Mass deportations look set to become the new “Defund the police,” a catchy sounding, absolute and un-implementable solution to messy and long-standing problems. That is not to say that the Trump Administration will find some groups procedurally easy to deport, like the 1.3 million with final orders of deportation from immigration court. But as we will see soon, legal and operational issues loom large and will generate high costs even if they can be solved.1
Since there is no plan yet, merely speculation and spitballing by interested parties, we’ll limit this post to high-level issues. But a key one, and weirdly absent from most discussions, is why the fixation with forcing out illegal immigrants the hard way, as in locating and rounding them up and shipping them somewhere else, supposedly where they came from? It should be obvious that this is operationally very difficult, even before getting to the large legal impediments.
The much simpler way is to make it very very difficult for these migrants to get paid work, and in a more draconian version, make it hard for them to get driver’s licenses that were valid nationally. That is less hard than it might seem. And it would have the merit of targeting a root cause, that of employers being willing to hire, as in exploit, undocumented laborers.
This approach would be far from comprehensive (we’ll sketch out possible approaches below), but it would likely have a much faster impact than a controversial, cumbersome, and costly deportation scheme. And it would have the second-order effect of making the US much less appealing to economic migrants, who by all accounts constitute the great majority of undocumented arrivals.
Of course, one could take the cynical view that the mass deportation scheme is meant to fail. Trump has to recall well the simpler and easier to execute idea of a border wall did not get done. A successful mass deportation scheme (and our lighter-touch analogue) would deprive a lot of businesses of cheap workers, particularly in nasty jobs like the meatpacking industry and ones like construction, where new migrants provide a flexible labor pool. My conservative-watching contacts say the alternative of targeting employers and workplaces is well known as a way to seriously dent employment of undocumented workers. But aside from occasional raids, there’s not been much willingness to go there due to the expected, loud outcries from the rule-breaking business operators.
A related issue is how to reduce entry at the Mexico border. “Reducing entry” is very much in the “ounce of prevention is worth a pound of cure” category, since as we will see soon, anyone on US soil has Constitutional due process rights.
What Are Some of the Deportation Ideas Under Consideration?
Since these plans are being formulated, we’ll use a weekend Wall Street Journal story, Trump Advisers Ramp Up Work on Mass Deportation Push, for a current reading. Note the proposal are overlapping. They include:
Declaring a national emergency to allow for the use of “military assets.” That would also allow for the immediate use of Pentagon funds, which could
Fund building that wall
Allow for using bases and military equipment, along with service members, to help with detention and removal
Reversing the Biden policy of leaving illegal immigrants who had not committed crimes alone
Improving Immigration Court procedures to expedite cases
Hiring more Federal agents
The American Immigration Council has estimated the outlay for a full-bore deportation program at $968 billion due among other things to increased need for manpower, detention locations, and transportation, particularly planes to cart migrants to home countries. There don’t yet seem to be competing tallies from conservatives.
Trump is unapologetic about a possible nose-bleed price tag. He could point out that the annual run rate is lower than for supporting the Ukraine war under Biden. Some details from the Journal about procedural details and issues:
Officials from Trump’s first administration have also written draft executive orders to resume construction of the border wall and revise President Biden’s existing restrictions on asylum at the southern border to remove the humanitarian exemptions. They are planning to enter aggressive negotiations with Mexico to revive the Remain in Mexico policy, a person working on Trump’s transition said, and are identifying potential safe third countries where asylum seekers could be sent.
They also want to revoke deportation protections from millions of immigrants who have either been granted a form of humanitarian protection known as temporary protected status—which covers hundreds of thousands of Haitians and Venezuelans—or entered the country on a quasi-legal status called humanitarian parole. That population includes millions who have entered via government appointments at the southern border, as well as tens of thousands of Afghans evacuated after the fall of Kabul and hundreds of thousands of Ukrainians allowed into the U.S. following the Russian invasion….
