Immigration In the Age of A Second Trump Term: Taking a Page out of Texas’ Playbook

Trump and his allies, through Project 2025  and otherwise, have vowed to build massive camps run by the Department of Homeland Security (DHS) near the border to detain immigrants. This plan will require increased funding to pay for facilities, beds, and employee salaries. If Congress does not allocate these funds, the administration has promised to redirect money from the military budget. During his first administration, Trump successfully diverted billions in military funding to pay for the border wall. While multiple lawsuits were filed challenging the legality of this diversion, in July 2019, the Supreme Court ultimately allowed the administration to use $2.5 billion in Pentagon funds for the border wall construction while litigation continued. 

Trump has promised to conduct mass deportations using the Alien Enemies Act of 1798 (AEA), which authorizes the president to detain and deport immigrants in times of congressionally-declared war or presidentially-proclaimed “invasion” or “predatory incursion” by a “foreign nation or government.” The most infamous use of the AEA was during World War II when its authority justified the United States government’s shameful internment of Japanese-Americans on American soil. By using the AEA rather than existing immigration enforcement authority, Trump believes he can suspend due process and implement a mass deportation operation (alongside expanded expedited removal).  

Trump has promised to deploy the National Guard to undertake immigration enforcement operations. While the United States has laws that restrict the use of federal military personnel in domestic law enforcement activities, including immigration enforcement, there are exceptions that could allow governors and the federal government to activate the National Guard across the country. There is currently no clear prohibition on using activated troops in a state without its governor’s consent.

Project 2025 has made a number of recommendations that Immigration and Customs Enforcement (ICE) engage more closely with local law enforcement to multiply their immigration enforcement resources by allowing more states and local agencies to act as immigration enforcement agents and ramping up detention of those with certain criminal records.  ICE will easily be able to achieve this through simple policy changes without having to ask Congress for additional funds.

Trump has promised to use “expedited” removal against certain classes of immigrants  who have not been admitted or paroled and who cannot prove that they have been continuously present in the United States for two years. Previous administrations have placed limits on this law - most importantly, that the immigrant would have to have been encountered within 100 miles of any land border within 14 days of entry - but Trump has vowed to remove these limitations, as he did in his first term, allowing immigration officers to quickly remove any immigrant who falls within the bounds of the law anywhere in the country.  In addition, Trump will allow CBP officers unchecked access to board trains, buses, and other vehicles, question occupants of vehicles about their citizenship, and request document proof of immigration status. This, along with the expansion of expedited removal, will give CBP tremendous search and removal powers throughout the country.