Now that Donald Trump has secured the Republican nomination, won federal court rulings making it extremely unlikely he will be disqualified from seeking office, and apparently established that even a felony conviction will not torpedo his campaign, the time has truly come for a careful analysis of his campaign’s immigration policy proposals. Immigrants’ rights advocates have already started that process, but much more remains to be done, and even those not immersed in immigrants’ rights work will find clues for how a second Trump administration would approach much of its agenda by carefully examining its immigration plans.
Trump and his surrogates have already gone on the record detailing his immigration proposals. In a lengthy article in the New York Times, followed by similar pieces in various other outlets, the Trump campaign and its surrogates — most prominently former White House Domestic Policy Counsel Advisor Stephen Miller — laid out an agenda even more virulently anti-immigrant than the one they pursued with great vigor starting in 2017. In addition, the Trump-adjacent Heritage Foundation has published a “playbook” with various immigration policy proposals for a second Trump administration. Most helpfully, Trump himself has repeatedly expounded on his immigration agenda while on the campaign trail.
The plans articulated so far are a mix of new and old ideas. They would transform how the United States deals with people already living in the country — both lawfully and unlawfully — and also remake the policy governing people coming to the country, both directly from abroad and at the border. Some highlights include: ending the protection from deportation that several million people have had for years through the Deferred Action for Childhood Arrivals (DACA) and Temporary Protected Status (TPS) programs; a mass detention and deportation campaign targeting every undocumented person in the country (of which there are approximately 11 million) explicitly modeled on a program from the 1950s that was known, literally, as “Operation Wetback“; using the “Alien Enemy Act” to jail and deport with virtually no due process people the government would label as gang members; an expanded version of the Muslim Ban (similar to the original version, but now extended to several more Muslim-majority countries, along with separate bans for people supportive of Palestinian rights); ordering federal agencies to stop recognizing birthright citizenship for the children of undocumented immigrants; and ending all asylum processing at the border using public health as a justification (as was done during the pandemic under Title 42, but this time for far less serious diseases). The Heritage playbook includes still more ideas, such as various schemes to punish state governments that provide equal access to educational opportunities, driver’s licenses, and other programs to undocumented people; and proposals to coerce states into cooperating with federal immigration enforcement efforts.
Of course, that Trump wants to enact all these horrific policies does not mean he will succeed. He and others in his administration had similar plans in 2017, but many of their most ambitious dreams were stymied because the courts struck them down. One might well expect Trump to fare better today, with a federal judiciary — and in particular a Supreme Court — stacked with his nominees. But, notwithstanding recent election-related rulings in his favor, Trump’s federal judicial appointments have not proven slavishly devoted to him in every case, as his across-the-board failure to overturn the results of the 2020 election showed. The quality of the arguments available to Trump’s lawyers will surely matter at least some of the time.
While a comprehensive legal analysis of all the new Trump proposals is beyond the scope of this post, I will focus here on those relating to the treatment of people already living in the United States, and in particular on three of them: his promise to end the TPS program, his plan to engage in mass detention and deportation modeled on Operation Wetback, and his idea to support that program through the use of the Alien Enemy Act. I have chosen these three because they reflect broader patterns in Trump’s agenda: each would be enormously consequential, directly attacking at least several hundred thousand long-time residents of the United States; each would exploit pre-existing weaknesses in the immigration enforcement regime that render it susceptible to actors interested in undermining the rule of law; and each would sow fear throughout immigrant communities, even if it does not “succeed” in accomplishing its stated draconian aims.[1]
Temporary Protected Status
The Temporary Protected Status program currently provides immigration status and work authorization to approximately 700,000 people from 16 countries, many of whom have lived in the United States for decades. Although less well-known than DACA, TPS currently protects more people. According to recent estimates, there are now less than 600,000 DACA holders, but nearly 700,000 TPS holders.
Through the TPS program, Congress has given the Secretary of Homeland Security discretion to protect people in the United States from deportation if their home countries are unsafe to accept their return. The statute provides virtually unfettered discretion to the DHS Secretary when deciding whether to designate a country for TPS in the first place — there is no requirement to designate a country, even if it faces extreme crisis — but it does not afford the same level of discretion when it comes time to decide whether to extend a country’s TPS status. Instead, the statute requires DHS to assess the safety of conditions on the ground and provides that TPS “is extended” when the country remains unsafe.
