In January, President Donald Trump signed an executive order to expand immigration detention space in Guantánamo Bay, Cuba, to “full capacity.” It was another salvo in Trump’s campaign of fear: the infamous American detainment compound thrust forward as punishment for immigrants living in the United States. The administration started flying dozens of Venezuelans with alleged connections to gangs from El Paso, Texas, to the naval base—where a tent camp is under development to detain as many as 30,000 “high-priority” immigrants—last week.
Republican and Democratic presidential administrations have held refugees and asylum seekers intercepted at sea at Guantánamo going back decades. But this is the first time immigrants already on US soil are being kept there. Immigrants are not being detained in the Migrant Operations Center (MOC)—as has historically been the case for migrants—but in military installations reserved for suspected terrorists, according to reports. Department of Homeland Security Secretary Kristi Noem, who visited Guantánamo Bay, didn’t rule out the possibility that immigrants could stay detained indefinitely.
“This is just another attempt by a sitting US president to weaponize the specter of Guantánamo.”
Many lawyers and advocates have been warning of the risk of sending thousands of immigrants to a “legal black hole” such as Guantánamo. “This is going to take a massive infusion of funds and personnel,” says Jessica Vosburgh, a senior staff attorney at the Center for Constitutional Rights, one of the organizations that recently petitioned a federal district court in New Mexico to block the transfer of three immigrants to Guantánamo—and won. “And there are huge concerns about [what] would result from such a scramble to create what would essentially be a giant open-air prison.”
The case was brought by the Center for Constitutional Rights, the American Civil Liberties Union (ACLU) of New Mexico, and Las Americas Immigrant Advocacy Center on behalf of three Venezuelan nationals who the government has accused of having ties with the Tren de Aragua gang and whoare currently detained in the Otero County Processing Center in Chaparral, New Mexico. I spoke with Vosburgh and her colleague Ayla Kadah about their legal victory and how the Trump administration is engaging in a “punitive theater”:
What information do you have about the immigrants currently being held at Guantánamo?
Kadah: We don’t know very much about the men that have been transferred so far. What we do know is that the Trump administration has stated its intention to prioritize the transfer of Venezuelan men with ties to the Tren de Aragua gang and with pending orders of removal. We’ve also been having issues trying to get additional information. ICE appears to be evasive, at best, lying, at worst, about where people are and not really updating their systems.
The lack of information speaks to the fact that there’s no transparency. The government is essentially disappearing people into what has historically served as a legal black hole—this offshore, remote detention facility that is notorious for human rights abuses and diminishing people’s legal rights.
From reports that we’ve heard, the transferees are currently being detained not in the civilian Migrant Operations Center (MOC) at Guantánamo that has historically been used to detain migrants interdicted at high sea. Instead, they’re being detained at Camp 6 in the military detention center, which is the same prison designed to house law-of-war detainees apprehended in post 9/11 operations.
What legal authority, if any, is the president claiming to allow him to transfer immigrants from the interior of the United States to Guantánamo and detain them in military facilities?
Kadah: Military detentions are authorized only under the 2001 Authorization for Use of Military Force (AUMF). So the fact that they’re using these military detention facilities for migrants is illegal, and we have deep concerns about the lack of due process and the risk of indefinite detention for transferred migrants. The AUMF only authorizes the use of “necessary and appropriate force” against specific groups connected to the 9/11 attacks, so the Taliban and Al-Qaeda and associated forces. It doesn’t authorize the military detention of migrants, people convicted of crimes, or anyone that’s just broadly designated as a terrorist or a member of a foreign terrorist organization.
Vosburgh: It is unprecedented what is reportedly occurring to transfer people in immigration custody on US soil to Guantánamo.
Earlier this week, a federal district court temporarily blocked the transfer of three of your clients, who are detained in New Mexico, to Guantánamo.Can you talk about that win and what happens next in the case?
Kadah: Our motion was limited to our three clients and essentially our argument was that there’s a complete lack of certainty about whether the court will be able to retain its jurisdiction over the case and whether our clients will be able to access their lawyers and have their legal rights—including the right to due process, the right to adequate conditions of confinement, and the right against unlawful detention. We were simply asking the court to maintain the status quo, keep our clients where they are, and stop the government from any potential transfer that they’re planning to Guantánamo until at least there is more certainty about what legal rights they would retain. We have been told by the government that our clients are not being presently moved to Guantánamo, but they provided no assurance that they would not be moved there in the near future.
We’re continuing to challenge the lawfulness of our clients’ detention through the pending habeas corpus case. That’s always been the goal of this case, which we filed back in September before any of this Guantánamo news became relevant. Our position remains that if the government is unable to deport our clients to Venezuela or a third country, they should just let them go. It’s been over a year of detention for our clients and, in the meantime, they’ve been languishing in custody, separated from their families, and with their health deteriorating. Our position remains that their continued indefinite detention is not acceptable and it’s not authorized by the law or the Constitution.
Your case is narrow in scope. Do you anticipate broader lawsuits challenging the transfer of migrants to Guantánamo?
Kadah: We expect more legal challenges. The hope is that others will follow suit and challenge those transfers, both on an individual and systemic level.
Do we know what the Trump administration will do with individuals who can’t easily be sent back to their home countries? How long will they remain detained?
Kadah: It’s unclear how their rights will be respected, whether they’ll be respected, and to what extent.
Vosburgh: The administration’s goal was to engage in this punitive theater of transferring them to Guantánamo. This isn’t part of some kind of logistics flight pattern plan. It was highly intentional to make a large media show. Something that legal advocates, migrants in detention, and the Trump administration all agree on is that Guantánamo is known the world around as a symbol of human rights abuses and a legal black hole.
Kadah: This is just another attempt by a sitting US president to weaponize the specter of Guantánamo and what it symbolizes to further demonize and discard a group of people and undermine their legal rights and basic humanity. We see this challenge as an important effort to interrupt that cycle, as many before us have done.
On Thursday evening, the US Senate voted to confirm Russell Vought to lead the Office of Management and Budget (OMB), a key arm of the executive branch in charge of the federal budget and agency regulations. Vought will officially return to his old job, which—as I wrote in a profile of him published last year—he sees as being the “keeper of ‘commander’s intent’” in a war to upend the federal bureaucracy.
The 53–47 vote to confirm Vought came after Democrats held the Senate floor in an overnight marathon to protest the nomination. One after another, they excoriated Trump’s pick to be director of the OMB, perhaps more than any other controversial appointee.
“Of all the harmful nominees, of all the extremists that Donald Trump has elevated, of all the hard-right ideologies who have come before the Senate,” said Sen. Chuck Schumer of New York, “none of them hold a candle to Russell Vought. He is far and away the most dangerous to the American people.”
He added: “Most people have never heard of Russell Vought before, but make no mistake about it, my fellow Americans: He is the most important piece of the puzzle in Donald Trump’s second term. He will be the quarterback of White House policy.”
Describing Vought as the “godfather of the ultra right,” Schumer called him “Project 2025 incarnate.”
Vought’s goals are not secret, nor are they subtle—we do not have to decipher anything here. He's going to break laws, cut programs that help Americans, and funnel all that money to billionaires. I'm voting NO. pic.twitter.com/nlQ0A9PV1B
A self-avowed Christian nationalist, Vought is a wonky bureaucrat and Washington insider committed to Trump’s obsession with “draining the swamp.” During Trump’s first term, he tested the boundaries of the law to advance the president’s radical goals. Founder of the conservative think tank Center for Renewing America, Vought is also one of the architects behind the Heritage Foundation’s Project 2025 mandate for Trump’s comeback, advocating for expanding presidential powers and subjugating the federal government.
As I wrote in a profile of Vought, if confirmed, he would be the man best positioned to realize Trump’s visions—and push the religious right’s agenda:
For Vought, politics is downstream from religion. He sees a strong presidency as a way to bring forth a Christian nation. Vought opposes abortion and has referred to transgender identity as a “contagion.” He has suggested migration policy should be rooted in Judeo-Christian principles, with immigrants tested on their readiness to “assimilate.” If Trump wins, Vought wants to infuse the next conservative administration with the values of Christian nationalism—the conviction that the United States is bound to the teachings of Christ, from which all else follows.
During a January confirmation hearing, Vought was pressed on his anti-abortion stance and support of cuts to federal programs like Medicaid. He also reaffirmed his belief that the Impoundment Control Act, which limits the president’s authority to withhold funds appropriated by Congress, is unconstitutional. “My view of the [OMB director] position is that you come into an administration and you do what the president ran on, what the president’s viewpoints are,” Vought testified. “You take the viewpoint and you dispense it throughout the agency.”
“This is like, everybody’s watched Game of Thrones,” Sen. Brian Schatz of Hawaii said on the Senate floor this week, “he wants to be the king’s hand.” Massachusetts Sen. Elizabeth Warren called Vought the “puppet master” behind the Trump administration’s brief-but-chaotic funding freeze of all federal grants and loans. “We don’t know how far Russ Vought’s extremism will go,” she said. “But we can’t afford to wait and find out.”
While in charge of the OMB, Vought spearheaded the effort to implement Schedule F, an executive order meant to strip thousands of career civil servants from job protections and replace them with handpicked MAGA loyalists. Vought has talked about putting federal workers “in trauma” and make them “not want to go to work because they are increasingly viewed as the villains.”
“In addition to Vought’s intention to dismantle the civil service,” reads a statement submitted by Citizens for Responsibility and Ethics in Washington opposing his nomination, “the Senate cannot ignore his willingness and intentions to misuse his own authority and craft plans for the president to subvert the law and, in the process, American democracy.”
On Wednesday afternoon, dozens of immigrants and allies gathered in Langley Park, Maryland, to celebrate a major win: A federal judge had just indefinitely blocked the Trump administration’s executive order undermining birthright citizenship. “The people united will never be defeated,” they chanted in Spanish. In the front row, mothers held their infant children.
On his first day back in office, President Donald Trump signed an executive order titled, “Protecting the Meaning and Value of American Citizenship.” It challenges the established understanding that the 14th Amendment’s citizenship clause—which states that “all personsborn or naturalized in the United States, and subject to the jurisdiction thereof” are citizens andextends universal birthright citizenship to everyone born on US soil.
As a matter of policy, the order instructs the heads of departments and agencies to not issue or accept documents recognizing the citizenship of American children born after February 19 to undocumented mothers and those on temporary tourist, student, or work visas (unless the father is a citizen or legal permanent resident). As I previously reported, the move is part of a decadeslong push on the right to end birthright citizenship.
The executive order almost immediately prompted court challenges, setting in motion what is likely to be a prolonged legal battle that could make its way to the Supreme Court. On Wednesday, Judge Deborah L. Boardman, an appointee of President Joe Biden to the US District Court of Maryland, unmistakably rejected Trump’s efforts to rewrite the Constitution.
“The executive order conflicts with the plain language of the 14th Amendment, contradicts a 125-year-old binding Supreme Court precedent, and runs counter to our nation’s 250-year history of citizenship by birth,” she said. Upon granting a preliminary injunction halting the implementation of the order nationwide while the merits of the case are litigated, Boardman predicted Trump’s executive order would likely be found unconstitutional.
“We have stopped a great offense against our communities and against the Constitution of the country we live in,” said George Escobar, chief of programs and services at CASA, the plaintiff alongside the Asylum Seeker Advocacy Project and five pregnant women without lawful status suing the Trump administration over the executive order. “Because of their strength and their will to fight back in the face of deportations, in the face of unprecedented threats against who they are, they have accomplished an extraordinary victory today.”
The setback in Maryland was not the first for the Trump administration. Last month, a federal judge in Seattle ruled against the federal government in a case brought by four states: Washington, Arizona, Illinois, and Oregon. Calling the executive order “blatantly unconstitutional,” Judge John C. Coughenour, who was appointed by President Ronald Reagan, granted a temporary restraining order blocking the presidential action from taking effect for 14 days.
“I have difficulty understanding how a member of the bar would state unequivocally that this is a constitutional order,” he said. “It just boggles my mind.”
The plaintiffs in the Maryland case argued in a 38-page complaint that Trump’s executive order is a “flagrant violation” of the 14th Amendment and that the president doesn’t have “unilateral authority to override rights recognized in the Constitution or in federal statutes.”
During the hearing, Joseph Mead, lead attorney with Georgetown Law School’s Institute for Constitutional Advocacy and Protection, contended that Trump’s executive order “declared everyone’s been getting it wrong this whole time” and that the government’s position proposes a “reimagination” of the 14th Amendment.
The order “infringes upon the most fundamental constitutional right,” Mead said. “Being considered a citizen is the foundation for so many other rights. And it is causing real-world confusion, fear, harm for countless people today.”
