Roundtable #26 | Immigration and Trump’s Executive Orders

Section I: Mass Deportation in America: Legal Foundations and Challenges in Trump’s Second Term

One of the most prominent policy changes of Donald Trump’s campaign for his second presidency centered around the mass deportation of immigrants illegally in the United States. After returning to office, he quickly went to work amending preexisting acts in order to accomplish his goal, and already deported almost 40,000 immigrants in his first month. The new administration’s aggressive policy reforms have sparked scrutiny throughout the country and are now under pressure from multiple legal challenges. So, the questions remain: why are deportations legal, and how do the Trump administration’s new efforts differ from the past? This article will examine the legal framework surrounding these new policies, the legal challenges they face, and the potential implications for the future of immigration law in the United States.

During Trump’s first presidency, his focus on deportations and heightened security at the southern border drew legal challenges. His ability to deport immigrants as well as allow them to be eligible for asylum is grounded in the Immigration and Nationality Act (IMA). The deportation process outlined in this act states that once an individual is found in violation of immigration law, they are taken into immigration court, and if the judge rules so, are issued a final order of removal. In 1996, this process could be expedited through the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which, among other things, amended the IMA, allowing for an expedited removal of some individuals without the aforementioned hearing. At the time of Trump’s first presidency, this act extended only to those who lived near the US border, and Trump, during his first presidency, actually deported fewer individuals than either his predecessor or successor. Now, however, early in his second term, Trump has expanded and continues to voice his wishes to expand the United States’ deportation capabilities in order to execute mass deportation on scales the country has not seen before. To understand in greater detail and context why this is allowed, it’s important to look at the history of deportation in the United States.

Mass deportation is not a new idea in the United States. In 1798, while the United States was on the brink of war with France, the Federalist Party passed the first round of Alien and Sedition Acts in the United States’ history, believing that the criticisms of the opposing political party, the Democratic-Republicans, were disloyal and could cause non-citizens to sympathize with the French during a potential war. The Acts consisted of four laws, among which authorized the president to arrest, imprison, and deport non-citizens during “war, invasion, or predatory incursion.” This was the only act not to be repealed by the following Congress. Though neither John Adams nor Thomas Jefferson deported anyone from the United States, this act certainly opened the door for future presidents to do so. Later, in 1954, the largest mass deportation in American history took place under President Dwight D. Eisenhower – known as Operation Wetback. Eisenhower, with the cooperation of the Mexican government, authorized border patrol and local officials to use military techniques to complete a coordinated and tactical removal of immigrants, some of whom were even in the country legally. This is much closer to Trump’s plans for mass deportation, but even Eisenhower’s operation only managed to remove people in the magnitude of the hundreds of thousands, not the 20 million Trump claims he needs. Eisenhower did not authorize the use of the federal troops in accordance with the Posse Comitatus Act of 1878, which was passed following the end of the Reconstruction Era, and which limits the powers of the federal government to use military personnel to enforce domestic policies in the United States. 

In terms of Trump, although his mass deportation plans are just beginning, he’s already changed multiple laws to allow for more efficient removal of immigrants. He expanded on the expedited removal process in the IIRIRA and IMA to extend nationwide, allowing the Immigration and Customs Enforcement (ICE) to deport any undocumented immigrants who were in the country for under two years. Further, the administration evoked the Alien Enemies Act of 1798, which allows for the president to remove individuals deemed threats to national security, particularly to deport individuals perceived to be connected with various gangs. This act was used during the War of 1812, World War I, and World War II, but its use in a time of peace is unprecedented. That said, there are still many ongoing legal issues and challenges to Trump’s new policies. In particular, judges have blocked deportations to third countries, or countries that the immigrants did not immigrate from citing the fact that the Alien Enemies Act was meant to be in use in times of war – something that further applies to student and academic protestors, many of whom are fighting green card revocations and potential deportation. Despite these challenges and further issues regarding due process in expedited deportations, the Trump administration continues on its behemoth challenge to deport their proposed 20 million immigrants. 

