Trump wants to use the military to deport millions. Experts say it’s not that easy
President-elect Donald Trump confirmed this week that he plans to declare a national emergency and use the U.S. military to carry out the mass deportation of over 11 million undocumented immigrants living in the U.S.
That may prove easier said than done.
Legal experts have told the Miami Herald that Trump’s proposal could run afoul of federal law and would face immediate challenges in federal courts and encounter logistical hurdles.
Juan Carlos Gomez, director of Florida International University’s immigration law clinic, said that the U.S. Constitution and previous case rulings would not allow Trump to use the U.S. military to enforce immigration. Previous presidents have deployed soldiers in domestic territory, but only in times of war, such as the Mexican-American War in 1845 or the War of 1812 against the British.
Gomez told the Herald that Trump could declare a national emergency, typically used for natural disasters and civil unrest, to activate the National Guard. But using it to enforce civil immigration enforcement would be unprecedented, he said, and quickly face challenges in front of judges.
While presidents typically have broad leeway to declare national emergencies, legal limits still exist. Legal experts pointed to a 1952 Supreme Court ruling that determined that former President Harry Truman overstepped his authority when he used an executive order to seize control of steel mills during the Korean War.
“Hopefully judges act to limit any abuses of the law,” Gomez said.
Trump’s vow to deport millions of undocumented immigrants living in the U.S. served as a cornerstone of his presidential campaign. He has said that such an effort would rely heavily on the National Guard and cooperation from local law enforcement agencies, but has also floated the idea of deploying active-duty military – at least in some capacity – to carry out his orders.
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National Guard members have been deployed to the U.S.-Mexico border in the past, though they have typically been charged with administrative tasks or surveillance rather than physically rounding up and removing migrants.
The president-elect hasn’t publicly offered details about how such an effort would work or what kind of military assets could be used to round up and remove undocumented immigrants. In a statement, Trump’s transition team spokesperson Karoline Leavitt insisted that the president-elect “will marshal every federal and state power necessary to institute the largest deportation operation of illegal criminals, drug dealers, and human traffickers in American history while simultaneously lowering costs for families.”
“The American people re-elected President Trump by a resounding margin giving him a mandate to implement the promises he made on the campaign trail, like deporting migrant criminals and restoring our economic greatness,” Leavitt said. “He will deliver.”
In an interview on Donald Trump Jr.’s podcast last week, President-elect Trump’s incoming “border czar” Tom Homan described the new Trump administration’s strategy for immigration and border security as “shock and awe.”
The incoming Trump administration could use military equipment, like planes, as part of a deportation operation, but in most cases, there are limits to how military personnel operate or maintain that equipment.
Elizabeth Goitein, the senior director of the Brennan Center’s Liberty and National Security Program at New York University, said that Trump isn’t likely to fulfill his pledge to deport the millions of undocumented immigrants living in the U.S.
“He wants to look like he’s doing big things. He knows that he can’t deliver on his promise to deport tens of millions of immigrants from this country. There’s no feasible way, whether you’re talking about the logistics, the cost or the impact on the economy, to conduct deportations at the scale that he’s promised.”
Still, she said, that doesn’t mean he can’t “do a lot of damage” to immigrant communities across the country.
“This is not to trivialize the amount of havoc that he can wreak,” Goitein said. “Even if deportations don’t take place at the scale he’s promised, it could still be an unprecedented effort.”
Kendall Coffey, a former U.S. attorney in South Florida, said that while presidents are rarely overturned when they declare national emergencies, using the military to carry out deportations could violate an 1878 law that bars the military from civil law enforcement without the authorization of Congress.
There’s also the logistical challenge of turning U.S. military personnel into de facto border patrol agents, Coffey said.
“Trump believes the national emergency declaration will get him past that, but it’s also a matter of training, logistics, execution. It’s one thing to say there are millions of potentially deportable people in this country, but locating them… and rounding up everybody is immensely complex.”
Beyond the legal challenges, some experts have cast doubts that Trump can carry out mass deportations at all because the immigration system has been chronically underfunded for years.
Coffey said that while Trump and the Republican-controlled Congress could still do “quite a lot” when it comes to carrying out his deportation plans, deploying the military would pose numerous legal and operational challenges.
“It’s very unclear how this gets executed at the operational level. It’s far from cut and dry,” he said. “We’re going to see, I think, that while both Houses are Republican, they’re filled with elected officials who have their own responsibilities to their constituents, to the Constitution and to the nation.”
But Gomez told the Herald that regardless of whether Trump is able to use U.S. Army or National Guard personnel, he would still be able to deport large numbers of people with current immigration enforcement resources, which have also grown under the Biden administration.
That’s especially true if the next Congress allocates extra employees and money to agencies such as Customs and Border Protection and Immigration and Customs Enforcement. He also added that the federal government could optimize a program, known as 287(g), that allows county and state police to perform limited immigration enforcement functions, by bringing more local public safety agencies into the fold.
A ‘disaster’
In places like South Florida, home to large immigrant communities, Gomez said that a mass deportation campaign would create a “social, moral, and economic disaster.” Many people could have immigration relief, such as Temporary Protected Status, stripped away. That would leave them vulnerable to deportation and drive them to hide underground.
Even those who voted for Trump in Miami-Dade County, Gomez noted, could also see loved ones and neighbors deported under the policy. U.S. citizens could also get swept up and sent to another country. And the federal government has accidentally deported Americans before, although it appears to be a rare error.
Economists, business leaders, and scholars have also previously told the Herald that many industries in South Florida are dependent on immigrants. Some, such as agriculture and construction, have higher proportions of undocumented labor. These could see their already-existing worker shortages exacerbated under a mass deportation policy.
READ MORE: Trump’s mass-deportation plan would have big economic consequences for South Florida
The American Civil Liberties Union, which has said that it will challenge any deployment of the military to carry out mass deportations, warned in a statement by Executive Director Anthony Romeo on Tuesday that Trump “will soon have the full power of the U.S. government machinery at his disposal to target and displace immigrants at a scale our nation has never experienced.
“As we ready litigation and create firewalls for freedom across blue states,“ Romero said “we must also sound the alarm that what’s on the horizon will change the very nature of American life for tens of millions of Americans.”