In the aftermath of the Supreme Court’s 1857 ruling in Dred Scottv. Sandford that denied African Americans citizenship, the 14th Amendment was intended to expand birthright citizenship with narrow exceptions, including the children of foreign diplomats and of enemies in a hostile occupation. The Supreme Court’s landmark US v. Wong Kim Ark case of 1898 reaffirmed that, finding that a San Francisco–born son of Chinese immigrants who couldn’t naturalize due to Chinese exclusion laws was a citizen of the United States by birth.
On the other side, the government’s lawyer Eric Hamilton argued that the plaintiff’s claim was based on a “misreading” of the 14th Amendment and that framers didn’t mean to create a “loophole to be exploited by temporary visitors to the country and illegal aliens.”
The Justice Department argued Wong Kim Ark didn’t warrant a broad application of the 14th Amendment. Drawing from language in that decision, Hamilton claimed that the “subject to the jurisdiction thereof” clause implies a requirement that the parents be “domiciled” in and owe total “allegiance” to the United States in order for their children to not be excluded from birthright citizenship.
Boardman was skeptical, asking the government to provide legal precedents to support the president’s interpretation of the 14th Amendment. “Today, virtually every baby born on US soil is a US citizen upon birth,” the judge said. “That is the law and tradition of our country. That law and tradition are and will remain the status quo pending the resolution of this case.” She continued: “If anything, our system of government is improved by an injunction that prevents unconstitutional executive action.”
After the hearing, CASA general counsel Nick Katz welcomed the judge’s decision and expressed optimism that plaintiffs will prevail. “When you zoom out to look at this from a broader lens, the impact this executive order is having on pregnant mothers is terrible,” he said. “One of our plaintiffs has been in this country for 20 years, and President Trump is trying to say that if her children are born here, they’re not citizens, despite the fact that she has two other children who are citizens as the law has been applied and understood for hundreds of years. We’re happy to win this fight, but I think it’s part of a broader narrative of fear and assault on immigrant communities that is coming out of the White House, and we’re going to continue to fight against that.”
President Donald Trump made a promise with his mass deportation plan: First, we’ll remove the “criminals.” In doing so, he framed his fear-fueled immigration enforcement overdrive as a purge for public safety. But the evidence—from reports on the ground, available data, and precedent—points to a different direction: immigration raids’ numbers boosted by the arrest of immigrants who haven’t committed crimes.
“There is no way for the Trump administration to achieve any of its enforcement goals without targeting immigrants with no criminal histories,” noted Austin Kocher, who researches immigration enforcement. And that’s exactly what is happening. NBC News and NPR recentlyreported that scores of immigrants without criminal histories have been arrested.
“Nobody’s showing me that there are more convicted criminals. Nobody’s showing me that there are more removable people coming into custody.”
From the beginning, the idea of deporting “millions and millions of criminal aliens” was deceiving. For starters, there aren’t that many deportable undocumented immigrants with criminal records in the country. (Immigrants are less likely to commit crimes than US citizens.) Of the 7.6 million immigrants on US Immigration and Customs Enforcement’s national docket for potential deportation, the agency reported that about 8 percent had a conviction or pending charges. The most common offenses? Traffic-related, according to ICE’s data.
To deliver on the campaign promise of the largest deportation operation in US history, the Trump administration has had to scale up the stats. On January 27, Trump called for a “massive increase” in immigration detention capacity and a “record investment” in interior enforcement, including deportation flights. “We’re getting them all out,” Trump said in a speech from his Doral, Florida, resort outside Miami. “I won on that.”
By them, Trump meant criminals being returned to Colombia. He said, “Every one of them [is] either a murderer or a drug lord, a kingpin of some kind, the head of the mob or a gang member.” But this was not true. As it turns out, the 200 or so immigrants flown on two planes back to the South American country last week had no criminal history, according to Colombian officials. “They’re not criminals,” former Foreign Minister Luis Gilberto Murillo said in a video statement. He added: “Being a migrant is not a crime.”
How has the White House squared this? By labeling all undocumented immigrants as criminals, even though unlawful presence in the country is a civil, not criminal, violation. When asked for the number of ICE arrests conducted so far that have specifically targeted immigrants with criminal records, press secretary Karoline Leavitt said, “all of them,” adding, “because they illegally broke our nation’s laws, and, therefore, they are criminals.”
STATS Biden: 295 arrests/day in FY25 (Oct-Nov) -Trump: 626 arrests/day through Feb 3 Biden: 45 noncriminal arrests/day -Trump: ~300 noncriminal arrests/day Biden: 856 removals/day -Trump: 407 removals/day https://t.co/rYYEXro7Sd
The truth is that the plan has always relied on a much more expansive approach. From day one, Trump took steps to advance a no-one’s-off-the-table immigration enforcement policy. He revoked a Biden-era mandate setting priorities for ICE and rescinded guidance limiting the agency’s activity in or near hospitals, places of worship, and schools. The Washington Post also reported that Trump officials are instructing ICE to ramp up arrests by setting a performance quota of 1,200 to 1,500 daily arrests. In an effort to meet that threshold, as many have observed, ICE officers will likely be incentivized to go after people of all backgrounds.
“They are arresting more people today than last year, I believe them when they say that,” Jason Houser, who served as chief of staff for ICE during the Biden presidency, told me recently. “But nobody’s showing me that there are more convicted criminals. Nobody’s showing me that there are more removable people coming into custody.”
The first Trump administration policies, the Cato Institute reported, often led to the release of immigrants charged with or convicted of crimes.
In the words of border czar Tom Homan, who served as acting director of ICE during Trump’s first term, as you open the “aperture,” more “collateral arrests” will follow. “When you release a public safety threat out of a sanctuary jail and won’t give us access to them,” Homan said on CNN, “that means we got to go to the neighborhood and find them…others that don’t have a criminal conviction but are in the country illegally, they will be arrested, too.”
These so-called “collateral arrests” are hardly an exception. The initial days of the second Trump administration have mimicked the first days of his first presidency, which alsosaw a high proportion of immigrants rounded up by ICE who had no criminal convictions or whose most serious offense was drunk driving.
Looking into immigration enforcement data, Kocher, the researcher, found that “immigrants without criminal histories tend to drive the overall numbers of arrests, detentions, and deportations.” After Trump took office in 2017 and until the pandemic hit, the number of ICE arrests of noncriminals went up, while those of immigrants with criminal convictions declined. The first Trump administration policies, the Cato Institute reported, often led to the release of immigrants charged with or convicted of crimes.
“More immigration enforcement,” Kocher concluded, “always means, as a rule, more people without criminal convictions getting arrested and detained.”
A longer view of ICE arrests broken out by criminal and non-criminal similarly shows differences in arrest patterns, with immigrants with convictions leading overall until the pandemic, then swapping after the pandemic during the Biden admin.
A case in point is a George W. Bush-era nationwide immigration enforcement program known as Secure Communities. Later expanded by the Obama administration, it allowed federal immigration authorities to check the immigration status of everyone arrested by local law enforcement through the automated sharing of fingerprints with the FBI and ICE. (Facing pressure from immigrant communities and advocates, as well as resistance from local authorities, the Obama administration ultimately replaced Secure Communities with a narrower enforcement initiative. In 2017, Trump revived the program.)
“It introduced on a wide scale for the first time in the United States this idea that just being arrested can now lead to deportation,” said Chloe N. East, an associate professor of economics at the University of Colorado Denver, who has researched the effects of Secure Communities. “What we saw in practice is that was not a perfect targeting mechanism.”
Almost half a million immigrants were deported under Secure Communities from 2008 to 2014. Although the initiative was intended to target threats to public safety, there is little evidence that it accomplished that goal. About 17 percent of the people deported as part of the program hadn’t been convicted of a crime. And for those with a criminal conviction, 79 percent had committed a nonviolent offense.
Researchers also found that deportations under Secure Communities had no significant impact on reducing crime rates or making communities safer. Instead, East explained, the rate of crimes being reported to law enforcement went down. “Once local law enforcement agencies start getting involved in immigration enforcement activity,” she said, “it creates a lot of distrust and fear among the immigrant community about interacting with law enforcement at all.”
Broad enforcement activity, East said, “necessitates that we’re going to end up detaining and deporting people who are not the intended targets.”
On Wednesday afternoon, dozens of immigrants and allies gathered in Langley Park, Maryland, to celebrate a major win: A federal judge had just indefinitely blocked the Trump administration’s executive order undermining birthright citizenship. “The people united will never be defeated,” they chanted in Spanish. On the front row, mothers held their infant children.
On his first day back in office, Trump signed an executive order titled “Protecting the Meaning and Value of American Citizenship.” It challenges the established understanding that the 14th Amendment’s citizenship clause—which states that “all personsborn or naturalized in the United States, and subject to the jurisdiction thereof” are citizens andextends universal birthright citizenship to everyone born on US soil.
As a matter of policy, the order instructs the heads of departments and agencies to not issue or accept documents recognizing the citizenship of American children born after February 19 to undocumented mothers and those on temporary tourist, student, or work visas (unless the father is a citizen or legal permanent resident). As I previously reported, the move is part of a decades-long push on the right to end birthright citizenship.
The executive order almost immediately prompted court challenges, setting in motion what is likely to be a prolonged legal battle that could make its way to the Supreme Court. On Wednesday, Judge Deborah L. Boardman, a Biden appointee to the US District Court of Maryland, unmistakably rejected President Donald Trump’s efforts to rewrite the Constitution.
“The executive order conflicts with the plain language of the 14th amendment,” she said “contradicts a 125-year-old binding Supreme Court precedent, and runs counter to our nation’s 250-year history of citizenship by birth.” Upon granting a preliminary injunction halting the implementation of the order nationwide while the merits of the case are litigated, Judge Boardman predicted Trump’s executive order would likely be found unconstitutional.
“We have stopped a great offense against our communities and against the Constitution of the country we live in,” said George Escobar, chief of programs and services at CASA—the plaintiff alongside the Asylum Seeker Advocacy Project (ASAP) and five pregnant women without lawful status—suing the Trump administration over the executive order denying automatic citizenship to the US-born children of certain immigrants. “Because of their strength and their will to fight back in the face of deportations, in the face of unprecedented threats against who they are, they have accomplished an extraordinary victory today.”
Yesterday’s setback in Maryland was not the first for the Trump administration. Last month, a federal judge in Seattle ruled against the federal government in a case brought by four states—Washington, Arizona, Illinois, and Oregon. Calling the executive order “blatantly unconstitutional,” Judge John C. Coughenour, who was appointed to the federal bench by President Ronald Reagan, granted a temporary restraining order blocking the presidential action from taking effect for 14 days.
“I have difficulty understanding how a member of the bar would state unequivocally that this is a constitutional order,” he said. “It just boggles my mind.”
The plaintiffs in the Maryland case argued in a 38-page complaint that Trump’s executive order is a “flagrant violation” of the 14th Amendment and the president doesn’t have “unilateral authority to override rights recognized in the Constitution or in federal statutes.”
During the hearing, Joseph Mead, lead attorney with Georgetown Law School’s Institute for Constitutional Advocacy and Protection, contended that Trump’s executive order “declared everyone’s been getting it wrong this whole time,” and the government’s position proposes a “re-imagination” of the 14th amendment.
“[The order] infringes upon the most fundamental constitutional right,” Mead said. “Being considered a citizen is the foundation for so many other rights. And it is causing real world confusion, fear, harm, for countless people today.”
In the aftermath of the Supreme Court’s ruling in Dred Scott that denied African Americans citizenship, the 14th Amendment was intended to expand birthright citizenship, with all but narrow exceptions including the children of foreign diplomats and of enemies in a hostile occupation. The Supreme Court’s landmark Wong Kim Ark case of 1898 reaffirmed that, finding that a San-Francisco born son of Chinese immigrants who couldn’t naturalize due to exclusion laws was a citizen of the United States by birth.
On the other side, the government’s lawyer Eric Hamilton argued the plaintiff’s claim was based on a “misreading” of the 14th Amendment and that framers didn’t mean to create a “loophole to be exploited by temporary visitors to the country and illegal aliens.”
The Justice Department argued Wong Kim Ark didn’t warrant a broad application of the 14th amendment. Drawing form language in that decision, Hamilton claimed that the “subject to the jurisdiction of ” clause implies a requirement that the parents be “domiciled” in and owe total “allegiance” to the United States in order for their children to not be excluded from birthright citizenship.
The judge was skeptical, asking the government to provide legal precedents to support the president’s interpretation of the 14th Amendment. “Today, virtually every baby born on US soil is a US citizen upon birth,” Judge Boardman said. “That is the law and tradition of our country. That law and tradition are and will remain the status quo pending the resolution of this case.” She continued: “If anything, our system of government is improved by an injunction that prevents unconstitutional executive action.”
After the hearing, CASA’s general counsel Nick Katz welcomed the judge’s decision and expressed optimist that plaintiffs will prevail. “When you zoom out to look at this from a broader lens, the impact this executive order is having on pregnant mothers is terrible,” he said. “One of our plaintiffs has been in this country for 20 years and president Trump is trying to say that if her children are born here they’re not citizens despite the fact that she has two other children who are citizens as the law has been applied and understood for hundreds of years. We’re happy to win this fight but I think it’s part of a broader narrative of fear and assault on immigrant communities that is coming out of the White House and we’re going to continue to fight against that.”