The Trump administration’s expansion of deportation efforts builds and expands on multiple acts, particularly the INA and IIRIRA. However, the pending legal challenges show the scope of executive power as it pertains to the protection of immigrant rights, particularly when it comes to due process in the deportation process. Therefore, the outcomes of these challenges will not only shape the landscape of American immigration law but will also further define the boundaries of executive authority.

By Leena Mehta

Edited by Eve Bertrand & Thai Loyd

Section II:  Untying Contraries: State Tensions Within Our Union

As the Trump Administration took office, it began carrying out its agenda; one that seems to be reckoning with the times to come. Among the number of executive orders (EO) signed, one became a pertinent marker of the federal and state governments’ constitutional rights. Executive Order 14159, Protecting the American People Against Invasion, is targeted towards reinforcing the Trump campaign’s promise to hammer down on deporting illegal aliens. Section 11 is of concern for state and local governments, and as we will see argued, stipulates the extent to which state law enforcement officials can be commandeered to be “an addition to” the federal agencies conducting deportation efforts. Section 17 also presents alarm for sanctuary cities as it posits that the Attorney General and the Secretary of Homeland Security take action against cities that interfere with the deportation efforts. The 2025 executive order is similarly outlined after Trump’s 2017 Executive Order 13768, Enhancing Public Safety in the Interior of the United States, particularly Section 9, in pressuring the Attorney General and the Secretary of the Department of Homeland Security to pursue cases against sanctuary cities unwilling to comply. Further, for the 2025 order, the same arbitrary language was used in Attorney General Pam Bondi’s memorandum, “Sanctuary Jurisdiction Directives”, in which the Justice Department outlines its objective to end funding.  It is thought that sanctuary states and cities may be able to build a stringent defense from the constitutional laws that outline the governance of public funds; not only that, but also from previous cases that established sufficient groundwork from which the states and cities argued and found that their policies are legal. 

In San Francisco v. Trump’s appeal to the Ninth Circuit, the appellate panel affirmed the lower district court’s findings that the 2017 Executive Order violated constitutional separation of powers, vacated a nationwide injunction, and was remanded. The District Court had concluded that the Executive Order violated the Separation of Powers, the Tenth Amendment’s anti-commandeering principle, and that it infringed on the counties’ due process rights. In its affirmation, the appellate panel analyzed the order’s ability to withhold funding under the Spending Clause. As outlined in the Constitution, the clause gives Congress the exclusive power to impose conditions on federal grants and plainly outlines that the executive branch cannot withhold funds without congressional authorization. The court previously opined that the executive branch had no proper authorization due to the lack of congressional action. The complaint also stipulates along the same violations of long-standing constitutional principles, such as the Spending Clause and the Separation of Powers. As such, the current actions to withhold funds in the EO are simply without congressional approval, providing a foundation from which the current complaint may find its footing to have good standing in the courts once again. 

With similar regard to the current Justice Department’s pursuit of cases against sanctuary cities, there are, again, cases from the first Trump administration to illustrate the strength and grounding for the power of state law, as well as specific reinforcement from a bedrock principle: the separation of powers. Amongst various legislative efforts to protect immigrant residents from federal immigration agencies, California’s 2017 Senate Bill 54 (SB 54) is one of the most contentious because of its limitation on state and local agency cooperation with federal immigration enforcement agencies. This was directly challenged in United States v. California, in which the United States sought a preliminary injunction, which is an order to preserve the status quo before final judgment. The United States used the argument that the legislation violates both the doctrine of intergovernmental immunity and the doctrine of conflict of preemption, both of which regard how state and federal operations may interact with more emphasis on protecting federal operations from state legislation targeting federal operants. A Ninth Circuit panel affirmed the district court’s ruling that SB 54 was consistent within the outlines of the Tenth Amendment, largely by the anti-commandeering principle, which limits Congress from ordering states to enact and administer a federal program. The district court argued that refusing to help is not impeding efforts. Further, it rejected, “...the United States’ contention that SB 54’s information-sharing restrictions…conflict with the INA’s 8 U.S.C. Statute 1373 […]”. Statute 1373 outlines that a government entity may not prohibit or restrict its officers from sharing information with the DHS regarding a person’s citizenship or immigration status. Essentially, SB 54 permits the sharing of information, but the US was pursuing a view that 1373 applies to more information than immigration status, thus creating a conflict. The panel referenced and argued that the language of 1373 only meant a person’s classification under federal law. Thus, from the specificity of the permitting of information sharing as outlined in its state law, the newest California suits have strong footing to defend from. 

