By Lauren Ferguson
The first few weeks of Trump’s presidency have been nothing short of eventful. So far, President Trump has signed over twenty-one executive actions related to immigration, covering deportation policies, the revocation of birthright citizenship, and more.[1] Over 1000 people were deported or repatriated on Trump’s fourth day in office,[2] and daily Immigration and Customs Enforcement (ICE) arrests are up by three times the average of last year.[3] Already, these policies have been heavily criticized for their potential illegality, civil rights violations, and harsh treatment of immigrants.[4] Although Trump promised to target immigrants who have committed serious crimes while on the campaign trail, Trump’s executive orders extend beyond this scope,[5] and the overbroad nature of his policies are indicative of racism and xenophobia.[6] This article will analyze the legal authority, or lack thereof, of Trump’s deportation policies, legal obstacles to his plans, and the effects they will have on migrant populations.
Trump’s Immigration Plan
Following proper procedure, the deportation process should entail legal arrests, removal proceedings before immigration judges which would include resolving any appeals, and then, if successful, the actual removal of the individual.[7] Regardless, “mass deportations” was one of the foundations of trump’s campaign and has become a “cornerstone of Trump’s immigration policy.”[8] The following executive orders and proclamations provide an overview of just how far-reaching the president’s policies are.
Protecting the American People Against Invasion:
Effective as of Jan 21, 2025, this executive order expanded the “expedited removal” process which allows undocumented migrants to be deported without a court hearing if they have been in the country for less than two years while placing the burden of proof on the migrant. [9] Once limited to areas within 100 miles of international borders, these removals can now occur anywhere in the country, including schools, hospitals, and churches.[10] It also requires all noncitizens to register with the government and provide their fingerprints making undocumented migrants targets for deportation and setting them up to violate the law by failing to register.[11] Last but not least, this order instructs the Office of Management and Budget not to provide undocumented immigrants with any public benefits, threatens to withhold federal funding from sanctuary jurisdictions, calls for the auditing and freezing of funds for any non-government organizations that assist undocumented immigrants, and revokes all of Biden’s immigration policies.[12]
Guaranteeing the States Protection Against Invasion:
In this proclamation, the entry of migrants at the U.S./Mexico border has been suspended under provision 212(f) of the Immigration and Nationality Act.[13] Additionally, it prevents “aliens engaged in the invasion across the southern border” from claiming asylum.[14]
Declaring a National Emergency at the Southern Border of the United States:
In this proclamation, the president orders the Secretary of Defense to deploy as many members of the armed forces, including the National Guard, as necessary to gain and maintain control over the southern border. [15]
Securing our borders:
This executive order reinstates the “Remain in Mexico” policy which requires migrants at the southern border to wait in Mexico for their asylum claims to be resolved. [16] Furthermore, it eliminates the CBP One app used for making asylum appointments at ports of entry.[17] This coupled with the Remain in Mexico policy strands many migrants waiting to enter legally.[18]
Designating Cartels and Other Organizations as Foreign Terrorist Organizations:
This executive order calls for a process to be developed in identifying and labeling particular cartels as “foreign terrorist organizations”.[19] Specifically, federal agencies have fourteen days to recommend which organizations should be given this status.[20] Trump also reserves the right to invoke the Alien Enemies Act on suspected members of Mexican cartels living in the U.S. even if doing so legally.[21]
Protecting the Meaning and Value of American Citizenship:
This order announced that, after February 19, 2025, the federal government would no longer acknowledge the U.S. citizenship of babies born to undocumented mothers or mothers with temporary status where the father is also not a citizen or green card holder. [22] The order instructs agencies not to issue documents recognizing citizenship, such as Social Security cards and U.S. passports, to children born in the country to undocumented immigrants or to accept these documents if issued by state or local governments.[23]
Legal authority
Now that we know more about Trump’s plan, we must ask whether the president actually has the legal authority to carry it out.