Three days after Donald Trump’s second inauguration, White House press secretary Karoline Leavitt declared an early accomplishment: the arrest, and deportation, of hundreds of immigrants she alleged were convicted of crimes. “We’re getting the bad, hard criminals out,” Trump told reporters the next day.
This has been the refrain from all corners of the administration. On multiple TV appearances, Trump’s faithful border czar Tom Homan has described US Immigration and Customs Enforcement (ICE) operations taking place across the country as precisely orchestrated roundups of criminals. “I wouldn’t call them raids,” Homan told CNN’s Dana Bash. “They’re targeted enforcement operations. They know exactly who they’re looking for.”
“Nobody’s showing me that there are more convicted criminals.”
So far, the numbers tell a different story.
As NBC News first reported, almost half of the roughly 1,200 arrests ICE conducted on Sunday didn’t fall under “criminal arrests.” Instead, agents targeted hundreds of undocumented immigrants who had committed nonviolent crimes or had crossed the border in violation of immigration laws, which is a civil, not criminal, offense. And it didn’t take long for news to surface of US citizens getting caught in the dragnet and immigrants facing deportation as a result of routine traffic stops.
“They are arresting more people today than last year, I believe them when they say that,” says Jason Houser, who served as chief of staff for US Immigration and Customs Enforcement (ICE) during the Biden presidency. “But nobody’s showing me that there are more convicted criminals. Nobody’s showing me that there are more removable people coming into custody. Nowhere in the first 12 days have you seen one tangible step to fix the system.”
In an interview with Mother Jones on Thursday, Houser slammed the Trump administration’s immigration crackdown and explained why it would do little to improve public safety.
This conversation has been edited for length and clarity.
From what you’ve observed so far, has there been anything unprecedented about the scale or scope of these ICE operations compared to the previous administration? Or do they strike you as business as usual?
The media bluster. The steps I’ve seen over the first 12 days, ICE operations are just doing some collateral arrests to jack up the arrest number because that seems to be the narrative that the White House wants to give. They’re [saying] mass deportation has begun and here’s these arrests—and the media has lost its mind [with] these numbers that Trump keeps giving them. But flashy media hits and Kristi Noem in the Bronx doesn’t do anything.
What I see operationally is ICE staff being pulled from doing arrests in their home areas and condensed in these large cities for larger-scale operations for public media campaigns. That doesn’t help ICE do its work day to day. Strategically, I’ve seen probably the most anti-law enforcement steps, anti-public safety threats of any president.
How so?
We saw them do away with the [CHNV parole] pathway program at the border. That’s a law enforcement program that pre-vets people through law enforcement, national security data when they enter the asylum process. That’s more public safety. Now those people are going to go back to the border and potentially come illegally putting more pressure on border patrol.
And they’ve redeployed ATF, FBI, DOJ to not do national security and public safety, but to go out and arrest non-criminal migrants. That’s less public safety.
They also froze all the grants that support state and local law enforcement to counter drugs—homeland security grants, the things that fund rural law enforcement. How the hell is any of this helping to make us more safe?
Both the Obama administration, in its later days, and the Biden administration had enforcement priority policies in place instructing ICE to focus on public safety threats and immigrants with serious criminal convictions. What do we know about the Biden presidency’s record on detention and deportation of immigrants with criminal records?
During Biden, criminally convicted individuals coming to ICE for removal were gone. So the more volume of convicted serious, violent offenses that I have in custody the more likely I am to remove them. But ICE only has 11 planes that hold 135 seats, and each country allows for X number of flights per month. Some of them have restrictions. Based on that calculus, you bring people into custody that are removable: they have final orders and they are from a country that takes removals. And let’s make sure the biggest public safety threats are on those seats. I don’t know what the administration is doing now, because they’re not talking about that piece. What they’re talking about is the arrest piece. They’re ranking up the volume of potential arrests or bookings.
The Washington Post reported that ICE officials have been instructed to establish daily arrest quotas—between 1,200 and 1,500 in total, or 75 per field office. What effect do you expect that to have on the agency’s work and staff morale?
The men and women that I was proud to work with are used to being the political football. That’s the space this has become. No one’s looking for the real answers. They’re just looking for a quick political solution. It’s going to make ICE take more people into custody and take in fewer public safety threats. And potentially doing it just for show because a lot of them don’t have final orders [of removal] or are from countries we don’t have removal flights to. You’re just going to be taking up a lot of their time with stuff that is not going to keep us more safe.
You are making ICE’s job harder and they have the hardest job in law enforcement. That’s the part where I will defend them. ICE’s staff wants to go after violent criminals. There are people that are taking advantage of our system that they need to go get and that’s who they should be focused on.
Border czar Tom Homan often talks about how sanctuary cities obstruct ICE’s work and force agents to conduct operations in apartment buildings or other areas instead of jails, therefore causing more “collateral arrests.” What do you make of that assertion?
People keep calling Tom Homan the “border czar.” What the hell does he have to do with the border? He is a deportation coordinator.
Houser said the “operationalization of [Guantanamo Bay] is farcical” and just “drool bait for people who want to be punitive to migrants.”
There’s a middle path here that is getting lost. ICE can still go arrest people in sanctuary cities and do at-large arrests. They’re just not getting the information sharing from the law enforcement agency in that sanctuary area. And that does make ICE’s work harder. It takes up their resources when they could be going after other things. I think it’s a political back-and-forth right now.
On Wednesday, President Trump signed the Laken Riley Act into law. It requires mandatory detention for undocumented immigrants merely accused of theft, shoplifting, and other related crimes. What do you anticipate the impact to be on ICE’s work?
Remember, ICE only has so many beds. In Rhode Island, for example, they have 980 ICE beds. How do you want to use them? Do you want to have Providence call and say, “Hey, I have a convicted rapist with a final order. Do you want to tell me to get him and put him in that bed?” Or do you want ICE going out and there’s a guy that’s been checking in for 10 years, had a petty theft offense a decade ago, and now ICE has to mandatorily put him in that bed? So convicted rapist not in bed; a theft offender from 10 years ago is in a bed. And if I have to bring in people that I can’t remove [from countries that don’t take deportees back, for example], somebody’s going to have to come out of ICE custody. It’s upside down.
All it’s going to do now is exacerbate DHS resources where they’re going to have to cut things like transportation security, potentially reprogram money from the border, turn off cyber security activity.
President Trump also said that he would be sending 30,000 of the “worst criminal illegal aliens” to Guantanamo Bay. What did you make of that?
The operationalization of that is farcical. We have a Navy base that was built in the 60s and that’s dilapidated and we’re now going to ferry 30,000 migrants there to live in soft-sided tents? We’re going to remove them to where? Who’s going to house them? Who’s going to feed them? Who’s going to give them sanitation? And when a hurricane hits, who’s going to secure them? Where’s the staff going to live? What status do they have? This is drool bait for people who want to be punitive to migrants. You’re politicizing ICE’s work.
“They see everything as: Are we winning the media today?”
We didn’t demystify in the Biden years the work that ICE does that keeps people safe. We just made it kind of this thing we did and we had to keep it quiet. I think we have to show that if we’re able to go after violent offenders who are taking advantage of our immigration system, that’s going to keep an immigration system for those that really need it. With the displacement that we see across the Western Hemisphere, and the volume of people that are dealing with life-and death-situations in these countries, and the fact that we have a need for immigration into our country: we have to message this better.
What do you expect to see in the coming weeks and months as the Trump administration continues to push for more arrests and deportations?
If the view is in the near term that all they want to do is give the show of force, the punitiveness of the system, the dismantling of the immigration system, and how arrest and enforcement are going to deter people, you’re going to see more of that in different ways. Sooner or later, they’re going to go do work site raids at some chicken plants in Arkansas or meat processingplants in Kansas or Tennessee. Then they’re going to start doing a family separation, arresting the head of the household, and saying you can voluntarily remove yourself or we’re just going to remove the breadwinner of the family and we’re going to separate you. You’re going to see permutations of these ideas because they believe that that will stop encounters at the border.
I think you’re going to see an expansive use of state and local law enforcement. If they do invoke the Alien and Sedition Act, they’ll move military equipment into large cities and just have it it there as a show of force. Indicators of change are family arrests, family detention, more collateral arrests, and worksite raids.
They see everything as: Are we winning the media today? Right now their program is let’s go to Aurora [in Colorado], let’s do the road show of enforcement. When we have no more blue cities to do that in, then we’ll pull up the worksite raids. This is about a messaging campaign. They’re going to continuously show the drumbeat that they’re doing what they said they are. Some of this is not pro-law enforcement, it is not pro-public safety, it is not back the blue.
Trump’s first week back in office delivered what he does best: dystopian showmanship.
Photos of deportation flights released with glee; shots of the military deployed to the border to handle an “invasion” at its lowest levels in years. Immigration and Customs Enforcement (ICE) publishing on social media numbers of arrests and deportations (not that much greater than under the previous administration) like a scorecard. Department of Homeland Security Secretary Kristi Noem with a glamour shot in the New York Post doing a ride-along raid in New York City. Federal agents working with ICE on operations reportedly being told to be “camera ready” and wear tactical gear identifying their agency for the media. Trump talking about a migrant facility at Guantanamo Bay.
This blitz is more than just an indication of a real crackdown. It is the point in and of itself. The horrific spectacle of Trump’s mass deportation chimera produces one of the key goals: widespread terror.
Maybe the endgame is the elusive right-wing dream of “self-deportation.” Maybe it just gives the impression of “promise made, promise kept.” Either way, the administration will cheer the deportation machine the United States has long relied on as if Trump was the first to make use of it.
But the objective was accomplished. It caused fear. Reports of ICE activity in Chicago—and elsewhere—promptly created anxiety among immigrant communities.
Consider how on January 24, the White House account on X shared a photo of immigrants being loaded onto a cargo plane. “Deportation flights have begun,” Press Secretary Karoline Leavitt declared. “President Trump is sending a strong and clear message to the entire world: if you illegally enter the United States of America, you will face severe consequences.”
“This desire to popularize fear is unconscionable and abhorrent.”
Immigration experts and observers were quick to point out that deportation flights never stopped during the Biden administration. The novelty, American Immigration Council senior fellow Aaron Reichlin-Melnick noted, was the “PR” element of using a military aircraft. “This is utter propaganda,” he wrote, “and you have to make sure not to fall for it.” Tom Cartwright, an immigration activist who monitors ICE deportation flights, called it a “theater of the absurd.”
The shock and awe, as Lauren Carasik, a clinical professor of law and director of the Global Justice Clinic at Western New England University, writes in the Boston Review is meant to “ratchet up anxiety and overwhelm and disempower not only immigrants but the rights groups and even the faith-based and health care institutions that seek to protect them.”
In short: Fear is the goal.
The effect looks like immigrant families keeping children at home instead of sending them to school. From Colorado to Virginia, superintendents and principals have had to release statements and social media messages to reassure immigrant families.
“We’re already hearing stories of parents keeping their children home from school and families avoiding church services,” Vanessa Cárdenas, executive director of the pro-immigration reform America’s Voice, said in an email statement, “and we’re hearing the worries of leaders from essential industries, concerned about what the loss of workers in agriculture, construction, and health care will do to their workforce and our broader economy.”
To get the message across, the administration even had help from a TV personality. On Sunday, Phil McGraw, known as talk show host Dr. Phil, embedded with Trump’s faithful border czar Tom Homan, US Immigration and Customs Enforcement (ICE), and other federal agents during operations in Chicago. “It’s a pretty high risk mission that we’re going on,” McGraw says in a video for his MeritTV network. “This truly is a targeted ICE mission because they’re not sweeping neighborhoods like people are trying to imply.” (That day, ICE arrested 1,179 people nationwide, according to NBC News, almost half of whom were deemed “criminal arrests.”)
In another excerpt, McGraw can be seen grilling a man over whether he had been charged with sex crimes or been deported before. Afterward, he went on television to parrot Homan’s talking points, including that ICE’s raids are focused on public safety threats and sanctuary cities are to blame for broader enforcement operations. “Tom Homan’s intention is, if you’re in the country illegally,” he said, “you need to self-deport because if they catch you in the country illegally, you could be barred from coming back into the country before a number of years.”
Back in December, McGraw reportedly brokered a friendly meeting between Homan and New York City Mayor Eric Adams, after which, according to Gothamist, the Democrat said he would alter sanctuary city laws to give local authorities more latitude to cooperate with the federal government on immigration enforcement.
Illinois Democratic Sen. Dick Durbin called McGraw an “accomplice” and said having the TV host tag along with ICE “is dangerous and makes no sense.”