Chicago’s Welcoming City Ordinance has ordinances that limit information sharing unless a proper legal process is presented. Currently, Attorney General Pam Bondi’s Justice Department is accusing the State of Illinois and the City of Chicago of interfering with and obstructing federal immigration enforcement using Article VI’s Supremacy Clause, which establishes federal law as the supreme law of the land. In actuality, in Illinois’ TRUST Act, it is plainly specified that no part of it is to be taken to be noncompliant with Statute 1373. However, the Justice Department’s complaint states that it is the city ordinance that actually restricts information sharing, which directly conflicts with Statute 1373; more plainly, the ordinances outline the prohibition of information sharing regarding citizenship status, which is exactly what Statute 1373 prohibits. With this in mind, in Chicago v. Sessions, the District Court examined the constitutionality of Statute 1373, recalling from City of NY v. US where the court partially found that the federal government did not commandeer or compel state officials to enact federal programs. Chicago then argued that the decision violated the Seventh Circuit’s decision in Travis v. Reno by, “...applying a balancing analysis to encroachments on federalism.”, meaning that the decision was allowing a step-by-step process view of federal overreach; the District Court affirmed that but only in regard to a secondary question raised by the City. But in this question may reside our argument for the next step for law, in which practical considerations of state and local governments may find themselves developing a novel basis for their boundaries. Though read literally, Statute 1373 carries no literal ordering of state officials to enact anything. Nevertheless, the statute carries practical considerations in which the volunteering of officials to comply with a federal program and the subsequent prohibition on state and local legislation to enact law restricting such volunteering then creates a situation in which legislators lose an amount of control over their officials from the officials’ ability to volunteer their cooperation. Thus, as from the amicus brief filed on behalf of the city, the Illinois ACLU argues from the standpoint of states’ rights to implement laws towards legislating the actions of its law enforcement officials, i.e. in support of the lost ability for state/city legislature to regulate their officials’ duties implicated from the Statutes. If Chicago argues from the practical standpoint, the courts would be considering novel premises in dictating the practical consequences following such statutes and, as the Second Circuit notes, an extension of the law.

Though the newest Trump Administration demonstrates a fervent desire to implement its agenda, it finds itself challenged by the Constitution’s principles that fortify our societal foundation. With previous executive orders targeting sanctuary states and cities, like California’s Senate Bill 54 and Chicago’s Welcoming City Ordinance, came lawsuits that concerned foundational principles like the Supremacy Clause and states’ rights found in the Tenth Amendment. In each case, appellate courts confirmed lower district courts' rulings in granting injunctions against federal overreach, antagonizing the city’s self-determined status as a sanctuary city for migrants. These cases serve as a bedrock for follow-on cases in the current Trump Administration pursuing the same goals. Despite some differences, the principles stand ready and triumphant to account for the United States’ continuing experiment. 

By Victor Odom 

Edited by Eve Bertrand & Thai Loyd

Section III: Executive Order 14163: Killing a Legal System

On January 20th—U.S. President Donald Trump’s very first day in office—the President would upset an entire subset of immigration and international law. Executive Order 14163, entitled the Realigning the United States Refugee Admissions Program, called on the Secretary of Homeland Security to “suspend decisions on applications for refugee status,” beginning on January 27th. This action has essentially ended refugee processing and resettlement for the foreseeable future. Many politicians give their spurious support to ideals like freedom and liberty while supporting acts, such as this executive order, that remove even the chance for a free life in the United States for so many. While refugees and asylum seekers are often seen as equivalent in the media and by politicians, they engage in a different set of laws and legal practices. By equalizing these legally distinct groups, the ‘migrant crisis’ can be used as a scare tactic to justify sweeping changes in our immigration system.