The Trump administration was extremely hostile to TPS. It attempted to effectively end the program over the course of a few months in 2017 and 2018 by trying to terminate the TPS status of more than 95 percent of the people who had it when Trump came to power — about 400,000 people from six countries, most of whom have lived in the United States for decades. But in multiple lawsuits filed around the country, including one in which I served as counsel for the plaintiffs, courts repeatedly found the termination decisions unlawful. They pointed to various statements showing that the Trump administration had pursued a “predetermined outcome” rather than an objective assessment of country conditions, as the statute requires. (It didn’t help that Trump referred to TPS holders as “people from shithole countries” in an infamous meeting where he rejected a bipartisan proposal to grant them permanent residency.) Only one court — a 2-1 panel of Ninth Circuit judges — ruled in the Trump Administration’s favor, but even that declined to find that the termination decisions complied with administrative law, holding instead only that the courts lacked jurisdiction to review them. It was also clearly wrong and was wiped from the books by the full Ninth Circuit, which took the unusual step of reversing the decision en banc.
As a result, Trump’s attempt to end the TPS program was a total failure. Literally every person who had TPS in 2016 remains eligible for it today, after the Biden administration essentially abandoned any defense of the Trump-era terminations last summer.
In contrast, the Biden administration has used TPS protection quite aggressively. Although it has thus far steadfastly refused to take the most generous option available to it — extending TPS protection to at least 1.5 million people from the Central American countries of El Salvador, Honduras, Nicaragua, and Guatemala (even though the case for new TPS protections for those countries appears compelling) — it has protected 700,000 other people, including recent arrivals from several new countries as well as Central Americans who held TPS previously.
Trump’s surrogates have made clear that Trump hopes to strip all of these TPS holders of their status, much as his administration attempted to do last time. In the New York Times interview with “several Trump advisers,” including Miller, to whom the campaign itself referred questions, the Times summarized their plans: “People who were granted temporary protected status because they are from certain countries deemed unsafe, allowing them to lawfully live and work in the United States, would have that status revoked.” Similarly, the Heritage Playbook states, without explanation, that all the TPS designations should be ended.
However, those plans would no doubt again face strong opposition, in part because of the statements the campaign has already made. As noted above, the TPS statute requires any future DHS Secretary to objectively assess country conditions in each of them before deciding whether to terminate TPS. Trump’s surrogates seem to have already pre-judged those assessments. Courts struck down the TPS terminations last time in part for precisely that reason, condemning them as “pre-ordained.”
There is, however, no guarantee that courts would reach the same conclusion again. And, in the interim, one can be certain that any set of decisions that quickly terminates the immigration status (and employment authorization) of several hundred thousand people would generate massive fear and disruption — which may well be the point.
Mass Detention and Deportation
If the several hundred thousand people who currently hold TPS were to lose it, most of them would then become subject to deportation, joining the ranks of approximately 11 million people already living in the United States without status, most for more than a decade. The Trump campaign has promised to jail and deport these individuals en masse by conducting widespread raids and then building mass detention camps for them while they await deportation. To do this, Trump’s surrogates say that his administration would abandon “the ICE practice of arresting specific people” to instead carry out general raids and sweeps intended to arrest “scores of unauthorized immigrants at once.” The Heritage Playbook elaborates on this idea, explaining that it would involve the revival of so-called “Blackie’s warrants,” a practice immigration enforcement agents used several decades ago, in which agents arrested people en masse in worksite immigration enforcement operations.
Such practices would presumably result in the arrest of many undocumented immigrants with strong claims to stay in the United States, as well as many unlawful arrests of citizens and lawfully-present noncitizens. The cases of such individuals would likely often take time to resolve, thus preventing the speedy mass deportations the Trump team so fervently desires. In response, Miller and his team propose to “solve” that problem by building “vast holding facilities” to jail people en masse in rural Texas. This could encourage some people with claims for relief to “give up and voluntarily accept removal without going through the full [due] process” afforded by governing law.
