How the president’s central domestic policy promise is likely to play out on the ground
As the dust settles on the 2024 election and the contours of a second Trump administration come into focus, one of the clearest and most expansive policy visions is the specter of mass deportation, a term so integral to the campaign that it made it onto signs. As states and localities, particularly immigrant-heavy ones like New York, brace for impact, the big question is: How much can Donald Trump really do? How much will change? The answer is: far less than advertised.
As central an issue as deportations have been to the Trump camp, there are major functional and operational limits to how quickly and aggressively such a program could be implemented, at least under current law and with anything close to current resources. Executing interior arrests and deportations — that is, removals of people already living in the country, not detained at the border — is no easy thing. And even if it were, the removal process is far, far more complex under law than Trump and his allies have suggested. If past is prologue, much will depend on the extent of local cooperation, and how much the administration can ramp up things like detention space and diplomatic coordination with other countries.
The lay of the land
First, some essential context. Contrary to some popular understandings, the government can’t simply pick someone up off the street and eject them from the country, even if they are fully undocumented. Almost any deportation from the country requires an order of removal, which can be issued by an immigration judge under the auspices of the Justice Department — and only after some due process in the immigration courts.
Though cases like asylum determinations — which are meant to judge whether an individual is deserving of protection from persecution in their home country — can get very complex, not every case is. If someone is not able to seek a remedy like asylum, then the government merely has to establish that they do not have legal status. Nonetheless, the courts are so backlogged — there were about two-and-a-half million pending cases as of the end of last year — that even relatively simple cases now often get scheduled years out. No matter how much Trump wants to skip steps, the legal process can’t be easily abridged.
There is one major exception to this, which is expedited removal. This authority is baked into immigration law, and in its most expansive form allows federal immigration enforcement officers to remove anyone who cannot establish either that they are in the country lawfully or that they have been physically present for two or more years. In that case, they can legally be deported without going through the courts. This authority has historically been significantly restrained, but the first Trump administration moved to expand it to its full potential effect; it was halted in litigation until mid-2020, a period during which COVID had already significantly impacted government operations including immigration enforcement.
Homeland Security under Biden rescinded Trump’s expansion, but the incoming administration would probably try to expand it again, which would put immigrants at some risk of being deported without further process, especially if they weren’t carrying proof that they had been living in the country for those two years or more.
For the millions of undocumented immigrants already living in the country, there is no legal path to deportation without going through the morass of an overwhelmed immigration court system, which is a significant choke point for the Trump team’s designs for large-scale deportation.
Then there are the ways that the Trump (and to some extent, the Biden) administration managed to engage in removals that were not technically deportations. One method was the so-called third-country agreements, under which the federal government began sending asylum seekers to ostensibly seek asylum in Guatemala instead. Then there was Title 42, the supposed public health order that was used to expel migrants on the spurious grounds that they could be vectors for COVID. That is unlikely to be repeated unless there’s suddenly another pandemic.
Still, even if these programs were carried out to their full effect, they’d largely impact recent arrivals or would-be asylum seekers at the border.
In sum, for the millions of undocumented immigrants already living in the country, there is no path to deportation that doesn’t go through the morass of an overwhelmed immigration court system, which is a significant choke point for the Trump team’s designs for large-scale deportation.
One way the Trump administration may attempt to maneuver around this is by compelling so-called self-deportations. Mitt Romney made the idea famous in 2012; it means making life so difficult for undocumented people — by starting removal proceedings and ratcheting up day-to-day worries — that they are prompted to leave of their own accord, without waiting for immigration courts.
Trump-world figures like incoming White House Deputy Chief of Staff for Policy Stephen Miller — Trump’s main anti-immigration policy architect during his first term — have talked a lot about the idea of expanding immigration arrests and detention. One goal of that approach is getting people to both live in a state of generalized fear and potentially give up quickly on immigration cases that they might otherwise fight out. Since immigration enforcement is civil in nature, people who cannot pay for or find pro bono attorneys do not get lawyers appointed by the government, meaning a large chunk of immigrants put into removal proceedings go unrepresented and consequently are much more likely to lose their cases.
Who gets arrested, by whom and how?
Even employing that strategy, though, requires interior arrests to happen, and the truth is that’s a tall order. The vast majority of removals under both Biden and Trump resulted from border arrests; according to the meticulous data maintained by the TRAC project at Syracuse University, of the just over 102,000 removals that have taken place through February in fiscal year 2024, about 85,000, or 83%, were from the border. In fiscal year 2019, the last Trump year before the pandemic, the proportion was a little more even at 70% border removals out of a total of nearly 270,000, but that’s still a clear majority.