Using the same rhetoric that was central to President Trump’s campaigns, the order cited the “significant influxes of migrants” and the nation’s alleged inability “ to absorb large numbers of migrants, and in particular, refugees, into its communities” as the rationale for upending an entire subset of the U.S. immigration system. However, the order fails to cite any valid reasoning or evidence of refugee resettlement endangering American citizens or national security. Although unknown to most Americans, refugee resettlement is a highly vetted legal process, yet Trump’s executive order undoes this process with no thought to its humanitarian or legal implications.

A refugee is legally defined as someone outside the United States who is of special humanitarian concern and demonstrates that they were persecuted or feared persecution due to race, religion, nationality, political opinion, or membership in a particular social group in the §1101 of the Immigration and Nationality Act, and the legal resettlement system that surrounds them came about as a result of World War II. With this crisis, the United Nations Higher Commissioner for Refugees (UNHCR) was created to oversee refugee resettlement. The Immigration and Nationality Act also outlines the selection process for Priority 1 refugees in which the UNHCR, and some other non-governmental organizations, directly identify and refer refugees to the United States Refugee Admissions Program. P-1 refugees, which made up 75% of refugee admissions in a recent Office of Homeland Security Statistics report, represent a highly vetted, highly supported group of immigrants. Overall, refugees represent a highly-vetted group of immigrants who desperately need the safety and freedom that the United States has previously represented. 

Unlike refugees, asylum seekers, often known as asylees, are foreign nationals who are already in or seeking admission to the United States while fleeing persecution, as defined by § 1158 of the Alien and Nationality Act. While both statuses include immigrants fleeing persecution, equating these separate categories and legal processes allows for President Trump to fearmonger, with Trump claiming in his executive order that the United States is being “inundated with record levels of migration.” This shifts all blame for an inefficient immigration system onto refugees, even though they are carefully vetted and referred to U.S. agencies before ever stepping foot on American soil. Trump’s predecessor, President Joe Biden, raised the refugee resettlement cap to a 30-year high of 125,000 in fiscal year 2024. However, this admission cap—while historic—does not represent anything close to a threat to the United States when we consider the over 1.7 million people who became lawful permanent residents in 2023. By equating refugees with asylum seekers, the Trump administration seeks to harm both groups by arousing public fear around a frankly non-existent fear of dangerous, unknown refugees being resettled in the country.

In response to Executive Order 14163, the global legal aid and advocacy organization International Refugee Assistance Project (IRAP) filed a complaint for declaratory and injunctive relief on February 10th. This complaint asserted that their plaintiffs have been “irreparably harmed by the Refugee Ban.” This complaint also put forth several claims for relief–a set of facts that put forth in a pleading to establish that they have a right to recover against a defendant–including the fact that, “there is no authority for the executive to indefinitely suspend a nondiscretionary statutory duty.” They also allege that the President’s executive order violates the Immigration and Nationality Act by suspending the agencies created in the act to deal with refugee resettlement among other illegal actions. On February 19, the Trump Administration filed an opposition to IRAP's motion for a preliminary injunction. However, United States District Judge Jamal Whitehead issued an injunction on the executive order on February 28th, noting that “though the Executive enjoys considerable latitude to suspend refugee admissions, that discretion is not boundless.” This injunction has been followed by the government’s response opposing the plaintiffs’ motion for emergency conference and further responses between both parties. While this case is still being litigated, it presents not only hope for refugees seeking resettlement in the United States but also begs a greater legal question: how much authority will we grant the President and the greater executive branch over well-established laws and the agencies that they create?

As Judge Whitehead alludes to in his injunction, it is obvious that a deeper legal review is needed to assess whether the President holds the power to suspend an entire subsection of immigration admissions indefinitely. Although presently legally ambiguous, Trump’s executive order undermines international law while also harming the American ideals of freedom and liberty that we claim to hold so dear. If the United States is to remain the Mother of Exiles, then the U.S. legal system must uphold both the law and our morals by rejecting Executive Order 14163.

By Gabi Fabozzi

Edited by Eve Bertrand & Thai Loyd