While that undoubtedly sounds very scary to those in immigrant communities — as no doubt intended — it is worth remembering the fate of Trump’s very similar plans from 2019. He announced plans to conduct large-scale immigration enforcement raids that summer, only to postpone them, then cancel them, and finally refuse to acknowledge that the massive raids never actually happened (suggesting instead that perhaps they had somehow occurred in secret). In fact, overall deportations actually decreased under Trump as compared to both of President Barack Obama’s terms, largely because Democratic-controlled states and localities adopted sanctuary policies that limited local law enforcement cooperation with federal immigration enforcement — policies begun under Obama that gained substantial momentum during the Trump administration.
Nonetheless, there is no guarantee that a second Trump administration would be quite that incompetent again, both because veteran Trump administration officials may have learned from their mistakes and because the new Trump regime may take steps to eliminate the kinds of internal bureaucratic resistance that occasionally stymied the first one. Nor is there any guarantee that Democratic-led states would resist so vigorously again. For these reasons, it behooves us to examine the legality of his mass deportation proposal in some detail.
There are several reasons to think the new Trump mass deportation plan would be legally vulnerable. First, while a federal appellate court upheld general warrants in immigration worksite enforcement actions (so-called Blackie’s warrants), it did so only as to “the fourth amendment rights of Blackie’s,” which was a restaurant. The case did not involve a challenge by noncitizens asserting their own Fourth Amendment rights. It was also decided before Congress made it a crime to knowingly hire undocumented people, and therefore relied on the premise that “[t]here are no sanctions of any kind, criminal or otherwise, imposed by law upon a knowing employer of illegal aliens.” Because there was no risk that the restaurant owners could face criminal liability for hiring undocumented people, the court found that a lower Fourth Amendment standard applied.
Whether or not Blackie’s warrants were ever lawful, they would be plainly illegal now if issued to authorize a program to conduct mass immigration arrests rather than “arresting specific people.” Such a plan would violate both governing immigration regulations and the Fourth Amendment, because the government generally has no authority to arrest people absent individualized suspicion.[2] As the Supreme Court decided three years after Blackie’s, immigration agents can engage in consensual questioning at worksites (or anywhere else), but when immigration agents give workers a “reason to believe” they could be arrested for refusing to answer questions about their immigration status, they violate the Fourth Amendment. Today it is hard to imagine a federal magistrate even issuing such warrants, given extant Fourth Amendment law in this area. Indeed, ICE had largely abandoned mass raids as a tactic well before the Trump administration because federal courts across the country repeatedly found it unlawful to detain immigrants, even briefly, without any individualized suspicion.[3]
Second, such a program could be vulnerable to challenge on race discrimination grounds — and that was true even before Trump started invoking Operation Wetback to explain it. (To be clear, Trump has not used the name “Operation Wetback,” but has referred to the program that was given that name.) There is of course no way to know someone’s immigration status merely by looking at them. For that reason, immigrants arrested in raids or during street-level encounters have occasionally succeeded in arguing, as a defense against deportation, that immigration enforcement agents unlawfully considered their race when deciding to arrest them. Immigrants probably could not challenge a mass arrest policy in advance on this basis, as the Supreme Court rejected a similar challenge to the Arizona “show me your papers” law a decade ago. But if the facts show the policy is being implemented in a way that involves racial profiling, people wrongfully arrested could respond either by raising the issue as a defense in their deportation cases or through civil rights lawsuits seeking damages against ICE officers.
Trump himself created fertile ground for such challenges with the mountain of racist statements he made during his first campaign and subsequent presidency. Because the Constitution prohibits state action motivated by racial animus, attorneys suing his administration used his statements to advance race-discrimination claims against the former administration’s policies. That strategy often worked. Lower courts cited his statements in enjoining the first two versions of the Muslim Ban, as well as in the TPS cases I and others successfully litigated (again and again and again). While the Supreme Court ultimately upheld the third version of the Muslim Ban, it did so based on its view that the policy was subject to extremely deferential judicial review for a constellation of reasons: it involved a national security policy, was enacted by a president acting pursuant to authority delegated from Congress, and excluded people not present in the United States. If any of those elements had not been present, the Court may well have been forced to actually look closely at the president’s statements.