Rather than forcibly deporting all migrants, Trump’s advisers hope they can induce some to leave voluntarily, according to people familiar with the matter. They have discussed offering immigrants in the country illegally—or those who entered on parole through Biden administration programs—a chance to leave the country without penalties, so they can return on a visa if they are eligible. Under normal circumstances, when someone is deported, they are barred from returning on a visa for 10 years.
It is striking that this article ignores the elephant in the room, the Constitutional due process rights of all immigrants. It depicts a remark by a Congressional Ultra as wanting to get rid of the above-mentioned “deportation protections” like temporary protected status, when his remark clearly covers the much bigger barrier of the right to court hearings as a precondition to deportation. Again from the Journal:
Rep. Chip Roy (R., Texas), an anti-illegal-immigration hard-liner, said he thinks the Trump administration should disregard those deportation protections because, in his view, they were issued illegally.
“I believe we need to push the boundaries and claim they’ve got no status,” he said.
We’ll turn to that issue in the next section.
The Journal does address the “sanctuary cities” problem, but oddly not by name:
Trump struggled during his first term to deport large numbers of migrants, particularly those living in blue states that cut off cooperation with the federal government. In addition to a huge infusion of cash, mass deportations would require unprecedented coordination among federal, state and local officials.
Last time, Trump not only lacked Republican control of both houses, but also considerable opposition from within the party. If Trump were to use the “national emergency” route, it seems likely that the Federal authority would supersede that of states and cities, as in the military or Federal policing bodies could remove immigrants in sanctuary cities over their objections. Of course, the lack of state and local police help would indeed make the effort much harder.
It might also be possible for the Feds to punish uncooperative states and municipalities. There’s plenty of precedent for the national government withholding funds to jurisdictions that failed to comply with Federal mandates, see for instance, CMS withholds another $1-plus million over vaccine mandate compliance. The case here was Florida for not requiring Federal healthcare workers to get Covid shots. Having said that, I’m not sure these holdbacks have ever been big enough to cause sufficient pain so as to change behavior.
The other aspect that hasn’t get gotten the consideration it warrants is the very bad authoritarian look of an aggressive implementation of these measures. It allow Dems to stoke fears that the intellectual elites would be the next to be herded into of Cultural Revolution camps. What if, say, Team Trump tries to encourage Stasi-level spying by paying bounties for valid and usable reports of where illegal immigrants live and work? Will freedom-cheering conservatives sign up happily for a bulked-up police state apparatus?
The Due Process Impediments to Deportation
For starters, “due process” means cases have to be handled individually, and the defendant has the right to a court. And everyone who is in the US has that right. This is why the Republicans are so keen to enlist Mexico to help prevent entry, and to focus on the low-hanging fruit of the 1.3 million who have outstanding deportation orders.
The basics, from Clearwater Law Group:
The Constitution protects all people living in the United States, regardless of immigration status. Most constitutional provisions apply based on personhood, not citizenship. In other words, if an individual is physically present in the US, they are entitled to the protections granted by the Constitution. This includes the right to due process and equal protection under the law.
The Fifth Amendment, for example, states that “No person shall be deprived of life, liberty, or property, without due process of law.” And the Fourteenth Amendment uses the Due Process Clause that describes the legal obligation of all state governments to provide equal protection of the laws to all persons, regardless of immigration status. So while undocumented immigrants are not specifically mentioned in the Constitution, they are still protected by its principles.
Savvy readers might point to the gaps between theory and practice, like the way CBP too often harasses Americans returning from abroad who have engaged in wrong-think by questioning them and even seizing their electronic devices.2
A key decision is the Supreme Court’s Reno v. Flores, with the underlying case first filed in 1985 and settled in 1997, addressing the poor treatment of immigrant children.3 There has been continued legal wrangling over the settlement, including the expansion of the ambit of Flores, which was initially limited to unaccompanied minors, to extend the maximum 20 days in detention to families with children.
