Jennifer Lee Koh
President-elect Donald Trump has vowed to carry out mass deportations. Can it happen?
A one-time operation that targets the entire population of more than 11 million who lack legal status is an unlikely scenario. One organization has estimated the cost of such an operation at a minimum of $315 billion.
But if “mass deportation” means a reshifting of core government priorities, reflected in countless actions, then we are indeed on the brink of an era of mass deportation. That era could bring a scale of deportations that potentially far exceeds the records of Presidents Obama and Biden. The president-elect’s earliest leadership picks — Stephen Miller, Thomas Homan and Kristi Noem — suggest that mass deportation will take precedence. And the next administration can adopt many tools to carry it out.
Many of those tools are old. Existing immigration laws already grant the government vast power to deport. Those laws state that many immigrants have a right to an immigration court hearing before an immigration judge, but the law also provides ways to carry out deportations outside of immigration court — in the shadows of due process, so to speak. The president-elect could seek to expand one of these methods, known as expedited removal. In addition, the power to incarcerate in the name of deportation is already robust. The government has long understood that detaining people far away from family and support networks is an effective way of convincing individuals to give up their rights and agree to deportation orders.
The next administration can, in effect, make more “undocumented immigrants” by revoking the legal status of many noncitizens. The president-elect has already promised to eliminate humanitarian protections, such as Temporary Protected Status (for countries experiencing war or internal disaster). For “Dreamers,” the limited benefits of Deferred Action for Childhood Arrivals, or DACA, are extremely vulnerable as well. The Trump administration could understaff immigration offices designed to confer immigration benefits and concentrate instead on revoking statuses to leave people more vulnerable to deportation and detention.
Some tools may be new, and push legal boundaries. When noncitizens assert their due process rights and communities organize, deportations falter. Accordingly, the president-elect has already expressed great interest in invoking old laws such as the Alien Enemies Act of 1798. This law would allow for the arrest and summary deportation of men over the age of 14 who are from countries designated as engaging in an “invasion” or “predatory incursion.” (It was last used to justify the mass incarceration of Japanese Americans during World War II.)
Some federal courts have already indicated that the executive branch’s assessment of whether unauthorized migration constitutes an “invasion” is a political question over which the courts have no say, thereby empowering the next administration to designate nationals of certain countries for immediate deportation without pushback from the courts.
Republican control of Congress for the next two years means that huge realignments of funding for mass deportation are possible. Additionally, a wholesale rewrite of the immigration laws could be on the horizon, for instance, to make it even easier to deport green-card holders or eliminate entire visa categories. And what if Congress passes a new immigration law that violates the Constitution? Lawyers for the administration could invoke a controversial but persistent legal doctrine stating that when it comes to immigration, Congress has virtually unlimited power.
In some ways, we can expect mass deportation to be highly visible, even designed for political theater (for instance, by calling in the military). After all, showcasing harsh enforcement toward immigrants is another tool in and of itself. By instilling fear in immigrant communities and families, the government can rely on “ self-deportation” as an immigration enforcement strategy.
But other actions will be hidden far from sight. Appointed “border czar” Homan (who oversaw and has since defended family separation at the border) has noted plans to expand the use of detention by rapidly building high-capacity holding camps. The inner workings of those detention centers will likely remain far from the public eye. To the extent that serious atrocities take place, they will come to light because advocates or whistle-blowers uncover them — as happened with the nonconsensual medical procedures performed on immigrant women at a Georgia immigration detention center during the first Trump administration.
Where does this leave us? Legal challenges to the many discrete actions that further a mass deportation agenda will arise. The lower federal courts may be receptive, which could slow parts of the government’s plans. But how this Supreme Court responds is an open question. Furthermore, it would be naive to assume that the next administration will duly comply with court orders.
The era of mass deportation may eventually strike some Americans as shocking and spectacularly cruel. The public may notice the economic, social and institutional harms that could flow from sudden disruptions in population — lost workers, closed businesses, empty apartments, smaller communities of worship and children without parents, not to mention the possibility of continued inflation and even higher food prices.
But the last decade of immigration enforcement has also normalized migrant suffering in the American eye. The American public has already borne witness to family separation, concertina wire in Texas and a generation of young people failed by the promise of DACA. And we can expect that outright lies about immigrants, such as the notorious allegation about Haitian immigrants eating pets, will receive ample airtime and shape some people’s views.
For some Americans, mass deportation of the scale promised by the president-elect may represent a welcome change. Still, it is unclear whether people voted for Donald Trump because of or in spite of his promise to carry out mass deportations, as some polling suggests.
Those who feel that the mass deportation agenda goes too far can and should make their views known. They can extend compassion and generosity to community members who are affected. They can support legal and community-based efforts on behalf of immigrants. Institutions such as local governments, states, universities and faith communities can refuse to take part if called upon to participate in the mass deportation effort. Despite the many tools available to the incoming administration, the reality of mass deportation still lies at least partly in the hands of the American public.
Jennifer Lee Koh is a law professor at Pepperdine Caruso School of Law.