Fast-forward to the current campaign, and Trump’s racist statements have continued. He has repeatedly said that immigrants are “poisoning the blood” of the country, compared them to snakes using a parable he repeated in his prior campaign, and specifically attacked Asian immigrants, including his own former Secretary of Transportation Elaine Chao. And, as noted above, he has compared his mass deportation plans to the infamous “Operation Wetback,” which involved the mass detention and deportation of bothMexican immigrants and American citizens of Mexican descent. While the Supreme Court found a way to ignore Trump’s explicitly racist statements in the Muslim Ban case, it is not at all clear the Court would be able to do the same in a case involving the arrest and deportation of people within the United States who cannot so easily be framed as threats to national security.
Third, a mass detention program designed to coerce people into giving up their claims could also suffer from a separate legal defect that might give rise to a more programmatic challenge. To be sure, federal courts have largely blessed the use of immigration prisons (so-called “detention centers”) for the last 40 years (though they did not exist for decades before then). However, courts have consistently permitted such incarceration for only two reasons: where necessary to ensure that immigrants appear for court and where needed for community safety. They have never permitted the government to imprison people simply to deter them from exercising their rights to defend themselves. Deterrence has long been recognized as a form of punishment, and punishment cannot be imposed without trial. For that reason, while courts (and in particular the Supreme Court) have tolerated extremely thin procedures for assessing flight risk and danger, where courts have found the government is using detention as a tool of deterrence or otherwise for punitive purposes, they have struck it down.
Advocates have already taken note of the campaign’s statement to the New York Times that the purpose of the Trump administration’s mass detention camps would be to deter people from exercising their rights. Their statements to that effect could be useful evidence for such a challenge.
One might respond to the various legal arguments I have just described by asking how people sent to mass detention camps in the southwestern desert will assert them, given that they may well never have access to the attorneys needed to file such challenges. That no doubt would be true in many if not all cases, and it speaks to one of the most troubling aspects of Trump’s plans. Even where their proposals are clearly illegal, Trump’s officials appear intent on designing them to foreclose the possibility of legal challenges. That task is easier than it should be because immigrants already have a very difficult time holding the immigration enforcement system accountable for its many abuses. Imprisoned immigrants have faced massive barriers to obtaining legal representation for years, and federal courts have long made it difficult for classes of immigrants to assert their legal rights.[4] Although immigrants’ rights advocates have done remarkable work to develop systems of legal support, particularly over the last decade, their ability to replicate such tactics in the future will be tested as never before should Trump have the opportunity to implement his new proposals.
The Alien Enemy Act
Finally, it bears mention that the Trump campaign has floated a truly novel way to “solve” some of the pesky constitutional problems posed above — by using the Alien Enemy Act. That rarely invoked law, which dates from the early days of the Republic and was last amended during the First World War, provides that:
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, and the President makes public proclamation of the event, all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward … shall be liable to be apprehended, restrained, secured, and removed as alien enemies [subject to regulations made by the President].
While one might imagine that the powers it outlines could only be invoked during an actual “declared war,” the Trump team apparently intends to invoke it “to expel suspected members of drug cartels and criminal gangs without due process.” Given the first Trump Administration’s practice of labeling many Central American youth as gang members without even probable cause, we have reason to believe they would use this new policy very broadly.
If the president could properly invoke the Alien Enemy Act, it might well provide an avenue to mass detention and deportation with virtually no process, thus foreclosing at least some of the challenges I have described above. The Supreme Court upheld such draconian summary action in Ludecke v. Watkins, which remains the only Supreme Court case analyzing the Alien Enemy Act in any detail. Ludecke authorized the extended detention and deportation of German nationals under that statute during and after World War II without requiring the government to show that those individuals presented any danger.
Perhaps more importantly for team Trump, Ludecke could be read to hold that what counts as a war for purposes of the Alien Enemy Act is a non-justiciable political question. Germany had unconditionally surrendered by the time the case reached the Court, so the petitioner, Kurt Ludecke, argued that the government’s authority to jail him under the statute had expired. But the Supreme Court rejected that argument, suggesting that the question whether the United States remained at war with Germany might be entirely non-justiciable. As the Court explained, issues concerning whether the war is actually over “are matters of political judgment for which judges have neither technical competence nor official responsibility.”
