For our September+October issue, we investigated the Border Patrol’s sharp growth, its troubling record on civil liberties, its culture of impunity, and its role in shaping the current political moment—one that echoes the anti-immigrant fever that led to the agency’s creation a century ago. Read the whole package here.
At a December rally in Reno, Nevada, GOP frontrunner Donald Trump made his regular promise: To treat immigration as if the United States is at war. He accused President Joe Biden of launching a “military invasion” against the United States by allowing “drugs, criminals, gang members, and terrorists” to cross the US-Mexico border. He vowed to conduct the “largest deportation operation in American history,” inspired by President Eisenhower’s slur-named “Operation Wetback.” And he promised to “clean up” the country, which has turned into a “dumping ground” and “safe haven for blood thirsty criminals [and] savage gang members.”
Trump’s hyperbolic anti-immigrant language and pledges to deport millions of undocumented immigrants is hardly new. He ran on it back in 2016 and then, advised by hardliner Stephen Miller, in his first term Trump implemented some of the most draconian immigration policies in recent memory.
Still, as failed GOP contender Gov. Ron DeSantis noted, Trump ultimately deported fewer people than his predecessor Barack Obama (who was dubbed the “Deporter-in-Chief“). Now, Trump is vowing to take a step further: promising to weaponize the full force of government against immigrants.
That means doubling down on a “Promise Broken” from his first term to remove all undocumented immigrants from the country. Deportations—as Miller, the founder and president of the “anti-woke” America First Legal group, has declared on X—would begin on Inauguration Day. “If President Trump is back in the Oval office in January,” Miller told Turning Point USA’s Charlie Kirk, the anti-immigrant agenda will “commence immediately and it will be joyous and it will be wonderful and it will be everything you want it to be.”
Some of Trump and Miller’s proposals may sound bizarre, far-fetched, or at least bound to draw legal challenges, but they shouldn’t be dismissed either—especially in light of a 2022 Supreme Court decision that could hinder lawsuits challenging unlawful immigration enforcement policies.
Here’s how a second Trump presidency would go about conducting mass deportations and what immigration experts and former officials say would occur if these plans were attempted by a presidential administration.
Invoke the Alien Enemies Act
What Trump and Miller say they would do: A wartime statute that was part of the infamous 1798 Alien and Sedition Acts, the Alien Enemies Act authorized the president to detain, relocate, or deport male citizens, 14 or older, of hostile nations. (How to define such a country is complex, but basically it refers to situations where this is “a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion” that has been done “against the territory of the United States.”) During World War II, it was used to detain citizens of Germany, Italy, and Japan.
As Rolling Stone recently reported, a second Trump administration would make the argument that gangs and drug cartels in Latin American countries have risen to the level of “state actors” and are “engaged in an invasion on behalf of foreign narco-states.” Invoking the Alien Enemies Act, Miller has said, would allow them to “suspend the due process that normally applies to a removal proceeding.”
George Fishman, who served as Department of Homeland Security’s deputy general counsel during the Trump administration, suggested one of the benefits of invoking the Alien Enemies Act would be to deport large numbers of students from China in case of a war between both countries. (He also acknowledged that there are “very serious roadblocks” to Trump’s plan of claiming an invasion by drug cartels and gangs.)
What experts say would happen: The Alien Enemies Act can’t be simply used as a basic immigration enforcement tool. “That is a ridiculously dumb idea,” says Aaron Reichlin-Melnick, policy director at the American Immigration Council. “It is something that even the most conservative Federalist Society Trump appointees would laugh out of court.”
As much as conservative politicians like to claim otherwise, the United States isn’t currently in a declared war or under a foreign invasion. Even if that were not the case, Reichlin-Melnick explains, the Alien Enemies Act applies to specific countries. “You cannot simply say we are being invaded by ‘drugs’ and then call for all drug dealers to be deported because ‘drugs’ is not a country,” he says. “You would have to essentially make a declaration as to every single country that those people come from—effectively declaring that the United States is being invaded by dozens of countries around the world.” That would in turn create all sorts of diplomatic issues and essentially a “massive foreign relations nightmare.”
The end result? Some of these countries that actively cooperate with the United States in managing border flows might stop doing so, potentially leading to more drugs and migrants coming through.
There would also be economic costs. “The US-Mexico-Canada Agreement (USMCA, which replaced NAFTA in 2020) has led to profitable trade agreements between Canada and Mexico,” says ManoLasya Perepa, policy and practice counsel for the American Immigration Lawyers Association (AILA). “Declaring war on one of its two major trading partners will surely negatively affect businesses and the people of the United States.”
In addition, declaring war against Latin American countries to invoke the Alien Enemies Act, Perepa explains, would have the effect of strengthening the asylum claims from migrants “because a Trump administration would give credibility to [claims that] cartels and gangs are the government in these countries.”
Experts also say ignoring due process in removal proceedings for immigrants from certain countries would not survive court challenges alleging discrimination based on national origin. “There is a wealth of case law indicating its unconstitutionality,” says Perepa.
Still, a Supreme Court decision preventing federal judges from issuing injunctions blocking unlawful immigration policies as the cases work their way through the legal system is a massive sea change. “The courts will be a significantly more limited check on his immigration enforcement actions in the second term than they were in the first term,” says Reichlin-Melnick.
Deploy personnel from other federal agencies, mobilize the US military, and call in state and local law enforcement
What Trump and Miller say they would do: When asked by the hosts of the Clay Travis and Buck Sexton radio show how the mass deportations project would be realized, Miller said it would require a “switch to indiscriminate or large-scale enforcement activities.” Miller described going to every place where there are known congregations of “illegals” and taking people to federal detention. To accomplish that, there would need to be a massive increase in personnel, he explained. Miller then proposed pulling “10 to 11,000 guns and badges” from a myriad of places: Homeland Security Investigations (HIS), the DEA, the ATF, the FBI, and even National Park Service law enforcement, in addition to gathering “badges’ from the US military and local law enforcement (particularly sheriffs) to carry out large-scale deportations across the country.