Even the Biden Administration sought to escape from Flores. From a May 2024 CNN story:
The Biden administration moved Friday to terminate a decades-old agreement that governs conditions for migrant children in government custody, according to a court filing, which argues that the settlement was meant to be temporary.
The 1997 Flores settlement, as the agreement is known, requires the government to release children from government custody without unnecessary delay to sponsors, like parents or adult relatives, and dictates conditions by which children are held. The Health and Human Services Department is charged with the care of unaccompanied migrant children.
The Biden administration has previously signaled that it planned to end the Flores agreement, instead preparing a federal regulation that, the administration argues, “faithfully implements” the requirements spelled out in the settlement, provides additional protections and responds to “unforeseen changed circumstances since 1997.” The regulation was published in late April….
But immigration attorneys have expressed concern over the lack of outside oversight if the Flores settlement is terminated.
“If the government were to prevail in its motion, HHS would no longer be bound by the Flores settlement. As Flores counsel, we would no longer be able to interview children in HHS custody, or file motions to enforce when the rights guaranteed by Flores are denied to children in HHS custody,” said Neha Desai, senior director of immigration at the National Center for Youth Law.
Operational Impediments to Deportation
Many readers may not know that ICE is not so much in the business of rounding up suspected illegal immigrants as collecting them from police. From BBC:
Most immigrants already in the country enter into the deportation system not through encounters with Immigration and Customs Enforcement (Ice) agents but through local law enforcement.
However, many of the country’s largest cities and counties have passed laws restricting local police co-operation with Ice….Deportations of people arrested in the US interior – as opposed to those at the border – have hovered at below 100,000 for a decade, after peaking at over 230,000 during the early years of the Obama administration.
“To raise that, in a single year, up to a million would require a massive infusion of resources that likely don’t exist,” Aaron Reichlin-Melnick, policy director at the American Immigration Council, told the BBC.
For one, experts are doubtful that Ice’s 20,000 agents and support personnel would be enough to find and track down even a fraction of the figures being touted by the Trump campaign.
Mr Reichlin-Melnick added that the deportation process is long and complicated and only begins with the identification and arrest of an undocumented migrant.
After that, detainees would need to be housed or placed on an “alternative to detention” programme before they are brought before an immigration judge, in a system with a years-long backlog.
Only then are detainees removed from the US, a process that requires diplomatic co-operation from the receiving country.
“In each of those areas, Ice simply does not have the capacity to process millions of people,” Mr Reichlin-Melnick said.
I am a bit leery of depending so much on a single ultimate source, the American Immigration Council, but so far no other organization seems to have taken a granular look at what a mass deportation operation would entail. Note just one factoid from the short overview below, that even if the Trump Administration gets to the point of deporting migrants, some countries won’t take them back:
I don’t think people understand how insane Trumps mass deportation plan is. pic.twitter.com/bMOgK2XCja
— Mac (@GoodPoliticGuy) November 8, 2024
Why Not the Easy Way: Targeting Employment?
Yours truly is at a loss to understand why the Trump teams seems to be taking the mass deportation idea to heart, when as some have pointed out, Trump should be taken seriously but not literally. Admittedly, a conservative contact contends that, particularly in light of business community opposition to losing too many cheap workers, all that is likely to happen is a marked tightening up of entry at the southern border, plus a serious campaign to deport criminals.
The much easier way to get many undocumented migrants to leave is to make it very hard for them to get work. There are many ways to do that, like occasionally raiding employers in areas that use a lot of illegal immigrants and increasing the sanctions on those establishments (bigger fines and even criminalization). But one route would be much tighter enforcement of the rules requiring employers to have a Social Security Number for anyone paid over $590 a year.
As I read the Social Security Administration rules of issuance, categories like temporary protected status and humanitarian parole are not eligible. Knowledgeable readers please pipe up. From the Social Security Numbers for Noncitizens:
What do I need to submit to the Social Security office?
You need to prove your identity and work- authorized immigration status.