But the objective was accomplished. It caused fear. Reports of ICE activity in Chicago—and elsewhere—promptly created anxiety among immigrant communities. Advocates told Politico residents had been calling since the early morning to share what they thought were sightings of immigration officials in their neighborhoods.
“This desire to popularize fear is unconscionable and abhorrent,” Chicago Mayor Brandon Johnson said during a press briefing on Tuesday. Referencing McGraw’s stunt, he added: “We’re not entertained.”
This happened days after the Trump administration rescindedguidance that previously limited ICE activity in or near so-called “sensitive” locations, such as hospitals, places of worship, and schools. Officials at a Chicago elementary school even mistakenly reported the presence of ICE officers, before it was clarified that they were actually US Secret Service agents investigating a threat against an unnamed government official.
Trump and his aides will, no doubt, continue to try to ramp up and advertise arrests and deportations to quickly match the vision they sold of the largest deportation operation in US history. But they’re fully aware of the constraints to accomplish even one million deportations a year, including funding, detention space, personnel, and the finite universe of immigrants with serious criminal records to target.
Knowing they can’t easily deliver on mass deportation, Trump will want to make the public believe—especially those who could be potentially impacted—as if they can remove anyone and everyone. That terror will have real consequences.
For years, powerful right-wing figures have pushed a plan: Have states call a convention to amend the Constitution. It now has more momentum than ever, in part because it would allow a path for proponents of ending the 14th Amendment guarantee of birthright citizenship for the children of undocumented immigrants.
A provision in Article V of the Constitution states that if a majority of state legislatures petition Congress, there will be a convention to propose amendments. This would allow states to shape federal policy. But an Article V convention could also open the floodgates for other sweeping changes to be proposed and potentially ratified by states. (Constitutional law observers and critics of this idea have long warned of the risk of a “runaway convention” that throws away the Constitution and rewrites it from scratch.)
This once-fringe idea is gaining purchase among politicians and interest groups hoping to bypass congressional gridlock and advance contentious causes. It has been spoken of by President Donald Trump’s inner circle and MAGA-aligned conservative groups.
“I say do it,” former Republican presidential candidate Vivek Ramaswamy said of calling an Article V convention in an undated video shared in November by Convention of States Action, a dark money–fueled organization led by Tea Party veteranMark Meckler that is pushing states to ask Congress for a convention. “It’s going to be good for the country. I don’t know what’s going to come out of it, but I think that is a space that allows us to have the conversation that I care about: What does it mean to be American today?”
Calling an Article V convention, Ramaswamy once told homeschooling champion Michael Farris, co-founder of Convention of States Action and former CEO of the Alliance Defending Freedom, “will have a useful function for the country.”
Ramaswamy was particularly interested in using the convention as a way to discuss birthright citizenship. On his first day back in office, Trump signed an executive order attempting to end that right. Called “Protecting the Meaning and Value of American Citizenship,” if allowed by the courts, it would deny automatic citizenship to US-born children whose mother is unauthorized or on a temporary visa at the time of birth and whose father is neither a citizen nor a legal permanent resident.
As I’ve written before, the president can’t eliminate birthright citizenship through executive order without running afoul of the Constitution and more than a century of legal precedent. Indeed, the American Civil Liberties Union and other immigrant rights groups, as well as several states, already have filedlawsuits challenging the presidential action on constitutional grounds. On Thursday, a federal judge temporarily blocked Trump’s order, calling it “blatantly unconstitutional.”
If Trump’s plan to unilaterally reinterpret the Constitution with the stroke of a pen gets embroiled in or thwarted by protracted litigation—as it most likely will—a convention of states led by conservatives could serve as a fallback or a Hail Mary. “Birthright citizenship is enshrined in the Constitution,” says Stuart Richardson, research manager at the watchdog group Accountable.US. “We’re reaching a point where they’re becoming not unconstitutional, but anti-constitutional. They have to go so far as to amend the Constitution or completely throw it out and rework it because they can’t achieve their agenda based on even a layman reading of the Constitution.”
Ramaswamy has also reflected on the possibility of a free-for-all gathering to tinker the Constitution. In an interview with Shawn Ryan, a former Navy SEAL and one of the most popular podcasters in the country, he acknowledged the potential to “open Pandora’s box” and concluded, “I don’t think we’ve got to that point as a country yet.” Still, the project is increasingly closer to the mainstream and centers of power, having garneredsupport from some Trump Cabinet nominees, such as embattled defense pick Pete Hegseth and now-confirmed Secretary of State Marco Rubio. Convention of States Action is also a member of the advisory board for the Heritage Foundation’s Project 2025 mandate for a Trump comeback.
Launched in 2013 by Farris and Meckler, Convention of States Action describes itself as a grassroots movement to “bring power back to the states and the people.” Its publicly stated vision is for a convention thatwould only allow for amendments that “limit the power and jurisdiction of the federal government, impose fiscal restraints, and place term limits on federal officials.” But observers like Georgetown University constitutional law professor David Super have noted that the language is vague enough that it could conceivably encompass a wide range of measures.
In early December, Convention of States Action appeared to test the waters of public opinion by posting on X a survey asking respondents to weigh in on Trump’s proposal to end birthright citizenship. More than 80 percent of 543 voters agreed with the idea. Prior to that, in March 2024, the group published a blog post titled, “How a Convention of States Can Help Solve Our Border Crisis.” It advocates for calling a convention to transfer authority over immigration enforcement at the border from the federal government to the states. Proposed amendments, the article reads, “could cover the wet-foot dry-foot policy, disallowing birthright citizenship, and other immigration issues, [and] would force the Federal Government to act. If, for some reason, they do not, then the states would be free to defend their borders as they see fit, with safeguards to prevent abuse by said states.”
Among the endorsers of the organization’s mission is disbarred Trump attorney John Eastman, a longtime supporter of ending birthright citizenship.In a 2021 appearance on Newsmax, Eastman said an Article V convention was “the only remedy available” to contain the uncontrolled expansion of the federal government. A senior adviser of the group, former US Sen. Rick Santorum, proposed eliminating automatic citizenship for the children of undocumented immigrants as part of his 2016 presidential bid.
Convention of States Action didn’t respond to a request for comment about the group’s position on birthright citizenship or whether a convention of states could or should propose an amendment regarding that issue.
In 2023, Convention of States Action brought in around $10.6 million in revenue. About 30 percent of that—$3.2 million—came from one undisclosed donor, according to an audit report. Texas oil billionaire and Trump megadonor Tim Dunn sits on the board of directors of the organization. A friend of Meckler, Dunn is also a founding board member of its parent company, Citizens for Self-Governance, which has received significant contributions from donor-advised funds. (As I’ve written before, these funds distribute untraceable donations from anonymous sources and are a secretive catalyst for the money machine in politics.)
“When we started Convention of States and I was there at the beginning, I knew we had to have a spiritual revival, a Great Awakening, and a political restoration for our country to come back to its roots,” Dunn, a pastor who has built a powerful political machine in the Lone Star state to advance his theocratic agenda, said at the Convention of States summit in 2019. “What I did not expect is that Convention of States would be an organization that would trigger the Great Awakening, and that’s what’s happened, and it’s a miracle, and that is why we’re doing the Lord’s work if we go around it the right way.”
At a Novemberevent organized by the Dunn-backed Texas Public Policy Foundation, Heritage Foundation President Kevin Roberts threw his support behind Convention of States Action’s mission. “There’s a whole bucket of longer-term objectives we need to be thinking about,” he said, “and we just need to keep as a tool in our toolbox some equally radical ideas that are very sound and legitimate, like the convention of states. Just because Trump and [JD] Vance won doesn’t mean that we should give up on that project.” Roberts described the Heritage Foundation as a “sponsor” of Convention of States Action.
“What are they trying to get out of this?” says Tony Carrk, executive director of Accountable.US. “It’s imposing their agenda on the rest of America. That looks like taking away our rights.” For the billionaire class funding organizations like Convention of States Action, he adds, “there’s a short-term and long-term play. They have a friendly Congress and a friendly administration, but they’re also thinking about what 10 or 20 years look like down the road.”
Two-thirds of state legislatures—currently 34 states—must call for a convention for it to happen. (A proposed amendment would still have to be ratified by three-fourths of states.) To convince as many states as possible to join the cause, Convention of States Action has created a model resolution for state legislatures to adopt. So far, according to the group, 19 states have passed resolutions, with more like Republican-led South Dakota and Wyoming considering legislation.
Meanwhile, a Democratic state legislator in California is advocating for following in the footsteps of New Yorkin withdrawing previous applications for a convention, including one focused on gun control, over fear of opening the door of a convention for a Republican-controlled Congress. “I do not want California to inadvertently trigger a constitutional convention that ends up shredding the Constitution,” state Sen. Scott Wiener told the New York Times.
Constitutional law experts and public interest groups argue that the Constitution doesn’t offer concrete guidelines—nor are there any precedents—to govern the workings of a convention. Indeed, a 2016 congressional research report enumerates several open questions about how it would play out, including whether a convention could consider any issue beyond the scope of states’ requests, how delegates would be chosen, and what role, if any, the president might have. As Richardson of Accountable.US puts it, “We’re in totally uncharted territory.”
A federal judge in Washington state dealt the first blow to President Donald Trump’s aspirations of rewriting the Constitution and throwing away a century-old legal precedent in his quest to eliminate birthright citizenship.
On Thursday, Judge John C. Coughenour issued a four-page temporary restraining orderblocking Trump’s day-one proclamation denying automatic citizenship to children born on US soil to immigrants without legal status or on temporary visas.
“I’ve been on the bench for four decades,” the Ronald Reagan-appointed Seattle judge said in a hearing about the case brought by the state attorney generals of Washington, Arizona, Illinois, and Oregon, “I can’t remember another case where the question presented was as clear as this one is. This is a blatantly unconstitutional order. Where were the lawyers when this decision was being made?”
The citizenship clause of the 14th Amendment establishes that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” Although conservative scholars have long tried to make the case that the children of undocumented immigrants should be excluded from this provision, centuries of tradition, constitutional interpretation, and Supreme Court precedent guarantee automatic citizenship to anyone born in the United States, regardless of their parents’ immigration status.
In their lawsuit filed in the US District Court for the Western District of Washington, the states note that in 2022 more than 150,000 babies were born to both undocumented parents in the United States. “The individuals who are stripped of their United States citizenship,” they argued, “will be rendered undocumented, subject to removal or detention, and many will be stateless—that is, citizens of no country at all.”
The Department of Justice opposed the state’s request for a temporary order arguing they lacked standing to sue the federal government on the issue. On the merits of the case, the government stated that Trump’s executive order is “entirely consistent with the 14th Amendment’s text and history” and that “birth in the United States does not by itself entitle a person to citizenship.”
The DOJ also pointed to language in the Civil Rights Act of 1866—which predated the ratification of the 14th Amendment—that excluded from citizenship those “subject to any foreign power, excluding Indians not taxed” to offer an alternative read of the citizenship clause of the Constitution.
The government attorneys further tried to question a Supreme Court landmark ruling in the lesser-known Wong Kim Ark case from 1898 reaffirming the 14th Amendment’s guarantee of birthright citizenship. As I’ve written before, the justices delivered a 6-2 opinion determining that Wong Kim Ark, the San Francisc0-born son of Chinese immigrants was indeed a US citizen, regardless of his parents’ ancestry. Opponents of birthright citizenship for the children of undocumented immigrants claim the Supreme Court decision was wrongfully decided and only directly applied to the children of immigrants with lawful status.
The Seattle federal judge’s decision is an indication of the steep climb Trump’s assault on birthright citizenship will face. Several lawsuits have already been filed by immigrant rights groups and on behalf of expecting immigrant parents. But the Trump administration and opponents of birthright citizenship were probably anticipating that would be the case and they might even have a plan to take this issue back to the highest court in the land.
“We appreciated and wanted the challenges to this,” said GOP Rep. Brian Babin of Texas who recently sponsored a bill to codify Trump’s birthright citizenship executive order. “So we can get it into the Supreme Court of the United States. This thing could take up to three years before it winds up on the high court and let’s see how they [rule].”
The barrage has begun. On his first day in office, President Donald Trump signed a slew of executive orders aimed at reshaping immigration to the United States. He took various actions on top of the orders, too, affecting a wide range of aspects of the US immigration system, from indefinitely suspending refugee resettlement to summoning the military to perform border enforcement.
It has been hard to keep track of the already-chaotic push to end immigration as we know it. Trump ended the use of the Biden administration’s CBP One app and took away thousands of appointments for migrants and would-be asylum seekers. Flights for refugees already vetted and cleared to come to the United States have also been canceled, leaving many in limbo and even stranded in transit countries.
Among these, perhaps the most notable and disturbing development has been an aggressive, and seeming illegal, crackdown on access to asylum.