Mass deportations:
There are a couple obscure laws that Trump may seek to invoke if his executive orders are not upheld in court:
Trump could use the 1798 Alien Enemies Act[24] as his authoritative basis for implementing his deportation plan. This statute would allow for the removal of individuals, not naturalized, who are seen as part of an “invasion or predatory incursion.”[25] However, further guidance is needed on what exactly an invasion entails within the meaning of the law.[26] While this Act may be better applied to migrants convicted of serious crimes or involved in transnational criminal organizations, Lee Gelernt, a senior attorney at the American Civil Liberties Union urges the president to see that the migrants who come to this country seeking refuge or asylum “do not constitute an invasion by a foreign government within the meaning of the law.”[27] Thus, there is room for litigation to ensue over the meaning of that phrase. Additionally, this Act was last used to justify internment camps during World War II, and in fact, due to the plain language of the statute,[28] has never been invoked outside of wartime.[29] This is also likely to be the basis of legal challenges so that there isn’t a precedent established for using the law in this way.[30] Democrats in congress have already reintroduced a bill to repeal this Act.[31]
Regarding deployment of military personnel on American soil, this action is generally barred by the Posse Comitatus Act for civilian law enforcement unless Congress authorizes such use.[32] However, there are some exceptions to this rule. Trump’s response to this roadblock includes use of the Insurrection Act[33] which is “an amalgamation of laws that lets presidents use the military to help civilian authorities when they get overwhelmed by unrest.”[34] Unfortunately, this law hasn’t been meaningfully updated in over 150 years which leaves the door open for an abuse of power, and courts have historically been deferential to the President during previous use of this Act.[35] Thus, if successful, this could have wide reaching consequences that allow the military to be used in civilian affairs beyond the immigration context.[36]
Birthright Citizenship:
Birthright citizenship is a right guaranteed by the 14th amendment of the U.S. Constitution and applies regardless of the legal status of one’s parents.[37] Trump argues that his power to end birthright citizenship comes from the phrase “subject to the jurisdiction thereof” within the 14th amendment, suggesting that when a child is born on U.S. soil to undocumented parents, they are not subject to U.S. jurisdiction.[38] However, in Plyler v. Doe, the Supreme court rejected this argument and ruled that immigrants are both subject to U.S. laws and enjoy the protections they provide.[39] Thus, the only way to overcome this obstacle would be to amend the constitution, a process requiring a 2/3 vote in both congressional chambers and 3/4 of the states’ approval.
Legal challenges and pushback
The ACLU and New York Civil Liberties Union have already sued the Trump administration over the expedited removal program for violating the 5th amendment due process clause, the Administrative Procedure Act,[40] and the Immigration and Nationality Act.[41] The ACLU has also filed a lawsuit protesting the closure of the CBP One app and the birthright citizenship revocation.[42] Additionally, Trump’s plans invite litigation based on violations of the 4th[43] and 14th amendments.[44] Furthermore, external factors such as Congress’s control on federal funding,[45] the backlog of immigration courts,[46] insufficient numbers of law enforcement officers,[47] and the cost of deportation[48] could impact Trump’s plans.
Conclusion Trump espouses that an aggressive immigration policy is necessary because undocumented migrants impose significant costs on state and local governments, take jobs, burden taxpayers, and are a threat to public safety.[49] However, most immigrants aren’t criminals, as Trump suggests, but are taxpayers and business owners[50] that have come to America for the promise of a better life. Many also have minor children who are citizens from whom they may be separated. They also support the economy by contributing to consumer demand and working in industries that often experience labor shortages.[51] Furthermore, studies find that immigrants are less likely to commit crimes than U.S. citizens.[52] It suffices to say that all Trump’s policies do is subject migrants to “racial profiling, suspicionless interrogations and arrests, unjustified and pretextual traffic stops, and warrantless searches of workplaces and homes.”[53] It is clear the costs outweigh the benefits. Thus, it is imperative that the judiciary remain nonpartisan and uphold the rule of law in order to disrupt this abhorrent violation o
[1] Nadine Yousif, Six Big Immigration Changes Under Trump – and Their Impact So Far, BBC (Jan. 27, 2025), https://www.bbc.com/news/articles/clyn2p8x2eyo.
[2] Id.
[3] Ted Hesson and Kristina Cooke, Trump plans to invoke obscure 18th century wartime law in bid for mass deportations, Reuters (Feb. 3, 2025, 11:30 AM), https://www.reuters.com/world/us/trump-plans-invoke-obscure-18th-century-wartime-law-bid-mass-deportations-2025-02-03/.
[4] Yousif, supra note 1 (“[Colombia’s] president, Gustavo Petro, said that ‘the US can’t treat Colombian migrants like criminals’ and that they need to be ‘treated with dignity’.”)
[5] Am. Immigration Council, After Day One: A High-Level Analysis of Trump’s First Executive Actions 3 (2025).
[6] Am. Civ. Liberties Union, Trump on Immigration 1–2 (2024) (statements of President Donald Trump) (“They’re poisoning the blood of our country.”) (‘No, they’re not humans, they’re not humans, they’re animals’) (“They’re rough people, in many cases from jails, prisons, from mental institutions, insane asylums.).
[7] See Am. Immigration Council, The Removal System of the United States: An Overview (2022).
[8] Yousif, supra note 1.
[9] Exec. Order No. 14,159, Protecting the American People Against Invasion, 90 Fed. Reg. 8443, 8445 (Jan. 29, 2025).
[10] Yousif, supra note 1.
[11] Protecting the American People Against Invasion, 90 Fed. Reg. at 8444; Am. Immigration Council supra note 5.
[12] Protecting the American People Against Invasion, 90 Fed. Reg. at 8446–47
[13] Guaranteeing the State Protection Against Invasion, Proclamation No. 10888, 90 Fed. Reg. 8333, 8335 (Jan. 29, 2025).
[14] Id.