To prove your identity and work-authorized immigration status, show us your current U.S. immigration documents and your unexpired foreign passport. Acceptable immigration documents include your:
• Form I-551 (Lawful Permanent Resident Card, Machine- Readable Immigrant Visa).
• Form I-94 (Arrival/Departure Record).
• Form I-766 (Employment Authorization Document/EAD).
• Admission stamp showing a class of admission permitting work.
Other sections at the Social Security Administration site seem to confirm this cursory reading,4 but even if not, it would be easier for a Trump Administration to tighten up Social Security Number issuance rules than implement many of measures needed for a muscular deportation scheme.
Some crackdowns could start immediately, such as on employers who submit SSNs that have been used multiple times.5 Lambert has also joked that Vance should be tasked to enforcing OSHA rules at meatpacking plants so that they are safe enough that Americans would be willing to work there.
Of course, someone who was imaginative and determined could also go after driver’s licenses, that ones that were valid outside the issuing state could be issued only to citizens or those in particular visa categories. Even though that might only have limited practical impact, it would reinforce the message that undocumented immigrants were facing an increasingly hostile bureaucratic regime.
Needless to say, the obvious route of targeting employers either directly via raids or indirectly by Social Security number would put the focus of who benefits from the current lax immigration regime. And we are already seeing “But the economy!” howling. One predictable venue is CNBC:
During the campaign, Trump pledged to end the Temporary Protected Status that allows workers from select countries to come to the U.S. to work. If some of the larger deportation efforts, like rolling back TPS, come to fruition, experts say that there will be ripple effects felt in most sectors of the economy, in particular construction, housing and agriculture.
Economists and labor specialists are most worried about the economic impact of policies that would deport workers already in the U.S., both documented and undocumented….
While the worst of the labor crisis spurred by the post-Covid economic boom has passed, and labor supply and demand has come back into balance in recent months, the number of workers available to fill jobs across the U.S. economy remains a closely watched data point. Mass deportation would exacerbate this economic issue, say employers and economists….
“There are millions, many millions who are undocumented who are in the trades; we don’t have the Americans to do the work,” said Chad Prinkey, the CEO of Well Built Construction Consulting, which works with construction companies. “We need these workers; what we all want is for them to be documented; we want to know who they are, where they are, and make sure they are paying taxes; we don’t want them gone.”
And tamer version in NBC’s Some Republicans try to tone down Trump’s mass deportation threats:
The prospect of mass deportations is generating fear and apprehension among families with noncitizen members and businesses that employ undocumented workers.
But some Republicans’ readings of Trump’s policy — which he has promised would bring about deportations at a scale never before seen in the U.S. — are more limited in scope.
Republicans in immigrant-heavy states have been suggesting he’ll prioritize or only focus on the worst criminals.
“I am sure that the Trump administration is not going to be targeting those people who have been here for more than five years that have American kids, that don’t have criminal records, that have been working in the economy and paying taxes,”[6] Florida Republican Rep. Maria Elvira Salazar said in a PBS interview. Her Miami-Dade district is home to about 200,000 undocumented people….
Asked in the interview whether she got those assurances from Trump or someone in his potential administration, Salazar didn’t directly answer, but said she is “going to be one of those voices making sure within the GOP to make that distinction.”
We’ll have a much better idea of how much Team Trump intends to retreat from a strong-form version of mass deportations by inauguration. Stay tuned.
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1 One has to wonder about the competition for military personnel, since Team Trump is contemplating invoking emergency powers to get armed forces deployed to this task. Given how YouTubers like Douglas Macgregor point out how small the Army is, at below 500,000, and has difficulty meeting recruitment targets on top of that, this initiative would cut into Trump’s ability to credibly threaten Russia and Iran ex nukes.
2 Note citizens cannot be denied re-entry but the CBP seems to take the point of view that they can be detained for up to eight hours. I have a friend here who was repeatedly harassed when the returned to the US for no fathomable reason. It did not stop until she prevailed upon relatives to call Congresscritters to get the dogs called off. And even though the person of interest can remain silent, anyone with an operating brain cell understands that almost certainly means their devices will be confiscated. She has described long form the practical difficulty of standing up for your rights in these circumstances.
