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How Trump carved a pathway for his mass deportations through executive orders
A section of the U.S.-Mexico border wall near El Paso, Texas, on June 6, 2024. (Photo by Ariana Figueroa/States Newsroom)
WASHINGTON — Among the flurry of executive orders President Donald Trump signed on the first day he returned to the White House are five that lay out the use of military forces within the U.S. borders and extend other executive powers to speed up the president’s immigration crackdown.
The administration has engendered huge controversy in recent days by employing the orders and a presidential proclamation to use the Alien Enemies Act of 1798 to deport Venezuelan migrants. Administration officials described the Venezuelans as gang members, put them on flights and sent them to a huge prison in El Salvador.
The wartime Alien Enemies Act, used only three times before, allows the president to detain and deport anyone 14 and older who is a national from a country the United States deems an enemy.
Together, the interlocking executive orders and proclamation could provide the resources and legal footing needed for the Trump administration’s plans to deploy the military to deport and detain millions of people who are living in the United States without permanent legal status.
National security and military experts interviewed by States Newsroom raised concerns about this domestic deployment of armed forces that could result in violations of civil liberties, as well as the detainment and deportation of immigrants without due process.
Additionally, the broad actions by the executive branch would test the courts on what guardrails, if any, could be placed on the president. Trump earlier this week in a social media post called for the impeachment of the judge who questioned his use of the Alien Enemies Act in the case of the Venezuelans, bringing a stunning rebuke by Supreme Court Chief Justice John Roberts.
Besides the Alien Enemies Act, a second archaic law Trump is gearing up to invoke is the Insurrection Act of 1807. It gives the president the power to call on the military during an emergency to curb civilian unrest or enforce federal law in a crisis.
The Insurrection Act is also a statutory exception in the Posse Comitatus Act of 1878, which generally bars the use of the military for domestic law enforcement purposes.
Trump vowed to use both the Insurrection Act and the Alien Enemies Act while he campaigned for a second term.
“Invoking the Insurrection Act for immigration enforcement … would be unprecedented,” said Joseph Nunn, a counsel in the Brennan Center’s Liberty and National Security Program. “It would be an abuse, both because it’s not necessary, under the circumstances, and also because this is not what the Insurrection Act is for.”
Nonetheless, one Trump executive order directs the heads of the Department of Homeland Security and Department of Defense to issue a report by April 20 to the president with recommendations on whether or not to use the Insurrection Act to aid in mass deportations.
Orders woven together into an agenda
Trump’s five executive orders signed on Inauguration Day are:
The administration eyes its next moves while apprehensions at the southern border have plummeted to their lowest level in 25 years, with 8,347 encounters for February, according to U.S. Customs and Border Protection data.
The last time the Border Patrol averaged roughly 8,000 apprehensions per month in a fiscal year was in 1968, according to historical data obtained by the Texas Tribune.
In the executive order titled Securing our Borders, the Trump administration lays out its objectives for that U.S.-Mexico border, such as building barriers and barring migrants from entering the U.S. To carry that out, the president signed another executive order that declared a national emergency.
Chris Mirasola, a professor and national security expert at the University of Houston Law Center, said for roughly 20 years, there has been a military presence at the southern border assisting the U.S. Department of Homeland Security with immigration enforcement.
“What made the Trump executive orders interesting was the kind of escalation trajectory that they kind of mapped out for us,” Mirasola said, noting the likely use of the Insurrection Act and Alien Enemies Act.
Since Inauguration Day, that executive order has allowed Trump to send nearly 9,200 troops to the southern border.
Emory University School of Law professor Mark Nevitt, a national security expert who also served in the Navy, notes the executive order declaring a national emergency is limited to the geographic location of the U.S.-Mexico border.
“He’s not tasking (Homeland Security Secretary Kristi) Noem to come up with a nationwide immigration enforcement. Having said that, of course, he can change (his mind), he’s the president,” he said.
Sending military to the southern border stretches back to former President George W. Bush in 2006. Over a two-year period, more than 30,000 Army and Air National Guard personnel were sent to the southern border to assist with numerous migrants from Central America.
Northern Command
Continued coordination between Defense and Homeland Security is laid out in another of the executive orders, the one on “clarifying the military’s role,” that reorganizes the U.S. Northern Command to focus on border security.
Northern Command, established after the 9/11 terrorist attacks to coordinate military and homeland security support with civilian authorities, under the Trump executive order has a new mission “to seal the borders and maintain the sovereignty, territorial integrity, and security of the United States by repelling forms of invasion including unlawful mass migration, narcotics trafficking, human smuggling and trafficking, and other criminal activities.”
The legal underpinnings for Northern Command to carry this out, Mirasola said, are provisions in the Insurrection Act, which he adds is likely to face its own legal challenge.
“I kind of see this, perhaps surprisingly, long ramp up being a way for them to establish a factual record that they could use in litigation,” he said of the executive order that requests a report from DHS and DOD by April 20.