What experts say would happen: Right now, there are “currently more than 8,700 employees that” makeup HSI, the investigative arm of DHS, AILA’s supervisory policy and practice counsel Jennifer Ibañez Whitlock explains. “This idea would essentially gut the entire workforce.”
Under Miller’s idea, all the various goals of law enforcement—stopping terrorism, disrupting organized crime, maintaining calm at national parks—would be put aside for immigration enforcement. “What you’d be telling the American public is we don’t care that a pedophile is going after your child,” says Reichlin-Melnick, “we need to go after a grandma who’s been here for 30 years undocumented.”
Deputizing personnel from other federal agencies also raises the obvious question: What happens to the work they are being pulled away from? During the period when the Trump administration separated migrant families at the border under the zero-tolerance policy that prosecuted border crossers, federal drug trafficking prosecutions plummeted. “You’re talking about a free-for-all on crime for everything else when you’re spending all your resources only focused on undocumented immigrants,” Reichlin-Melnick adds.
Then there are also clear pitfalls of asking agents to do work for which they are not prepared. Relying on untrained agents to enforce immigration law, says Doris Meissner, former commissioner of the US Immigration and Naturalization Service (INS) under Bill Clinton, “would generate enormous violations of civil rights, create [racial] profiling, and sweep up large numbers of US citizens who are not required to carry any documents that prove they are properly in the country.” This kind of agenda, Meissner adds, ultimately perpetuates “sharp swings and [an] inability as a country to settle into an immigration system that is up to date and modernized and reflects laws that are in our national interest.”
Deputize the National Guard for immigration enforcement
What Trump and Miller say they would do: “You go to the red state governors and you say, give us your National Guard,” Miller explained on Kirk’s podcast. “We will deputize them as immigration enforcement officers…the Alabama National Guard is going to arrest illegal aliens in Alabama and the Virginia National Guard in Virginia. And if you’re going to go into an unfriendly state like Maryland, well, there would just be Virginia doing the arrest in Maryland, right, very close, very nearby.”
What experts say would happen: The Posse Comitatus Act generally bars the US military, including the National Guard, from engaging in domestic law enforcement. (The New York Times reported Miller saying that the Trump administration would get around this by invoking the Insurrection Act to allow the use of federal troops to arrest migrants.) The Bush, Obama, and Trump administrations all deployed federal troops to the Southern border, but they were limited to logistical and administrative roles. To deploy the National Guard for immigration enforcement purposes, Reichlin-Melnick explains, Trump and Miller would therefore have to override the Department of Defense’s interpretation of the Posse Comitatus Act.
“In this America, instead of a ‘Maryland Welcomes You’ sign at the border of Virginia and Maryland, Mr. Miller would have militarized checkpoints at state borders to detain and arrest individuals who may not have the right immigration papers,” says Whitlock. “Deputized or not, the National Guard is not trained to conduct an evaluation of someone’s immigration status on the spot, let alone adjudicate claims to US citizenship. This tactic would prove highly disruptive to our economies and communities, almost certainly lead to racial profiling, and bring about a host of individual case litigation on behalf of wrongfully detained US citizens. There also seems to be zero consideration for the millions of mixed-status families, including minor US citizen children, living in the interior who would be split apart by these mass raids.”
Build massive staging “output” facilities near border infrastructure to carry out removals
What Trump and Miller say they would do: To detain immigrants before carrying out their deportations, Miller said the Trump administration would build massive holding facilities that could accommodate between 50,000 to 70,000 people at any given time. Such an undertaking, he said, “would be greater than any national infrastructure project we’ve done to date.”
Miller also suggested having weekly deportation flights on different days to places like the Northern Triangle countries, India, or China. “That way, as you’re getting people who’ve been here for different lengths of time,” he said on a podcast, “when their case ends, whether it be in an hour or a week, when it ends, there’ll be a plane ready and fueled up and ready to take them home.”
What experts say would happen: “Building a facility like Miller describes is reminiscent of Stalin’s building of his gulags,” Amy Grenier, AILA’s policy and practice counsel, says, “and would be antithetical to American values.”
But it isn’t impossible. The Trump administration built tent cities close to the border to temporarily detain migrant families. In 2021, the Biden administration started holding thousands of unaccompanied minors at a makeshift shelter at Fort Bliss, an Army base in Texas. Issues with the case management of children and timely release led migrants to “experience distress, anxiety, and in some cases, panic attacks,” according to a watchdog report.
“If you throw together a bunch of tents in the border and shove 50,000 people in them,” Reichlin-Melnick says, “people are going to die.”
On flights, Miller seems to ignore the current reality. “There are already, under the Biden administration, frequent deportation flights to Northern Triangle countries—there were 36 flights to Guatemala between January 1 and 21,” says Yael Schacher, immigration historian and director for the Americas and Europe at Refugees International. “But so many people are coming from other countries—and many [countries] will likely refuse to accept an increased number of deportation flights unless President Trump gives them something in exchange.” China “still refuses to accept planes,” Schacher notes, as they have since the last Trump administration. “I don’t know how Trump will force China to take people.”
Overall, Reichlin-Melnick says, Trump and Miller’s plan “ignores the actual laws, the resource challenges, and the significant public opposition if they actually started trying to do any of this.”
Read the rest of our Border Patrol investigation here.