This week, the Trump administration has taken steps to effectively seal the southern border by declaring an “invasion” and invoking Section 212(f) of the Immigration and Nationality Act, which allows the president to, under certain circumstances, deny entry to foreigners if “detrimental to the interests” of the country. In one executive order titled “Guaranteeing the States Protection Against Invasion,” Trump references that authority to suspend “the physical entry of aliens involved in an invasion into the United States across the southern border until I determine that the invasion has concluded.”
“There is now no such thing as asylum at the US-Mexico border.”
The proclamation also bars migrants “posing threats to public health, safety, and national security,” preparing the terrain for a future travel ban. As a result, CBS Newsreported that Customs and Border Protection agents have been instructed to summarily deport migrants—including families with children—without allowing them the opportunity to ask for protection in the United States. “It’s like Title 42, but for everybody,” Adam Isacson, director of defense oversight at the Washington Office on Latin America, said in reference to the pandemic-era public health order the Trump administration previously relied on to shut down the border for most migrants.
Mother Jones spoke with Isacson about Trump’s executive orders and their impact on the asylum system and beyond.
On day one, Donald Trump signed about 10 executive orders related to immigration. What stood out to you from the bunch?
The first thing that jumped out at me was they are closing the border and refusing to process anybody who’s undocumented. I don’t think it will stand, but it is an enormous deal. Between the existing Biden administration rule from June and this new closure of the border—which, of course, includes the cancellation of the CBP One app—there is now no such thing as asylum at the US-Mexico border. Section 208 of the Immigration and Nationality Act might as well not exist. They have all but repealed it for the time being, pending challenges. People who need protection now just simply cannot get it.
Wrapped in with that is the restart of the “Remain in Mexico” program and the closure of the humanitarian parole program for Cubans, Haitians, Nicaraguans, and Venezuelans, which leaves more people in limbo. There’s also a deployment of 1,500 active-duty soldiers and Marines on their way to the border. The United States has a 150-year-old tradition of not using its military for law enforcement duties on US soil, but we’re about to really part with that and give the military, perhaps like we’ve already seen happen under Texas Gov. Greg Abbott’s command, the ability to confront civilians domestically.
Some of these executive orders invoke an authority under Section 212(f) of the Immigration and Nationality Act to essentially bar any migrant and asylum seeker from entering the country by claiming an “invasion.” Can you explain what that authority is and how the Trump administration is trying to use it?
It’s an incredibly broad authority, and it gives the president power to just deny or prohibit the entry of broad classes of foreign citizens. Trump used it for his famous Muslim ban, and [Joe] Biden has used it for his asylum ban on everybody who crosses improperly between ports of entry. One reason the Biden administration waited so long to implement that asylum ban was because the 9th Circuit [Court of Appeals] had ruled that the 212(f) ban does not cancel out the right to asylum once you’re on US soil. You can prevent people from entering, but if they’re actually physically here and they say, “I fear returning to my country,” 212(f) doesn’t let you just kick them out.
The way that the [Trump] executive order is squaring that illegality of kicking out asylum seekers who are on US soil is by claiming there’s an invasion. It seems like an all-purpose, break-the-law free card if they get away with it. This is [also] almost certainly laying the groundwork for a larger travel ban—not giving visas to [certain] countries, not letting people into airports. You could see this administration targeting Muslim-majority countries like it did in the past. You could also see them targeting countries whose governments don’t allow a lot of deportation planes to land, like China and India, if they want to play hardball.
How do you see the courts responding to this “invasion” argument?
The use of the Constitution’s article for invasion language to justify what they’re doing is incredibly broad and incredibly vague. It’s a legal theory that came out of a couple of Republican attorneys general and people in the Heritage Foundation orbit only around 2021 or 2022. Now they’re trying to claim that leaderless, stateless people with humanitarian needs are somehow the equivalent of an invading army. That is an incredibly wild legal theory. If courts actually defer to them and say the president gets to decide whether we’re under invasion or not, then the suspension clause of the Constitution lets them suspend habeas corpus, and they could just start arresting us if they don’t like us, without charge, because there’s an “invasion.”
In the nightmare, outlandish, worst-case, red team scenario, they can say that these 47,000 migrants coming to the border every month constitute an invasion. I don’t think they’ll try it, but it’s the same way [with] the Insurrection Act in the name of an invasion or just a disturbance of the public order, a president can bring in the military. If there’s future George Floyd-type protests, they can use combat-trained soldiers who have no law enforcement background to use maximum force against those protesters.
Those are two very big loopholes that could affect our basic freedoms anywhere, and in both cases, [you can see them] using the situation at the border as a pretext.
Does this strikes you as different from Trump’s first term?
They’re deliberately flooding the zone to keep us off balance, and they’re going for as much as they can get right off the bat. I imagine [they are] expecting to lose a lot of ground in court and in reality, but they’re trying for everything right now. They’re doing this at a time when Border Patrol apprehensions are way down. So it’s like they’re coming late to the emergency.
The Trump administration of the first couple of years, you had people like Stephen Miller and [former Acting Homeland Security Secretary] Chad Wolf running around, but you also still had General [John] Kelly and Kirstjen Nielsen, who was a career government person. You had some more grown-ups. Near the end of the Trump administration, from George Floyd to January 6, the lunatics really had taken over the asylum and it was getting a lot scarier. This is like that latter phase, but on steroids.
A federal judge in Washington state dealt the first blow to President Donald Trump’s aspirations of rewriting the Constitution and throwing away a century-old legal precedent in his quest to eliminate birthright citizenship.
On Thursday, Judge John C. Coughenour issued a four-page temporary restraining orderblocking Trump’s day-one proclamation denying automatic citizenship to children born on US soil to immigrants without legal status or on temporary visas.
“I’ve been on the bench for four decades,” the Ronald Reagan-appointed Seattle judge said in a hearing about the case brought by the state attorney generals of Washington, Arizona, Illinois, and Oregon, “I can’t remember another case where the question presented was as clear as this one is. This is a blatantly unconstitutional order. Where were the lawyers when this decision was being made?”
The citizenship clause of the 14th Amendment establishes that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” Although conservative scholars have long tried to make the case that the children of undocumented immigrants should be excluded from this provision, centuries of tradition, constitutional interpretation, and Supreme Court precedent guarantee automatic citizenship to anyone born in the United States, regardless of their parents’ immigration status.
In their lawsuit filed in the US District Court for the Western District of Washington, the states note that in 2022 more than 150,000 babies were born to both undocumented parents in the United States. “The individuals who are stripped of their United States citizenship,” they argued, “will be rendered undocumented, subject to removal or detention, and many will be stateless—that is, citizens of no country at all.”
The Department of Justice opposed the state’s request for a temporary order arguing they lacked standing to sue the federal government on the issue. On the merits of the case, the government stated that Trump’s executive order is “entirely consistent with the 14th Amendment’s text and history” and that “birth in the United States does not by itself entitle a person to citizenship.”
The DOJ also pointed to language in the Civil Rights Act of 1866—which predated the ratification of the 14th Amendment—that excluded from citizenship those “subject to any foreign power, excluding Indians not taxed” to offer an alternative read of the citizenship clause of the Constitution.
The government attorneys further tried to question a Supreme Court landmark ruling in the lesser-known Wong Kim Ark case from 1898 reaffirming the 14th Amendment’s guarantee of birthright citizenship. As I’ve written before, the justices delivered a 6-2 opinion determining that Wong Kim Ark, the San Francisc0-born son of Chinese immigrants was indeed a US citizen, regardless of his parents’ ancestry. Opponents of birthright citizenship for the children of undocumented immigrants claim the Supreme Court decision was wrongfully decided and only directly applied to the children of immigrants with lawful status.
The Seattle federal judge’s decision is an indication of the steep climb Trump’s assault on birthright citizenship will face. Several lawsuits have already been filed by immigrant rights groups and on behalf of expecting immigrant parents. But the Trump administration and opponents of birthright citizenship were probably anticipating that would be the case and they might even have a plan to take this issue back to the highest court in the land.
“We appreciated and wanted the challenges to this,” said GOP Rep. Brian Babin of Texas who recently sponsored a bill to codify Trump’s birthright citizenship executive order. “So we can get it into the Supreme Court of the United States. This thing could take up to three years before it winds up on the high court and let’s see how they [rule].”
The barrage has begun. On his first day in office, President Donald Trump signed a slew of executive orders aimed at reshaping immigration to the United States. He took various actions on top of the orders, too, affecting a wide range of aspects of the US immigration system, from indefinitely suspending refugee resettlement to summoning the military to perform border enforcement.
It has been hard to keep track of the already-chaotic push to end immigration as we know it. Trump ended the use of the Biden administration’s CBP One app and took away thousands of appointments for migrants and would-be asylum seekers. Flights for refugees already vetted and cleared to come to the United States have also been canceled, leaving many in limbo and even stranded in transit countries.
Among these, perhaps the most notable and disturbing development has been an aggressive, and seeming illegal, crackdown on access to asylum.
This week, the Trump administration has taken steps to effectively seal the southern border by declaring an “invasion” and invoking Section 212(f) of the Immigration and Nationality Act, which allows the president to, under certain circumstances, deny entry to foreigners if “detrimental to the interests” of the country. In one executive order titled “Guaranteeing the States Protection Against Invasion,” Trump references that authority to suspend “the physical entry of aliens involved in an invasion into the United States across the southern border until I determine that the invasion has concluded.”
“There is now no such thing as asylum at the US-Mexico border.”
The proclamation also bars migrants “posing threats to public health, safety, and national security,” preparing the terrain for a future travel ban. As a result, CBS Newsreported that Customs and Border Protection agents have been instructed to summarily deport migrants—including families with children—without allowing them the opportunity to ask for protection in the United States. “It’s like Title 42, but for everybody,” Adam Isacson, director of defense oversight at the Washington Office on Latin America, said in reference to the pandemic-era public health order the Trump administration previously relied on to shut down the border for most migrants.
Mother Jones spoke with Isacson about Trump’s executive orders and their impact on the asylum system and beyond.
On day one, Donald Trump signed about 10 executive orders related to immigration. What stood out to you from the bunch?
The first thing that jumped out at me was they are closing the border and refusing to process anybody who’s undocumented. I don’t think it will stand, but it is an enormous deal. Between the existing Biden administration rule from June and this new closure of the border—which, of course, includes the cancellation of the CBP One app—there is now no such thing as asylum at the US-Mexico border. Section 208 of the Immigration and Nationality Act might as well not exist. They have all but repealed it for the time being, pending challenges. People who need protection now just simply cannot get it.
Wrapped in with that is the restart of the “Remain in Mexico” program and the closure of the humanitarian parole program for Cubans, Haitians, Nicaraguans, and Venezuelans, which leaves more people in limbo. There’s also a deployment of 1,500 active-duty soldiers and Marines on their way to the border. The United States has a 150-year-old tradition of not using its military for law enforcement duties on US soil, but we’re about to really part with that and give the military, perhaps like we’ve already seen happen under Texas Gov. Greg Abbott’s command, the ability to confront civilians domestically.
Some of these executive orders invoke an authority under Section 212(f) of the Immigration and Nationality Act to essentially bar any migrant and asylum seeker from entering the country by claiming an “invasion.” Can you explain what that authority is and how the Trump administration is trying to use it?
It’s an incredibly broad authority, and it gives the president power to just deny or prohibit the entry of broad classes of foreign citizens. Trump used it for his famous Muslim ban, and [Joe] Biden has used it for his asylum ban on everybody who crosses improperly between ports of entry. One reason the Biden administration waited so long to implement that asylum ban was because the 9th Circuit [Court of Appeals] had ruled that the 212(f) ban does not cancel out the right to asylum once you’re on US soil. You can prevent people from entering, but if they’re actually physically here and they say, “I fear returning to my country,” 212(f) doesn’t let you just kick them out.
The way that the [Trump] executive order is squaring that illegality of kicking out asylum seekers who are on US soil is by claiming there’s an invasion. It seems like an all-purpose, break-the-law free card if they get away with it. This is [also] almost certainly laying the groundwork for a larger travel ban—not giving visas to [certain] countries, not letting people into airports. You could see this administration targeting Muslim-majority countries like it did in the past. You could also see them targeting countries whose governments don’t allow a lot of deportation planes to land, like China and India, if they want to play hardball.
How do you see the courts responding to this “invasion” argument?
The use of the Constitution’s article for invasion language to justify what they’re doing is incredibly broad and incredibly vague. It’s a legal theory that came out of a couple of Republican attorneys general and people in the Heritage Foundation orbit only around 2021 or 2022. Now they’re trying to claim that leaderless, stateless people with humanitarian needs are somehow the equivalent of an invading army. That is an incredibly wild legal theory. If courts actually defer to them and say the president gets to decide whether we’re under invasion or not, then the suspension clause of the Constitution lets them suspend habeas corpus, and they could just start arresting us if they don’t like us, without charge, because there’s an “invasion.”