Trump does not need a report or recommendation to invoke the Insurrection Act. It is an existing presidential authority granting him access to use all federal military forces, more than 1 million members. But his executive orders would undergird his expected use of the act.
“I think it’s no surprise that he’s thinking about using the military for immigration enforcement,” Nevitt said of the president.
The request for a report by April 20, Nevitt said, could be “a way to set up the politics of declaring the Insurrection Act.”
Historically the Insurrection Act, which has only been invoked 30 times, is typically focused on an area of great civil unrest that has overwhelmed law enforcement, Nevitt said.
The last time the Insurrection Act was invoked was 1992, during the Los Angeles riots, after four white police officers were acquitted in the brutal beating of Black motorist Rodney King.
Federal troops were deployed with local law enforcement to a domestic violence situation. Because of the difference in training between the two, it resulted in soldiers opening fire onto a Los Angeles residence. No one was injured, but more than 200 bullets were fired.
“Soldiers are not trained to do law enforcement,” Nunn, with the Brennan Center, said.
He added that this kind of use could also lead to violations of civil liberties, even though the use of the Insurrection Act does not suspend constitutional rights and he argues is not limitless.
“When the military is operating under the Insurrection Act, they are assisting civilian authorities, not taking their place,” Nunn said.
‘The magic word’
Two of the executive orders — one designating cartels as terrorist organizations and another on protection of the states — could lead to the rapid detention and deportation of immigrants by using the Alien Enemies Act.
“In one of those early executive orders is a magic word that you should be sensitive to,” said Stephen Dycus, a professor in national security law at the Vermont Law School. “And the magic word is ‘invasion.’”
The Trump administration designated the Tren de Aragua, a Venezuelan gang, as a terrorist organization in its use in mid-March of the Alien Enemies Act.
A federal judge has already blocked the use of the law. However, civil rights groups charge that the Trump administration continued to use the Alien Enemies Act to deport immigrants, and a federal judge is demanding clear answers from the administration about the deportation flights.
The Trump administration has defended the deportation flights and Trump has cited his duty to protect Americans from an “invasion.”
“The big question, obviously, is, what constitutes an invasion?” Dycus asked. “In the first Trump administration, the influx of immigrants from the southwest were characterized that way. So I think that’s part of the groundwork that’s being laid.”
Ilya Somin, an expert in constitutional law and professor at George Mason University, disagrees with the Trump administration’s argument declaring the Tren de Aragua gang as an “invasion” in order to form the legal basis for using the Alien Enemies Act.
The use of the act can circumvent judicial proceedings, based on an immigrant’s country of origin. It’s been invoked in the War of 1812, World War I and World War II and most recently led to the Japanese internment camps.
“The attempt to declare them to be terrorist organizations could be part of an effort to sort of get courts to defer and to accept the invasion framing, and possibly also to accept the use of the Alien Enemies Act,” Somin said.
Targeting Venezuela
In speeches, rallies and social media posts, Trump has often accused Venezuela of sending criminals and gang members to the U.S., despite during his first administration granting deportation protections for Venezuelans, citing the political and economic instability of the Maduro regime.
The Trump administration has pressured the Venezuela government to begin accepting deportation flights of its nationals. Noem has already moved to end temporary protected status for one group of 350,000 Venezuelans, subjecting them to fast-track deportations. Noem cited gang activity as one of her factors in not extending protections.
Somin said that for the Alien Enemies Act to be used, an “invasion” needs to be undertaken by a foreign government.
“Even if the cartels are terrorist organizations, which I deny, they are not foreign governments,” he said.
Katherine Yon Ebright, a counsel in the Brennan Center’s Liberty and National Security Program, said that using the act to go after suspected members of the Tren de Aragua gang could ensnare many Venezuelan immigrants, regardless of legal status.
“You’re getting the ability, really, to target any Venezuelan, age 14 (and up), who’s not a U.S. citizen,” she said of the Alien Enemies Act. “And you don’t have to explain yourself, you don’t have to prove anything.”
Guantanamo
Using a memo rather than an executive order, although related, the Trump administration has already ramped up use of the military in immigration duties, using military aircraft to return migrants to their home countries or to send immigrants to the naval base at Guantanamo Bay, Cuba. The base was used to house suspected terrorists in the 9/11 attacks.
“I think it’s actually a bellwether for understanding how far this escalation trajectory the administration plans to go, because the detention that’s happening at Guantanamo Bay is a big concern,” Mirasola said.
The use of the naval base comes as the Trump administration has tried to increase detention bed space capacity, but U.S. Immigration and Customs Enforcement is only funded to hold roughly 41,500 beds across the country.
Trump has instructed his administration to hold up to 30,000 migrants at Guantanamo. There are currently no immigrants detained at the base, though its use has not been ruled out.
But the actions of signing executive orders or memos or proclamations can only go so far, experts say.
“Implementing his commitment to use the military to round up immigrants is not going to be easy,” Dycus, of Vermont Law, said. “Logistically, it’s going to really take a lot of effort and a lot of personnel to do it.”
