As of January 27th, President Donald Trump has signed 21 executive orders in what can be called a complete overhaul of the existing immigration system in order to fulfil his campaign promises of mass deportations and to “repel, repatriate, and remove illegal aliens involved in an invasion of the United States through the southern border.” However, some of these changes, mostly made through a record number of Executive Orders, challenge well established constitutional rights and open the administration to a slew of legal battles that have already begun. The implications of these legal battles could represent an unprecedented change to the legal fabric of the United States and mark the new Trump era as defined by it’s uncertain, contentious, and constantly shifting legal reality.
Expansion of ICE’s power and vulnerability to lawsuits: expedited removals and rescission of ‘protected spaces’
The expansion of ICE jurisdiction to complete expedited deportations from within 100 miles (160 km) to anywhere within the US, coupled with the rescission of Biden’s ‘protected spaces’ protocol applying to churches, schools, and hospitals has provoked mass deportation raids in major cities like Miami, Newark, and Chicago. Chicago mayor Brandon Johnson has denounced the raids, saying that Chicago police were not involved, while Newark Mayor Ras Baraka has stated that “people are being unlawfully terrorised,” claiming that ICE detained undocumented residents without a warrant during a raid on a local business, violating the unlawful search and seizure clause of the 4th amendment.
Baraka’s claims, if true, indicate an ICE so emboldened by the expansion of their jurisdictional and legal power that entire raids are conducted without warrants, in broad daylight in major cities. But this move, however shocking, is simply another escalation in a long saga of ICE’s constitutional violations.
ICE has been plagued by lawsuits bringing accusations of entrapment and constitutional rights violations in recent years, some of them successful, such as Gonzalez v ICE (2020), and some still awaiting judgement, such as Americans for Immigrant Justice, et al., v U.S. Dept. of Homeland Security, et al.,
ICE tactics have consistently toed the line between legality and entrapment: the organization has been known to use a ruse of pretending to have a lost ID, identity theft, and even pretending to be regular police requesting information about an ongoing criminal investigation in order to lure individuals out of their houses. In one instance, ICE created an elaborate fake university, the ‘University of Farmington,’ to attract international students through fake F-1 Visa programs. The ‘sting operation’ culminated the arrests of hundreds, and resulted in yet another ongoing lawsuit.
Despite already being embroiled in constitutional lawsuits like those mentioned above, ICE’s actions in Newark indicate a continuation of the organization’s tendency to tread on constitutional rights. Given their vastly expanded jurisdictional domain, it’s likely these constitutional infractions will begin to occur on an unprecedented scale, leaving ICE, as well as the new Trump administration, vulnerable to any number of constitutional lawsuits.
Suspension of all legal asylum pathways through the INA
In an executive order signed on the 22nd, the White House invoked the 212F provision of the Immigration and Nationality Act, as well as Article II, as the basis for a complete shutdown of all legal entry at the southern border – including cancelling the 30,000 existing appointments through the CBP one app.
While the invocation of Article II vaguely alludes to the constitutional definition of the powers of the executive branch, section 212F of the Immigration and Nationality Act, passed in 1952, outlines the president’s power to “suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate…for such a period he shall deem necessary.” This provision is the same one former President Biden invoked to justify shutting down the southern border in June 2024, as well as President Trump in his first term as the basis of a ‘Muslim Ban.’
However, the apparent finality of the executive order sealing the border would violate section 208 of the INA, which does lay the framework for a static legal right to claim asylum: “Any alien who is present in the United States or who arrives in the United States (whether or not in a designated port of arrival […]) irrespective of such alien’s status, may apply for asylum.”
It is on these grounds that the ACLU and Make the Road New York have filed a lawsuit, contending as well a violation of the Fifth Amendment’s due process clause and the Administrative Procedure Act.
Designation of cartel members as terrorists: the Alien Enemies Act of 1798 and the ‘due process’ clause
In another executive order, this time invoking section 219 of the INA, the Trump administration has designated cartels and ‘transnational organizations’ like Tren de Aragua and La Mara Salvatrucha as “an unusual and extraordinary threat to national security,” that even threaten “the stability of the international order in the Western Hemisphere.”
Section 219 of the INA does authorize the Secretary of State to designate foreign organizations as terrorists under the definition the Act provides in section 1182.
Criticism for this executive order has arisen from Trump’s campaign promise to invoke the Alien Enemies Act of 1798, a 226 year old piece of legislation invoked only three times – most infamously to justify Japanese internment camps during WWII – and always in the context of a following declaration of war by Congress. Because the law allows for an administration to hasten deportation by bypassing immigration courts, it would hasten the mass deportations Trump promised vastly. But the Alien Enemies Act brings a host of issues: the implications of its use during peacetime are untrodden legal territory and could prompt a judicial review case. Further, the Act espouses that a “predatory incursion” by a “foreign nation or government” must have occurred in order to for it to be invoked. Illegal immigration doesn’t fit that criterion, so it’s invocation could be interpreted as an allegation that cartel violence and illegal immigration are state sanctioned by those respective governments. Legal experts have opined that arguing a case for illegal immigration and cartel activity as fitting the definition of an invasion would be an “uphill climb in federal court.”
The invocation of the Alien Enemies Act also has due process implications. Those deported or incarcerated under it lose the right to automatic judicial review, or the ‘due process’ that allows for a presumption of innocence and procedural protection through an appointed attorney and a chance to prove innocence. Organizations like the ACLU and the Brennan Centre for Justice have vowed to fight this attempt to “bypass all of that due process and make it easier to arrest and deport people.”
However, the court could simply defer to the president authority to designate what or what isn’t a national security threat, making any constitutional and legal objections to the invocation of the Alien Enemies Act irrelevant.
A challenge to the 14th Amendment: a redefinition of Presidential authority?
Possibly the most open challenge to the Constitution so far has been to revoke birth right citizenship for those whose mother or father unlawfully reside in the United States, or who have a temporary legal status.
The reasoning behind the change to the 14th Amendment draws on an argument that the Amendment has been misapplied in relation to its intention, which was to enshrine the citizenship of former slaves in post-Civil War America: “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.” The Trump Administration contends that those in the US illegally are “not subject to the jurisdiction thereof” outlined because “the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born in the United States.”
But a new interpretation of the letter of the law isn’t the problem – the problem lies in whether a President can change the Constitution simply through an executive order, which can be made at will and require no input from Congress. The process of amending the Constitution has previously required 2/3 support from both branches of Congress. An executive order issuing a change to the Constitution is an unprecedented and supposedly illegal act, which is why, as of January 24th, 22 states, as well as the District of Columbia, have legally challenged the order. The judge who issued a temporary restraining order on the new policy asserted that it is “blatantly unconstitutional.”
In response, the Department of Justice has stated that it will “vigorously defend” the President’s new executive order. On which side the Supreme Court will err on, or if they will even take up the case, remains to be seen. That said, a direct challenge to not only the constitution but how power is distributed within the US government has been made and its outcome could redefine and dramatically increase presidential power.
Image by Tony Webster via Wikimedia Commons