In the nightmare, outlandish, worst-case, red team scenario, they can say that these 47,000 migrants coming to the border every month constitute an invasion. I don’t think they’ll try it, but it’s the same way [with] the Insurrection Act in the name of an invasion or just a disturbance of the public order, a president can bring in the military. If there’s future George Floyd-type protests, they can use combat-trained soldiers who have no law enforcement background to use maximum force against those protesters.
Those are two very big loopholes that could affect our basic freedoms anywhere, and in both cases, [you can see them] using the situation at the border as a pretext.
Does this strikes you as different from Trump’s first term?
They’re deliberately flooding the zone to keep us off balance, and they’re going for as much as they can get right off the bat. I imagine [they are] expecting to lose a lot of ground in court and in reality, but they’re trying for everything right now. They’re doing this at a time when Border Patrol apprehensions are way down. So it’s like they’re coming late to the emergency.
The Trump administration of the first couple of years, you had people like Stephen Miller and [former Acting Homeland Security Secretary] Chad Wolf running around, but you also still had General [John] Kelly and Kirstjen Nielsen, who was a career government person. You had some more grown-ups. Near the end of the Trump administration, from George Floyd to January 6, the lunatics really had taken over the asylum and it was getting a lot scarier. This is like that latter phase, but on steroids.
On his first day back in office, President Donald Trump signed around 10 executive orders to restrict immigration to the United States. “With these actions, we will begin the complete restoration of America and the revolution of common sense,” he said during his inauguration speech. “It’s all about common sense.”
The promises, many pushed by top advisor Stephen Miller, were striking. Trump vowed to declare a “national emergency” and “send troops” to the US-Mexico border (even though border crossings have reached a low point at the end of the Biden administration), among other major actions. Asylum seekers and refugees will feel the consequences. And the executive orders are bound to get caught in legal fights.
Here’s a recap of Trump’s day-one executive orders on immigration:
Birthright Citizenship
True to his campaign promise, Trump did issue an order to go into effect in 30 days to deny citizenship to certain US-born children if the mother does not have legal status or is on a temporary visa at the time of birth and the father is not a US citizen or legal permanent resident. That may sound complex. But the reality is simple: If Trump gets his way, no longer does being born in the US mean you’re a citizen.
It didn’t take long for immigrant rights groups and several states to file lawsuits challenging the executive for violating the 14th Amendment of the constitution—and more than a century of legal precedent—that guarantees birthright citizenship. (We have written about the long crusade to kill birthright citizenship before.)
Refugees and Asylum Seekers
Trump signed a blanket suspension on the resettlement of refugees until it “aligns with the interests of the United States.” That suspension will go into effect on Monday, January 27 and last at least four months. It also mandates that states and local jurisdictions should have a larger role in the resettlement process. Alongside the suspension, Trump is bringing back the so-called “Remain in Mexico” policy: forcing tens of thousands of asylum seekers and migrants to wait in dangerous US-Mexico border towns as their cases go through the backlogged immigration courts. His administration also ended the use of the Biden-era CBP One phone application for asylum seekers to present at the border lawfully. (Appointments were canceled as a result, leaving thousands of people stranded.) Finally, he cited extraordinary presidential authorities to declare an “invasion” at the border and allow government officials to “repel, repatriate, or remove” migrants, including asylum seekers.
Family Separation
As part of an executive order to protect “the American people against an invasion,” Trump revoked several presidential actions taken during the Biden administration. That includes an executive order that established a Department of Homeland Security task force to work on the reunification of families that had been separated at the border during the first Trump administration. As of March 2024, the task force had helped 795 children reunite with their parents. As I have reported, many families are still separated seven years later.
Mass Deportation
Many of Trump’s executive orders boost the detention and deportation apparatus his administration would need to conduct mass deportations. That includes the US military. Trump has declared a “national emergency” at the southern border in an effort to unlock federal authorities and additional resources and called on the Armed Forces—including reserves and the National Guard—to help the Department of Homeland Security with immigration enforcement. It also instructs the Department of Defense to provide support in the form of detention space and transportation airplanes.
Alien Enemies Act
Trump is moving to designate drug cartels and certain gangs—such as MS-13 and Tren de Aragua—as foreign terrorist organizations. This action prepares the terrain for Trump to invoke the Alien Enemies Act of 1798 to expedite detentions and deportations without due process. During his inauguration speech, the president said he would use this wartime statute to unleash the “full and immense power of federal and state law enforcement” against what he calls an “invasion.”
Despite the breadth and depth of these presidential actions, this is just the beginning. The Trump administration is also upending the immigration system in hard-to-track ways: He has already fired several top officials in charge of the Department of Justice’s Executive Office for Immigration Review that oversees the immigration courts, where there are an estimated 3.7 million pending cases. Trump also revoked a policy by the Biden administration discouraging US Immigration and Customs Enforcement (ICE) from arresting immigrants “in or near protected areas” such as schools, hospitals, and churches.
The federal government is on the attack. The administration has further signaled it will attempt to defund sanctuary cities and deny grants to organizations offering services to immigrants. It will also double down on cooperation agreements between ICE and local and state sheriffs and police departments. States and local authorities can still stand up to Trump’s mass deportation plans. That will require key Democratic officials to take a stance. Notably, New York Mayor Eric Adams attended Trump’s inauguration and later sat down for an interview with Tucker Carlson, instead of fighting back.
Samuel Anthony turns his phone camera around to show me the view from his family home in Sierra Leone. He steps out to a veranda overlooking a carpet of lush green trees dotted with houses that merge with the ocean in the distance.
“This is how the majority of people live in Sierra Leone,” Anthony tells me, pointing nearby to “pan body” single structures made of zinc. “In America, we call them camper homes.”
The landscape, we both agree, is breathtaking. “But that doesn’t help you financially,” he says.
When his mother passed away in 2021, Samuel Anthony couldn’t be there for the funeral.
Anthony may have been born in West Africa, but the United States is what he knows. Now 52, he left Sierra Leone in 1978 at the age of 6 with his older sister to join their parents, who had crossed the Atlantic looking for better education. Hegrew up in Washington, DC, in the 1980s, around the city’s then–red light district of 14th Street—a world away from where he finds himself more than four decades later.
In 2019, during the first Trump administration, Anthony was one of almost 360,000 immigrants deported that year. He had a decades-old drug conviction. Five years later, the president-elect is set to return to the White House vowing to supercharge mass deportation by the millions.
“When people have killed and murdered,” Trump toldNBC News of his mass deportation plans, “when drug lords have destroyed countries, and now they’re going to go back to those countries because they’re not staying here.”
Trump touts his deportation agenda as necessary to root out violent criminals. But chances are those targeted by the Trump administration will be people like Anthony, long-time residents who have some type of criminal record and baggage from an imperfect American life. (In fact, recent US Immigration and Customs Enforcement (ICE) data shows the most common offenses committed by immigrants on the agency’s radar are traffic-related.)
“I didn’t come to America in hopes of becoming a drug dealer and being a bad person,” he says. “Just life, elements of things, not understanding myself put me in a negative spiral. My life spiraled out of control and I was never able to get back on the right track.”
Days before Trump’s inauguration, Anthony fears he might not have a chance to come back. “I never wanted to be here,” Anthony says. “I never looked like this would be my final resting spot in my life.”
Anthony’s childhood years as a new immigrant in Washington, DC, weren’t easy. In his mind, he was American. The world told him otherwise. “It wasn’t a period of what we call Kumbaya,” Anthony says, “everybody holding hands and singing a song. It was a very hostile era in America, just like we’re going through now with immigration.”
He remembers being bullied in school and struggling to fit in or make friends. “I wanted to be a part of American society,” he recalls. He felt at home and yet denied acceptance. “All I know is these American cities. All I know is Washington, DC.”
When Anthony was about 7 years old, he was sexually abused by a doctor. It wasn’t until later in life that he realized how what happened had affected him. “I have a difficult time trusting people,” he told me.
At the height of the drug era in the US capital, Anthony got involved with drugs. He started carrying weight-loss pills for other people and later began to sell crack cocaine and use PCP. His addiction led him to drop out of college.
“I’ve just been falling and falling inside the pit and never seem to get the right footing.”
Anthony had a couple of run-ins with the police. In 1991, after intervening in a fight, he was badly beaten and taken to the hospital, where the police searched him and found drugs. Five years later, Anthony was arrested and pleaded guilty to drug offenses. He was sentenced to almost 20 years. At the 15-year mark, after Congress passed the Fair Sentencing Act to address racial disparities, he was released early.
Upon his release, ICE picked Anthony up and transferred him to a detention center. He didn’t know his drug conviction would impact his immigration status, but he lost the green card he had gotten in 1989, and was put in deportation proceedings.
Because the US government couldn’t obtain his travel documents from Sierra Leone, they couldn’t deport him. Instead, ICE determined Anthony wasn’t a threat or a flight risk and released him in 2012 under an order of supervision that required him to report to the agency regularly.
Anthony started rebuilding his life. He obtained a commercial driver’s license and began working for a trucking company while also driving for Uber and Lyft. He bought a house and reconnected with family, including his daughter Samantha, whose childhood he had missed while in prison. He also started a mentoring program to help formerly incarcerated people.
After Trump took office, in 2017, Anthony’s order of supervision became stricter. He was made to wear an ankle bracelet and had more regular check-ins with immigration. One day in July 2019, Anthony went in for what he thought was just another routine ICE appointment. But instead of letting him go, Anthony says the agents put him in a conference room, threw him on a table, and arrested him. He was blindsided.
Sarah Gilman, co-founder of the Rapid Defense Network, a legal nonprofit focused on detention and deportation defense that has joined forces with the Robert F. Kennedy Human Rights organization, unsuccessfully tried to halt Anthony’s deportation in the courts, arguing it was illegal among other reasons because he had a pending case for a U visa—a special protection for undocumented victims of crimes who cooperate with law enforcement. (The Trump administration dropped a guidance encouraging ICE to not deport U visa applicants.)
“Historically, people like Samuel who have criminal convictions,” Gilman says, “even though they serve their time and they’ve [been] quote-unquote rehabilitated…they are often unusually subject to double punishment.” She adds: “What happened during Trump 1.0 was that everybody became a bad immigrant.”
ICE kept Anthony detained until December 2019. Then, they put him on a plane to Morocco and from there to Sierra Leone. He landed in the middle of the night and all he could see was darkness. Anthony remembers wishing he could walk into the ocean and never come back out.
“That’s what’s been happening for the last 22 years of my life,” he says. “I’ve just been falling and falling inside the pit and never seem to get the right footing.”
In Sierra Leone, Anthony has struggled with depression and health problems, including bouts of malaria, stomach issues, and weight loss. His status as a deportee who doesn’t speak the local dialect makes finding a job hard and leaves him prey to extortion. When his mother passed away in 2021, he couldn’t be there for the funeral.
“It was heart-wrenching for my mother,” Anthony’s older sister Samilia says, “to the point that I think it contributed to her depression and ultimate passing.”
She hopes her brother’s story can make people reconsider how they view the immigration system. “It’s just not right,” Samilia says. “Even if you have committed a crime, you’ve paid your dues. If America didn’t want those people, then maybe they should just send them home directly instead of having them be incarcerated for 15 years and then after that send them to nothing.”
Anthony’s lawyers have requested that ICE joins in a motion to reopen his deportation case and dismiss it so that he can have his legal permanent resident status restored. In an October letter in support of Anthony’s petition addressed to the Department of Homeland Security (DHS) Secretary Alejandro Mayorkas and the acting director of ICE, former Attorney General Eric Holder wrote he should not have to “be held hostage to the federal government’s unpredictable shifts in immigration policy.”
Anthony is also applying for humanitarian parole to try to return to the United States while the Biden administration is still in office, but time is against him.
“If Samuel does not come home before Trump comes into power,” Gilman says, “he will never come home over the next four years. And I don’t know if Samuel will survive in Sierra Leone.”
Anthony has no idea how to start over almost 4,500 miles away from the only place he has ever called home. “Here, I don’t feel [a] sense of peace,” he says. “I feel chaos. I see confusion. I see pain. I see myself broken. It’s not easy.”
“You promised to end birthright citizenship on day one,” Kristen Welker asked. “Is that still your plan?”
“Yes,” Trump responded, “absolutely.”
Welker pushed back, reminding Trump that the 14th Amendment’s Citizenship Clause dictates that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” When asked if he would work around the amendment, Trump said, “Well, we’re going to have to get it changed or maybe have to go back to the people. But we have to end it.”
As I’ve previously reported here and here, Trump actually can’t end birthright citizenship with the stroke of a pen. That would likely be ruled unconstitutional.
But he and his immigration restrictionist allies have a decades-long playbook to question the Citizenship Clause they can borrow from:
[F]or years, immigration restrictionists have continued to advocate for amending or reinterpreting the 14th Amendment, charging that birthright citizenship serves as a “magnet” for unlawful immigration and so-called “birth tourism.” Specifically, they argue that children of undocumented immigrants are not “subject to the jurisdiction” of the United States because of their parents’ irregular status.