If the Court refused to second-guess the president’s judgment that the war against Germany had not ended even though Germany had surrendered, might it similarly refuse to second-guess a Trump proclamation of war against one or more drug cartels? While there is language in the opinion suggesting that whether a war is over is a political question (though other language in the opinion suggests the Court just refused to decide whether that question is justiciable, rather than deciding it is not), I do not think Ludecke could support the mass detention of, say, Salvadoran non-citizens in the United States based on a declaration of war against a Salvadoran drug cartel. The statute requires a declaration of war against “any foreign nation or government.” For obvious reasons, the United States (like every other nation, so far as I can tell) recognizes only one government per country at a time. Thus, while the question whether a declaration of war is legally valid may be non-justiciable, and the question whether the United States should have recognized one government rather than another is also probably non-justiciable (as the Supreme Court reaffirmed just a few years ago), nothing in either the Alien Enemy Act, Ludecke, or any other authority supports the notion that the president could recognize both the actual government of El Salvador and a cartel as the government of El Salvador at the same time. Such a move would likely be a bridge too far even for a Trump-friendly federal judiciary.
* * *
As I hope I have shown, we have much to gain from careful analysis of the Trump campaign’s immigration proposals. Existing law, the fate of Trump’s immigration policies from 2017-2020, and the campaign’s public statements to date all offer fertile ground for understanding the potential implications of a second Trump administration’s immigration agenda. Immigrants’ rights advocates have already begun to engage in close analysis of the kind done here to identify weaknesses in the Trump campaign’s legal proposals and plot strategies of resistance.
Beyond that, those interested in studying Trump’s agenda more broadly may find lessons that can be applied to other parts of Trump’s agenda. First, Trump and his surrogates are often far less concerned about whether their proposals are lawful than about whether they can be stopped. As a result, people interested in challenging the Trump agenda must focus not just on why Trump’s proposals are illegal, but also on how the targets of those proposals can be empowered to assert their rights, and which actors within our system will retain sufficient autonomy to take those assertions seriously.
Second, close analysis reveals that a primary purpose of many of Trump’s proposals (and certainly the purpose of publicly discussing them in a lengthy interview with the New York Times) is to sow fear in the hearts of those who seeks to antagonize—whether immigrant communities, his political enemies, or others he seeks to target. Here, it is worth recalling what a colleague of mine, UCLA Professor Kelly Lytle Hernández, has uncovered in researching the history of Operation Wetback itself: that it was “a PR campaign designed to terrorize people into self-deporting.” As she has shown, the government greatly inflated the number of people deported under that program precisely because doing so spread fear across immigrant communities — the fear itself was the point. That moment offers a final lesson for us today: that we can counteract Trump’s fearmongering by remaining measured as well as rigorous when we analyze his agenda.
[1] Though I don’t address them here, it should go without saying that other Trump campaign proposals—including his ideas for new exclusion bans, for dismantling the asylum processing system, and abrogating birthright citizenship—are also well worth detailed analysis.
[2] I was counsel for Mr. Perez Cruz in this case.
[3] See LaDuke v. Nelson, 762 F.2d 1318, 1328–1329 (9th Cir. 1985) (upholding a finding of seizure where access roads around migrant farm housing were sealed, individuals within housing units were surrounded, and those who tried to leave were seized); Oliva-Ramos v. Attorney General, 694 F.3d 259, 281–82 (3rd Cir. 2012) (finding that the petitioner should have an opportunity to raise Fourth Amendment claim where U.S. Immigration and Customs Enforcement (ICE) conducted a pre-dawn home raid); Cotzojay v. Holder, 725 F.3d 172, 178–79 (2nd Cir. 2013) (finding that petitioner established prima facie case that ICE unlawfully entered his home), Pretzantzin v. Holder, 736 F.3d 641,646 (2nd Cir. 2013) (”[W]e confirm what the [Board of Immigration Appeals] and other courts have already recognized: A nighttime, warrantless raid of a person’s home by government officials may, and frequently will, constitute an egregious violation of the Fourth Amendment requiring the application of the exclusionary rule in a civil deportation hearing.”); see also Zuniga-Perez v. Sessions, 897 F.3d 114, 125–26 (2nd Cir. 2018) (finding that petitioner established prima facie case that search was improper where U.S. Border Patrol agents searched house looking for ”known Hispanic migrants”).
[4] I was lead counsel in JEFM and one of the counsel in Aleman Gonzalez.