementing several of his 2024 campaign promises, including establishing a framework through which he wants to manage mass deportations, consolidating the military at the border and rolling back Biden-era programs that granted temporary protection to tens of thousands of immigrants. And he has made a longstanding commitment to sign an executive order that would potentially end birthright citizenship — in the unlikely event it faces a court challenge.
Some of these executive orders, such as those contained in the so-called Mexico Policy, have already been tested in court during Trump’s first administration or are clearly within his powers as president. The category includes revoking his predecessor’s executive orders or agency policy guidance on immigration, such as Biden’s directive to prioritize violent criminals and recent arrivals to immigration enforcement. Trump’s other actions appear patently illegal; and the ACLU 18 State Attorneys General has already challenged the order terminating his birthright citizenship, which legal experts have long argued is patently unconstitutional.
The survival of other new policies, particularly around deportation, may depend on how they are actually implemented. As the new executive order takes effect, legal advocates will be looking at ways those policies may violate immigrants’ constitutional rights and existing federal immigration and national security laws.
According to Doris Meissner, director of immigration policy work at the Migration Policy Institute, “There’s more sophistication, I think it’s fair to say, in the way they [Trump administration officials] It’s taking away,” compared to Trump’s hasty first-term executive orders.
In short, we’re in for months or even years of legal wrangling — and the outcome of that fight will determine the reach of Trump’s immigration overhaul.
What Trump’s Immigration Executive Order Really Does
Trump made immigration a centerpiece of his 2024 campaign following a record-high number of crossings at the US-Mexico border early in the Biden administration. when Border crossings have reduced significantlyy After former President Joe Biden enacted executive orders limiting asylum access last year, Trump nevertheless signed the executive order on the first day of what he described as an immigrant “assault” and set the stage for a large-scale deportation campaign.
Trump has tried to keep out and remove both documented and undocumented immigrants in a number of ways:
- In addition to reintroducing the “stay in Mexico” policy, he declared a national emergency on the border, barred entry to any noncitizens who might spread an unnamed “infectious disease of public health concern,” and prohibited them from claiming their rights. to remain in the United States under its asylum laws.
- He ordered a rollback of Biden-era parole and temporary protected status protections that allow people from countries including Cuba, Haiti, Nicaragua and Venezuela to live and work in the United States.
- He laid the groundwork for reinstating the policy of “extreme vetting” of legal immigrants from his first term, with heightened scrutiny at the agency level for visa applications across the board.
- He will suspend admissions of US refugees for at least 90 days, starting on January 27.
- He left the door open to future travel bans and agreements with other countries that would require asylum seekers to first apply for protection there.
- He cleared the way for the Department of Defense to deploy military forces to the southern border (though exactly what powers remain unclear) and ordered construction of the border wall to resume.
Trump’s executive order prioritizes deporting criminals (especially members of drug cartels or international criminal gangs that he now designates as foreign terrorist organizations), but they do not promise to spare other undocumented immigrants. He is reportedly planning to order an immigration crackdown on major cities in the first week of his new administration, though One such campaign in Chicago Leaks may be postponed following.
To achieve his promised mass deportation agenda, Trump’s executive orders expand immigration detention powers, require cooperation with local law enforcement, expand the use of fast-track deportations, penalize sanctuary cities and states, and impose sanctions on countries unwilling to accept them. their own citizens as exiles.
Finally, and perhaps most controversially, he issued an executive order on February 19 to try to end birthright citizenship, which would affect children born to an undocumented mother on a temporary visa in the United States or to a mother in the United States if their father also lacked citizenship. or permanent residency status.
How Courts Could Limit Trump’s Ambitions on Immigration
During Trump’s first term, the courts acted as a check on his efforts to unilaterally reshape immigration through executive orders, regularly issuing nationwide blocks on his policies that often delayed if not ultimately destroyed them.
This time, Trump’s policy is also likely to be challenged in court. A group of former Biden-Harris officials, in cooperation with the legal firm Democracy Forward, is preparing to file a lawsuit against them. Trump’s initial executive order. The ACLU and other legal organizations have also started Flood the new Trump administration including litigation.
However, what stands out in Trump’s second term is the makeup of the court. Trump appoints conservative judges to the Supreme Court and other federal appeals the court In his first term, and he may now find a more favorable legal environment to implement his immigration policies.
Trump officials appear to have learned from their mistakes, experts noted, and are unlikely to rush ahead without the necessary justifications at the agency — such as travel bans on citizens of certain countries that Trump pursued in his first term. level
Kathleen Bush-Joseph, a policy analyst at the Migration Policy Institute, said, “I think it’s time for the Trump administration to study some of the harm they’ve done in terms of how they’ve crafted these orders. can keep.” Nonpartisan think tank focused on immigration. “They’re trying to follow past decisions and put things forward that they think might stand up in court.”
As president, Trump has significant discretion over federal immigration policy, and he has already tested the limits of that authority in his first term. For example, his “stay in Mexico” policy, a revised version of his 2017 travel ban targeting Muslim-majority countries, and his efforts to expand “expedited removal” — a process by which immigrants can be deported quickly and without a hearing in an immigration judge — All have survived legal scrutiny the first time and will likely again.
Many of Biden’s immigration policies could have been — and in fact, already are — undone by executive orders. These include implementing Biden’s immigration enforcement priorities and the CBP One app that allowed immigrants to sign up for appointments at the border where they were processed and often allowed to cross. Monday, Migrants have seen their appointments cancelled.
However, according to legal experts, there are elements of Trump’s executive order that appear to be clearly illegal or at least deeply questionable. That includes ending birthright citizenship, which most legal experts argue would require a constitutional amendment that lacks sufficient support in Congress.
In another executive order, Trump also laid the groundwork for the invitation Alien Enemy ActA 1798 act passed as part of the Alien and Sedition Act allowed the president to detain and deport non-citizens from countries at war with the United States. It was last used during World War II to hold civilians of Japanese, German and Italian descent. Despite Trump’s rhetoric about aggression and his decision to designate cartels and international criminal gangs as terrorist organizations, however, the United States is not at war and experts say Trump likely lacks the legal standing to use the law to deport immigrants.
“Most experts believe that calling [the Alien Enemies Act] A declared war is needed, and only Congress can declare war,” said Muzaffar Chishti, a senior fellow at the Migration Policy Institute and director of the think tank Office at New York University School of Law. “Whether it’s a war or an aggression is going to be subject to litigation, and there’s good law against the president on that.”
However, some of Trump’s executive orders may occupy a legal gray area until we learn more about how they will be implemented or how they may infringe on individual rights. This includes his deployment of troops along the southern border.
There is a long precedent for military support operations along the border by providing infrastructure and logistics, but U.S. troops do not directly interact with migrants. An increased presence at the border, particularly of active duty service members rather than National Guard troops, could violate federal law. These include the Pos Comitas Act, which prohibits the military from enforcing federal laws without authorization from Congress or the Constitution.
Such legal questions could be resolved only after lengthy litigation, potentially delaying some key parts of Trump’s immigration agenda, if not sinking entirely. But the Trump administration also appeared more sanguine on Monday about wanting to protect the court order than it did in 2017 — and it’s an open question how far Trump’s unilateral immigration agenda will go with a more lenient court system.