Trump also indicated his administration would have no qualms about conducting sweeping mass deportation campaigns, even if it means removing American citizens alongside their undocumented family members. “I don’t want to be breaking up families,” Trump told Welker, “so the only way you don’t break up the family is you keep them together and you have to send them all back, even kids who are here legally.”
In a second Trump presidency, opponents of birthright citizenship might also try to renew attacks on a Supreme Court precedent affirming the widely accepted interpretation of the 14th Amendment to include all US-born children, regardless of their parents’ immigration status.
In the 1898 Wong Kim Arkcase, the justices found that a San Francisco-born child of long-time Chinese immigrants was, indeed, a US citizen.
“The 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory,” Justice Horace Gray wrote for the majority, “including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory.”
Some legal experts and observers have noted that Trump and his allies could attempt to latch onto that last sentence of the landmark Supreme Court ruling as a loophole to attack birthright citizenship. Under that strategy, they might resort to the far-fetched claim that large migrant flows to the US-Mexico border constitute an “invasion” of the United States and, therefore, the children of unauthorized immigrants should be excluded from the 14th Amendment’s guarantee of birthright citizenship.
Critics of ending birthright citizenship for the US-born children of undocumented immigrants argue it would not only constitute bad policy, but also a betrayal of American values and, as one scholar put it to me, a “prelude” to mass deportation.
“It’s really 100 years of accepted interpretation,” Hiroshi Motomura, a scholar of immigration and citizenship at UCLA’s law school, told me of birthright citizenship. Ending birthright citizenship would cut at the core of the hard-fought assurance of equal treatment under the law, he said, “basically drawing a line between two kinds of American citizens.”
During the Meet the Press interview, President-elect Trump also lied about the United States being the only country in the world that has birthright citizenship, which has been easily and widely debunked.
In August 2015, Donald Trump sat down to talk with then–Fox News host Bill O’Reilly about one of his central campaign promises: the mass deportation of 11 million undocumented immigrants. “Our country is going to hell,” Trump said. “We have to start a process where we take back our country.”
O’Reilly found the plan ridiculous. Such a colossal and expensive undertaking, the conservative host said, would take decades. Before then, the courts would stop sweeping raids. The idea, O’Reilly continued, was just “not going to happen.” Perhaps the most obvious reason why, he said, was the 14th Amendment, which “says if you’re born here, you’re an American—and you can’t kick Americans out.” O’Reilly almost screamed at one point: “If you’re born here, you’re an American—period! Period!”
Trump was unconvinced. “Many lawyers are saying that’s not the way it is,” he insisted. The incoming president’s view then, and now, is that the American children of undocumented immigrants should not be entitled to automatic citizenship. And, if prompted to weigh in on this issue, he thought the courts would agree.
“I’d much rather find out whether or not ‘anchor babies’ are actually citizens,” Trump said, “because a lot of people don’t think they are.”
The first Trump administration didn’t test this theory. The second one likely will. The former president has made the end of birthright citizenship a cornerstone of his immigration agenda and mass deportation plan. Automatic citizenship for the children of undocumented immigrants, Trump said in a campaign video from May 2023, “is based on a historical myth and a willful misinterpretation of the law.”
In his next term, Trump will aim to dispute more than a century of legal precedent and deal a blow to a bedrock constitutional understanding of what it means to be an American citizen. He cannot change everything with the stroke of a pen. But Trump can—and says he will—begin the long task of dismantling birthright citizenship. There is a playbook, decades in the making.
The process would begin with a presidential action. Couching it as an attempt to tackle the threat of an “illegal foreign invasion” in the form of unlawful migration, Trump has promised to sign an executive order on day one that would challenge birthright citizenship. The proposed rule would instruct federal agencies to deny passports and Social Security numbers to children born to immigrants, unless one of the parents is a citizen or green card holder. Crucially, his candidacy platform stated, the executive order would “explain the clear meaning of the 14th Amendment.”
The 14th amendment’s Citizenship Clause establishes that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” Ratified after the Civil War to nullify the Supreme Court’s Dred Scott v. Sandforddecision, which ruled that Black Americans couldn’t be citizens of the United States, it defined citizenship and enshrined the long-standing doctrine of jus solis (“right of soil”)—meaning citizenship by place of birth—in constitutional law.
While the president-elect can’t end birthright citizenship for the US-born children of undocumented immigrants with an executive order alone, he can conceivably set up a legal challenge to the reigning interpretation. As Trump hinted at in the 2015 interview with O’Reilly, he and his allies might look at the courts to do their bidding. And they have a playbook for it: undermine the lesser-known Supreme Court landmark decision in the 1898 Wong Kim Arkcase reaffirming the guarantee of citizenship to virtually everyone born in the United States.
For years, opponents of birthright citizenship for the children of unauthorized immigrants have toyed with the possibility of overturning the Wong Kim Ark precedent. Increasingly, such a line of attack seems less hypothetical—especially in light of a Supreme Court conservative supermajority that has demonstrated a willingness to undo their major rulings, like Roe v. Wade, regardless of what the political repercussions and real-life consequences might be.
Inviting the Supreme Court to revisit Wong Kim Ark, explains Robert L. Tsai, a professor of constitutional law at Boston University, “would give the Trump administration the opportunity to ask the court to either overrule or narrow” the well-established legal precedent. “You’ve got a president and a bunch of people around him who disagree fundamentally with notions of citizenship and how they’ve been done for a very long time,” he says. “We’re going to find out just how far they can push those changes.”
It would be nothing short of seismic. “It’s really 100 years of accepted interpretation,” Hiroshi Motomura, a scholar of immigration and citizenship at UCLA’s law school, told me of birthright citizenship. Ending birthright citizenship would cut at the core of the hard-fought assurance of equal treatment under the law, he said, “basically drawing a line between two kinds of American citizens.”
To understand how an attack on birthright citizenship could be mounted, let alone prevail, it’s important to know what stands in the way of it.
Wong Kim Ark was careful. Before he departed California in 1894—boarding a steamship to visit his parents in the Guangdong province of China—Kim Ark ensured he had all the required documents to return. Born in San Francisco in the 1870s to immigrants of humble means—who resettled in China after several years of permanent residence in America—Kim Ark had made the trip before without much trouble. In one of those travels to the family’s ancestral home, in 1889, he married Yee Shee, with whom he would have four children.
But this time, anti-Chinese animus, violence, and laws were on the rise. In 1882, the US Congress passed the Chinese Exclusion Act. The law barred the naturalization of Chinese nationals and the immigration of laborers from China, who were perceived as a threat to the white working class. It marked the first federal restriction on immigration explicitly based on race.
As Carol Nackenoff and Julie Novkov detail in their 2021 book, American by Birth: Wong Kim Ark and the Battle for Citizenship, Kim Ark, who worked as a cook from an early age, carried with him an affidavit signed by three white men as witnesses to prove he had been born in California. Still, when he arrived at the San Francisco port aboard the Coptic in August 1895, a customs collector by the name of John Wise denied him entry. Kim Ark washeld offshore for five months.
Departure Statement of Wong Kim Ark.National Archives
Wise, known for his anti-Chinese bias, considered himself a “zealous opponent of Chinese immigration.” He made it exceedingly difficult for even those exempted from the ban—such as merchants, diplomats, and teachers—to be allowed into the United States. Once, Wise evenwrote a poem mocking a Chinese man he had ordered deported that read, “So just to make this poor Wong Fong feel very good and nice, I’ve sent him back to China where he can eat his mice.”
At the time, anti-Chinese exclusionists had been looking for a test case to challenge birthright citizenship. They considered Chinese Americans incapable of assimilating. But the law had been clear that did not matter. A federal court had ruled just a few years earlier that a 14-year-old born in California to Chinese immigrants—who had been barred by customs officials—was a citizen under English common law and the 14th Amendment. In Kim Ark, they thought they had found an opportunity to set a different legal precedent.
With help from the Chinese Six Companies organization and lawyer Thomas Riordan, Kim Ark filed a habeas corpus petition challenging his confinement and defending his right to reenter the United States as a recognized native-born citizen. “Think of all the people in this country who have been born of parents who owed allegiance to either Great Britain, Germany, Italy, or some other European power,” Riordan argued in court. “Are all of these people to be declared not citizens?”
His goal beyond helping Kim Ark, Nackenoff and Novkov write, was to “have the broad principle of citizenship settled for all time.”
On behalf of the federal government, US District Attorney Henry S. Foote made the case that Kim Ark had become a citizen by “accident of birth” and his “education and political affiliations remained entirely alien to the United States.” Because Wong’s parents were ineligible for naturalization and “subjects of the Emperor of China,” the argument went, Kim Ark himself was “by reason of his race, language, color and dress, a Chinese person.”
A district court judge disagreed, finding that “it is enough that he was born here, whatever was the status of his parents” and that a ruling against Kim Ark, would have resulted in countless people “denationalized and remanded to a state of alienage.”
The government appealed and the case went before the Supreme Court. Delivering a 6–2 decision in March 1898, the justices determined that Kim Ark was indeed a citizen, regardless of his parents’ ancestry. “The 14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory” Justice Horace Gray wrote for the majority, “including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory.”
To exclude “from citizenship the children, born in the United States, of citizens or subjects of other countries,” the opinion continued, “would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.”
Chief Justice Melville Fuller dissented, arguing that the 14th Amendment didn’t “arbitrarily make citizens of children born in the United States of parents who, according to the will of their native government and of this Government, are and must remain aliens.”
Nonetheless, the majority’s understanding of the 14th Amendment provided, in no uncertain terms, that birthright citizenship extended to the children of immigrants, even those unable to naturalize. The case had little repercussion in the press at the time and its details have probably eluded many Americans since. Kim Ark and his sons even continued to encounter a myriad of obstacles when traveling in and out of the United States in the ensuing years. But had it not been for Wong Kim Ark, University of New Hampshire historian Lucy Salyer told the Post in 2018, the United States would not be a nation of immigrants, but rather “colonies of foreigners.”
Most legal scholars consider the issue of birthright citizenship settled law. They agree that the key language of the Citizenship Clause—“subject to the jurisdiction”—carves out only two exceptions: the children of foreign diplomats and Native Americans under tribal rule. (In 1924, Congress extended citizenship to all Native Americans born in the country.)
But for years, immigration restrictionists have continued to advocate for amending or reinterpreting the 14th Amendment, charging that birthright citizenship serves as a “magnet” for unlawful immigration and so-called “birth tourism.” Specifically, they argue that children of undocumented immigrants are not “subject to the jurisdiction” of the United States because of their parents’ irregular status.
Trump attorney John Eastman has said, being born on US soil is not sufficient to confer automatic citizenship. That right should be contingent on “a total and exclusive allegiance” to the United States. In a 2018 Washington Post op-ed, former Trump national security official and Hillsdale College lecturer Michael Anton made the case that Congress could “clarify legislatively that the children of noncitizens” are not citizens under the 14th Amendment.
In the absence of congressional action, some on the right believe Trump should take matter into his own hands. “Judges faithful to their oaths will have no choice but to agree with him,” Anton wrote. “Birthright citizenship was a mistake whose time has gone.” For modern-day critics of birthright citizenship for the US-born children of undocumented immigrants, undermining or, at least, circumventing the well-established legal precedent in Wong Kim Ark could be the way to set things in motion.
Opponents like Anton and Eastman haveargued that the justices’ ruling in Wong Kim Ark merely applied to the children of legal immigrants like Kim Ark’s parents and never directly addressed the question of those born to unauthorized noncitizens. Attacking the Wong Kim Ark decision as “erroneous and overly-broad,” Eastman has urged the courts to revisit or limit its interpretation.
Rogers M. Smith, a University of Pennsylvania political science professor and co-author of Citizenship Without Consent: Illegal Aliens in the American Polity, is part of a minority of constitutional scholars who share that perspective. “It makes no reference whatsoever for the status of unauthorized aliens, which is why I think it doesn’t address that topic,” he told me. “Lots of people think it does by implication, but that’s clearly an argument that could be challenged.”
How the justices would respond to it is anyone’s guess. During the confirmation hearing of Justice Samuel Alito in 2006, Sen. Chuck Schumer of New York asked the nominee if he agreed that “all persons mean all persons” according to the 14th Amendment and if a statute to deny citizenship to the US-born children of undocumented parents would be constitutional. Alito did not respond one way or the other, but nodded at “active legal disputes about the meaning of that provision.” If the question came before him as a sitting justice, he said on the occasion, it could “turn out to be a compelling argument or a frivolous argument or something in between.” More recently, Justice Amy Coney Barrett declined to opine on the matter.