[15] Declaring a National Emergency at the Southern Border of the United States, Proclamation No. 10886, 90 Fed. Reg. 8327, 8328 (Jan. 20, 2025).
[16] Exec. Order No. 14,165, Securing Our Borders, 90 Fed. Reg. 8467, 8468 (Jan. 20, 2025).
[17] Id.
[18] Am. Immigration Council supra note 5, at 4.
[19] Exec. Order No. 14,157, Designating Cartels and Other Organizations as Foreign Terrorist Organizations, 90 Fed. Reg. 8439 (Jan. 20, 2025).
[20] Id. at 8440.
[21] Id.
[22] Exec. Order No. 14,160, Protecting the Meaning and Value of American Citizenship, 90 Fed. Reg. 8449, 8449 (Jan. 20, 2025).
[23] Id.
[24] Alien Enemies Act, 50 U.S.C. §21 (1798).
[25] Id.
[26] Am. Immigration Council supra note 5, at 5.
[27] Hesson, supra note 3.
[28] 50 U.S.C. §21 (“Whenever there is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government. . .”).
[29] Hesson, supra note 3.
[30] Id.
[31] A bill to repeal the Alien Enemies Act, S.193, 119th Cong. (2025).
[32] Am. Civ. Liberties Union, supra note 6 at 8; See Use of Army, Navy, Marine Corps, Air Force, and Space Force as posse comitatus, 18 U.S.C. §1385 (1956).
[33] See Insurrection Act of 1807, 10 U.S.C. §251–55.
[34] Am. Civ. Liberties Union, supra note 6 at 8; Michael Waldman, Trump’s Mass Deportation Plans, Brennan Center for Justice (Nov. 19, 2024), https://www.brennancenter.org/our-work/analysis-opinion/trumps-mass-deportation-plans.
[35] Id.
[36] Am. Civ. Liberties Union, supra note 6 at 8.
[37] U.S. Const. amend. XIV, §1 (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”).
[38] Protecting the Meaning and Value of American Citizenship, 90 Fed. Reg. at 8449.
[39] See Plyler v. Doe, 457 US 202, 210 (1982).
[40] Administrative Procedure Act, 5 U.S.C. §706.
[41] Immigration and Nationality Act, 8 U.S.C. §1158 (2009) (“[a]ny alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section.”); Am. Civ. Liberties Union, Immigrants’ Rights Advocates Sue Trump Administration Over Fast-Track Deportation Policy, ACLU (Jan. 22, 2025), https://www.aclu.org/press-releases/immigrants-rights-advocates-sue-trump-administration-over-fast-track-deportation-policy (The complaint can be found here: https://www.aclu.org/cases/make-the-road-new-york-v-benjamine-huffman?document=Complaint).
[42] See Am. Civ. Liberties Union, Immigrants’ Rights Advocates Sue Trump Administration Over Efforts to Completely Shut Down Asylum at the Border, ACLU (Feb. 3, 2025), https://www.aclu.org/press-releases/immigrants-rights-advocates-sue-trump-administration-over-efforts-to-completely-shut-down-asylum-at-the-border; Am. Civ. Liberties Union, Immigrants’ Rights Advocates Sue Trump Administration Over Birthright Citizenship Executive Order, ACLU (Jan. 20, 2025), https://www.aclu.org/press-releases/immigrants-rights-advocates-sue-trump-administration-over-birthright-citizenship-executive-order.
[43] U.S. Const. amend. IV (The right of the people to be secure in their persons. . . against unreasonable searches and seizures, shall not be violated. . .).
[44] U.S. Const. amend. XIV, §1 (No State shall make or enforce any law which shall. . .deny to any person within its jurisdiction the equal protection of the laws.).
[45] Am. Civ. Liberties Union, supra note 6 at 3, 8 (discussing how Congress can use the power of the purse to prevent Trump from having the funding or condition the necessary funding to carry out mass deportations and detentions).
[46] Hesson, supra note 3 (explaining how the 3.6 million immigration cases currently in existence will slow the deportation process given the limitations on expedited removal).
[47] Am. Civ. Liberties Union, supra note 6 at 4–5 (explaining that the Department of Homeland Security’s 66,000 law enforcement officers combined with the agents employed by Immigration and Customs Enforcement will be insufficient to carry out Trump’s plans at his desired scale.)
[48] Christian Hetrick, Could Trump Actually Enforce ‘Mass Deportations’ of migrants?, USCPrice (Oct. 17, 2024), https://priceschool.usc.edu/news/trump-mass-deportation-immigrants-deport-migrants-border-wall/ (explaining that it costs on average $13,000 to deport one person which is $143 billion for 11 million undocumented migrants).
[49] FACT SHEET: President Donald J. Trump Protects the States and the American People by Closing the Border to Illegals via Proclamation, 2025 Daily Comp. Pres. Doc (Jan 22. 2025).
[50] Hetrick, supra note 48.
[51] Id.
[52] Am. Civ. Liberties Union, supra note 6 at 10.
[53] Id. at 6.