3 From Wikipedia:
Reno v. Flores, 507 U.S. 292 (1993), was a Supreme Court of the United States case that addressed the detention and release of unaccompanied minors.
The Supreme Court ruled that the Immigration and Naturalization Service’s regulations regarding the release of alien unaccompanied minors did not violate the Due Process Clause of the United States Constitution.[1] The Court held that “alien juveniles detained on suspicion of being deportable may be released only to a parent, legal guardian, or other related adult.” The legacy for which Reno v. Flores became known was the subsequent 1997 court-supervised stipulated settlement agreement which is binding on the defendants (the federal government agencies)[2]—the Flores v. Reno Settlement Agreement or Flores Settlement Agreement (FSA) to which both parties in Reno v. Flores agreed in the District Court for Central California (C.D. Cal.).[3][Notes 1] The Flores Settlement Agreement (FSA), supervised by C.D. Cal., has set strict national regulations and standards regarding the detention and treatment of minors by federal agencies for over twenty years. It remains in effect until the federal government introduces final regulations to implement the FSA agreement. The FSA governs the policy for the treatment of unaccompanied alien children in federal custody of the legacy INS and its successor—United States Department of Homeland Security (DHS) and the various agencies that operate under the jurisdiction of the DHS-in particular the United States Citizenship and Immigration Services (USCIS). The FSA is supervised by a U.S. district judge in the District Court for Central California.[4]
The litigation originated in the class action lawsuit Flores v. Meese filed on July 11, 1985 by the Center for Human Rights and Constitutional Law (CHRCL) and two other organizations on behalf of immigrant minors, including Jenny Lisette Flores, who had been placed in a detention center for male and female adults after being apprehended by the former Immigration and Naturalization Service (INS) as she attempted to illegally cross the Mexico–United States border. Under the Flores Settlement and current circumstances, DHS asserts that it generally cannot detain alien children and their parents together for more than brief periods.[4] In his June 20, 2018 executive order, President Trump had directed then-Attorney General Jeff Sessions to ask the District Court for the Central District of California, to “modify” the Flores agreement to “allow the government to detain alien families together” for longer periods, which would include the time it took for the family’s immigration proceedings and potential “criminal proceedings for unlawful entry into the United States”.[4]: 2 On July 9, Judge Gee of the Federal District of California, ruled that there was no basis to amend the 1997 Flores Settlement Agreement (FSA) that “requires children to be released to licensed care programs within 20 days.”
4. See:
Therefore, a parolee with only a Form I-94 or a parole stamp in the foreign passport who is not work authorized incident to their status can only apply for a non-work Social Security Number (SSN), if eligible. For information on eligibility for a non-work SSN, see RM 10211.600.
5 To keep the post to manageable length, we are skipping over other enforcement ideas, like outlawing the staffing agencies that now help place immigrants under Temporary Protected Status.
Of course, employers could revert to paying these workers even more off the books, as in via using cash or crypto. But there are limits to that for enterprises that get their revenues in the legitimate economy, in that they would not be able to deduct these labor expenses.
6 This “paying taxes” as a condition of regularization is a clever dodge. Obama also had a amnesty scheme which included workers who had been paying payroll and income taxes for a long time, IIRC more than five years. The reason that is an issue is the Social Security number issue discussed at length above. Unless things have changed radically, most of the undocumented migrants who have these taxes withheld are through SSNs used multiple times, as in they can’t prove how much of Treasury tax deposits were on their behalf and thus whether they really covered all their work hours. I had one friend who for shaggy dog details had gotten a SSN but was in some sort of Heisenberg uncertainty visa status otherwise due to his estranged wife refusing to cooperate with the remaining steps to make him legal. He maintained he was the only person who could actually benefit from the Obama scheme. But it was a non-starter because it required participants to leave the US and then apply for re-entry.