Because Wong Kim Ark is overwhelmingly considered good law, the Trump administration could also try to work around it. Instead of arguing that the case should be overruled, they could refer to a specific line in the decision: the exemption of children “of enemies within and during a hostile occupation.” Per that reasoning, unauthorized immigrants could be declared perpetrators of an “invasion” of US territory and their children excluded from the birthright citizenship guarantee under the 14th Amendment.
“It’s kind of an ugly analogy,” Smith says, “but that doesn’t mean the Supreme Court won’t accept it.” He attributes the untested argument to a changed political context in which “conservative judges on the bench have opened the doors for right-wing constitutional arguments that were previously viewed as beyond the pale, as too extreme.”
And they might have already found an opening. Judge James C. Ho, who Trump appointed to the ultraconservative 5th Circuit and is thought to be a contender for a vacant seat in the Supreme Court, recently appeared to signal he would consider this theory against birthright citizenship—in what observers have flagged as a notable departure from his previously unflinching endorsement of the accepted understanding and a not-so-subtle effort to prove his loyalty to Trump.
“Birthright citizenship is guaranteed by the 14th Amendment,” Judge Ho wrote in 2006. “That birthright is protected no less for children of undocumented persons than for descendants of Mayflower passengers.” He added: “Text, history, judicial precedent, and Executive Branch interpretation confirm that the Citizenship Clause reaches most US-born children of aliens, including illegal aliens.”
But in an interview with conservative law professor Josh Blackman, Judge Ho suggested there is “a direct connection between birthright citizenship and invasion.” He was alluding to the idea that migrants coming to the United States constitute an “invasion,” a largely dismissed theory advanced by Gov. Greg Abbott of Texas and others to justify states taking extraordinary actions to crackdown on migration. “Birthright citizenship obviously doesn’t apply in case of war or invasion. No one to my knowledge has ever argued that the children of invading aliens are entitled to birthright citizenship,” Judge Ho said.
“Effectively, what he’s saying is that even though there’s a guarantee of birthright citizenship,” explains Evan Bernick, an assistant professor of law at Northern Illinois University and co-author of The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit, “the president can kind of turn it off by declaring an invasion and try to remove whoever he says is invading…It’s not even a loophole, it swallows the entire guarantee.” The fact that Trump referred to a foreign invasion in his campaign video, he adds, suggests they might be anticipating litigation and trying to “boost as much as possible their very minimal odds.”
In combination with a touted denaturalization program, it could be a “prelude” to mass deportation. “Even if this ultimately dies in the sense that a majority of the Supreme Court ultimately rejects it,” Bernick says, “it’s worth taking both literally and seriously. It’s not something that can be laughed off in the way that the proposition that a 33-year-old is eligible for the presidency can be laughed off. It’s real. It’s serious. These people believe it and they’re not just doing it because they think Trump wants it. There’s a real constitutional conviction on the part of the people who argue this.”
A growing number of law enforcement authorities and Democratic leaders across the country are speaking out about their plans to thwart one of President-elect Donald Trump’s top immigration priorities: Mass deportation. Taking lessons from the first four years of the Trump era, many have vowed to stand their ground and refuse to cooperate with federal law enforcement in arresting undocumented immigrants. They are also preparing counter-lawsuits to have ready to take the incoming administration to court as soon as officials attempt to begin deportations, which they’ve promised to kick off on day one.
In interviews with Politico published Saturday, prosecutors in six Democratic-led states described their plans to pursue legal challenges against actions Trump may take to carry out his immigration agenda.
These include the potential deployment of the US military domestically to find undocumented people, violations of immigrants’ rights to due process, the withholding of funds from s0-called sanctuary cities, and attempts to deputize the National Guard from red states to carry out arrests and detentions in blue ones.
These prosecutors said they’re also preparing to fight scenarios where the administration tries to send immigration agents into schools and hospitals, or where they withhold federal funds from local law enforcement to force them into compliance with deportation plans.
Earlier this week, Trump reaffirmed his plans to declare a national emergency in order to use federal troops to round-up targets for deportation.
“If he’s going to want to achieve that type of scale, the largest deportation in US history, as he says, by definition he’s going to have to target people who are lawfully here and … go after American citizens,” Matthew Platkin, New Jersey’s attorney general told Politico, likely referring to the fact that millions of undocumented people live with US citizens, including those whose children were born on American soil. Those children would have to leave the country with deported parents in order for families to stay together. “We’re not going to stand for that,” Platkin added. The goal of top prosecutorsacross blue states, the president of the Democratic Attorneys General Association Sean Rankin toldABC News, is to put up a “unified front” against Trump’s immigration agenda.
The Trump administration will inevitably face not only legal but logistical obstacles if they attempt to deliver on the promise of conducting an unprecedented mass deportation campaign. As Dara Lind with the American Immigration Council recently wrote in the New York Times, deporting one millionundocumented immigrants per year—a fraction of the estimated 11 million living in the country—would cost an annual $88 billion. The limited number of detention beds and immigration courts’ years-long backlog will also inhibit a massive crackdown.
Still, Tom Homan, Trump’s new “border czar,” who won’t require Senate confirmation, has indicated the administration will push hard against jurisdictions that get in their way. “If we can’t get assistance from New York City,” Homan told Fox News recently, “we may have to double the number of agents we send to New York City. Because we’re going to do the job. We’re going to do the job without you or with you.” And in fact, Homan has a history of pushing forward extreme immigration policies: As a US Immigration and Customs Enforcement (ICE) official during Trump’s first term, he was the architect of the “zero tolerance” policy that separated thousands of parents from their children at the border. To this day, manyhave not been reunited.
Several Democratic leaders have publicly said they won’t go along with mass deportation efforts. Massachusetts Gov. Maura Healey, who sued the Trump administration 100 times as attorney general, said they would use “every tool in the toolbox” to protect the state’s population. In a statement, a spokesperson for the Rhode Island State Police said while they cooperate with ICE, “they are not immigration officers and will not expend any time and resources to support mass deportation efforts.”
Top prosecutors in states like Massachusetts are also trying to dispel the unsupported claims, repeatedly reinforced by Trump, that immigrants are more prone to committing crimes. Instead, according to Politico‘s reporting, they hope to make the case that mass deportation would be bad for the US economy. As I’ve previously reported, the mass deportation of undocumented workers would drastically reduce the GDP, make inflation rise, and even result in fewer jobs available for American citizens.
Continuing the string of MAGA loyalist picks to serve in his administration, President-elect Donald Trump on Friday evening tapped Russell Vought to serve as director of the Office of Management and Budget—again. Vought, a self-avowed Christian nationalist and key contributor to the Heritage Foundation’s Project 2025 agenda for a conservative presidency, led OMB during Trump’s first term, transforming the powerful agency—charged with developing and executing the federal budget, and reviewing executive branch regulations—into a vehicle to deliver on the president’s wildest dreams.
In a recent appearance on Tucker Carlson’s show on X, in which the former Fox News host said he was “very likely to run OMB again,” Vought described the agency as the “nerve center of the federal government, particularly the executive branch.” He recounted having provided Trump with a plan to divert funding from the Department of Defense to fund his border wall without congressional approval, a move disavowed by the White House counseland later ruled illegal. “Presidents use OMB to tame the bureaucracy, the administrative state,” Vought said, characterizing it as “the president’s most important tool to deal with the bureaucracy.”
Vought described what kind of person would be best suited to wield the power of this agency on behalf of President Trump. “What you need is people who are able to absorb political heat,” he told Carlson. “They don’t have a fear of conflict. They can execute under withering enemy fire. They are up to speed and they are no-nonsense in their own ability to know what must be done. And they’re unbelievably committed to the president and his agenda.” Vought also advocated for doing away with the notion ofindependent agencies, singling out the Department of Justice as a target.
Vought most recently led the conservative Center for Renewing America, which he has described as a “shadow” OMB outside the government. He is a big proponent of reviving an executive order from the final days of the first Trump administration that would upend the federal workforce in service of Trump’s goals. Known as Schedule F, the order would reclassify potentially thousands of career civil servants working in policy-related positions as at-will employees and strip them of job protections, making it easier for political appointees to fire them and fill the openings with candidates hand-picked to support MAGA priorities.
At OMB, Vought tried to reclassify almost 90 percent of the agency’s workforce as at-will employees, hoping to set an example for other government heads. As a former OMB worker and author of Trump and the Bureaucrats: The Fate of Neutral Competenceput it to me, Vought’s first round leading the agency was nothing short of “traumatic.”
Inside the Trump administration, Vought came across as fiercely dedicated to the America First cause, even if it meant a colossal increase in the federal debt. Trump was prone to outbursts, but to Vought that aggression equaled power. Vought made it his mission to weaponize OMB on behalf of the president, who had long perceived the civil service bureaucracy as an obstacle to his haphazard rule. “We view ourselves as the president’s Swiss Army Knife,” he once said. “How do you come up with options that work and then talk through the pros and cons?” Vought interpreted his job as being inside Trump’s head—a “keeper of ‘commander’s intent.’”
And that appears to be the same approach Vought plans to take when restored to his old job next year. In previously undisclosed videos of 2023 and 2024 private speeches obtained by ProPublica, Vought talked about wanting the “bureaucrats to be traumatically affected,” adding they should “not want to go to work” when waking up in the morning. “We want to put them in trauma.”
He also suggested creating a “shadow Office of Legal Counsel” to enable a crackdown on anti-Trump dissent. “We want to be able to shut down the riots and not have the legal community or the defense community come in and say, ‘That’s an inappropriate use of what you’re trying to do.” A new Trump administration,” Vought declared, “must move quickly and decisively.”
A growing number of law enforcement authorities and Democratic leaders across the country are speaking out about their plans to thwart one of President-elect Donald Trump’s top immigration priorities: Mass deportation. Taking lessons from the first four years of the Trump era, many have vowed to stand their ground and refuse to cooperate with federal law enforcement in arresting undocumented immigrants. They are also preparing counter-lawsuits to have ready to take the incoming administration to court as soon as officials attempt to begin deportations, which they’ve promised to kick off on day one.
In interviews with Politico published Saturday, prosecutors in six Democratic-led states described their plans to pursue legal challenges against actions Trump may take to carry out his immigration agenda.
These include the potential deployment of the US military domestically to find undocumented people, violations of immigrants’ rights to due process, the withholding of funds from s0-called sanctuary cities, and attempts to deputize the National Guard from red states to carry out arrests and detentions in blue ones.
These prosecutors said they’re also preparing to fight scenarios where the administration tries to send immigration agents into schools and hospitals, or where they withhold federal funds from local law enforcement to force them into compliance with deportation plans.
Earlier this week, Trump reaffirmed his plans to declare a national emergency in order to use federal troops to round-up targets for deportation.
“If he’s going to want to achieve that type of scale, the largest deportation in US history, as he says, by definition he’s going to have to target people who are lawfully here and … go after American citizens,” Matthew Platkin, New Jersey’s attorney general told Politico, likely referring to the fact that millions of undocumented people live with US citizens, including those whose children were born on American soil. Those children would have to leave the country with deported parents in order for families to stay together. “We’re not going to stand for that,” Platkin added. The goal of top prosecutorsacross blue states, the president of the Democratic Attorneys General Association Sean Rankin toldABC News, is to put up a “unified front” against Trump’s immigration agenda.
The Trump administration will inevitably face not only legal but logistical obstacles if they attempt to deliver on the promise of conducting an unprecedented mass deportation campaign. As Dara Lind with the American Immigration Council recently wrote in the New York Times, deporting one millionundocumented immigrants per year—a fraction of the estimated 11 million living in the country—would cost an annual $88 billion. The limited number of detention beds and immigration courts’ years-long backlog will also inhibit a massive crackdown.
Still, Tom Homan, Trump’s new “border czar,” who won’t require Senate confirmation, has indicated the administration will push hard against jurisdictions that get in their way. “If we can’t get assistance from New York City,” Homan told Fox News recently, “we may have to double the number of agents we send to New York City. Because we’re going to do the job. We’re going to do the job without you or with you.” And in fact, Homan has a history of pushing forward extreme immigration policies: As a US Immigration and Customs Enforcement (ICE) official during Trump’s first term, he was the architect of the “zero tolerance” policy that separated thousands of parents from their children at the border. To this day, manyhave not been reunited.
Several Democratic leaders have publicly said they won’t go along with mass deportation efforts. Massachusetts Gov. Maura Healey, who sued the Trump administration 100 times as attorney general, said they would use “every tool in the toolbox” to protect the state’s population. In a statement, a spokesperson for the Rhode Island State Police said while they cooperate with ICE, “they are not immigration officers and will not expend any time and resources to support mass deportation efforts.”
Top prosecutors in states like Massachusetts are also trying to dispel the unsupported claims, repeatedly reinforced by Trump, that immigrants are more prone to committing crimes. Instead, according to Politico‘s reporting, they hope to make the case that mass deportation would be bad for the US economy. As I’ve previously reported, the mass deportation of undocumented workers would drastically reduce the GDP, make inflation rise, and even result in fewer jobs available for American citizens.