Of the interior arrests themselves, most aren’t the so-called at-large arrests, or “raids,” that many immigrant advocates fear — agents fanning out into communities or arresting people at homes and businesses. During fiscal year 2018, the last for which TRAC has this type of granular data, only about a quarter of interior arrests were at-large, while the rest happened in detention settings, which is to say, after immigrants had already been otherwise detained in jails or prisons, most often by local authorities. In practice, this means that interior removals are often somewhat regional; states and localities that cooperate more with U.S. Immigrations and Customs Enforcement (ICE) will have higher removal numbers.
This doesn’t include New York. While Mayor Eric Adams has directed some sharp words towards the migrants that have arrived in New York City in recent months and recently mused about engaging in deeper coordination with ICE, he’s unlikely to do a full 180 on the city’s broader sanctuary posture — which makes clear to otherwise law-abiding undocumented immigrants they will not be flagged for federal immigration authorities. Under the law, the city can cooperate with ICE only when a target has been convicted of one or more of 140 specified crimes and the agency presents a judicial warrant, which is extremely rare; from July 2022 to June 2023, the latest year for which data is available, the NYPD honored zero of ICE’s requests to hold someone in custody for them. It shares nothing in the vast majority of other cases, and especially not when immigrants are simply seeking services.
How do the asylum seekers who’ve come into the city in large numbers of late factor into this? While they’re often lumped in with the population of undocumented immigrants, recent-entrant asylum seekers are almost always in the middle of often yearslong legal processes that give them a sort of pseudo-status where they’re not really deportable. They’ve generally been granted formal legal admission to the country, then made to wait and wait and wait for a hearing. Though tagged “illegals” by Trump and his allies, they’re not illegal at all.
Who ICE will target and how
When Barack Obama was president, he deported people at record numbers in a transparent attempt to win Republican support for broader, compromise immigration reform. That support never materialized. But even when the Obama administration ramped up deportations, it tried to put criminals first in line for removal.
When Trump was president the first time around, one of his interior enforcement moves was to get rid of ICE’s prioritization scheme, which previously had put people considered national security and public safety threats at the top of the target list, followed by recent entrants, and essentially deprioritized enforcement against everyone else. The idea under the pre-Trump Priority Enforcement Program, as the policy was known, was that ICE’s limited resources would best be directed at the “bad guys,” and not the vast pool of undocumented people living without incident. Ironically, despite Trump’s obsessive focus on the supposed danger of immigrants, his policies would deemphasize danger.
“They say, ‘Yes, we’re going to go after the criminals first.’ And the problem with that is there aren't that many criminals for them to go after, relatively speaking, compared to the rest of the entire undocumented population,” said Aaron Reichlin-Melnick, senior fellow at the American Immigration Council.
Ironically, despite Trump’s obsessive focus on the supposed danger of immigrants, his policies would deemphasize danger.
The risk here is that, to bump up its numbers quickly, ICE will start going after what could be called the low-hanging fruit: immigrants who are already known to the agency but that it hadn’t bothered to target, some of whom even periodically check in with authorities. Some chunk of them already have old removal orders that could be acted on immediately, without further due process. Trump has also forcefully indicated he wants to make a lot more people undocumented by stripping away existing protections like Temporary Protected Status, humanitarian parole and DACA, executive discretionary programs that grant work authorization and protections from deportation but confer no permanent status. He could move to end these via executive action alone, creating a huge pool of deportable people for which the government already had granular information. In backlogged immigration courts that are already moving in slow motion and stretched terribly thin, this will likely work against the objective of removing the most dangerous people.
His attorney general, who could set policy for the immigration courts, will likely also try to tamp down on avenues for relief, as the Department of Justice did under the first term. While the administration would indeed have to push its targets through the overburdened court system, it does at some level control this system, and can potentially grease the wheels towards cases being denied quick and more cursorily, as has been done with both precedential decisions and the oft-criticized expedited “rocket dockets.”
As Reichlin-Melnick notes, Trump is likely to try to make an example out of jurisdictions that refuse to play ball.
“We’ve already seen [so-called border czar] Tom Homan talk about this, and describe the ways in which he would send twice as many law enforcement agents to New York if people in New York do not cooperate with his plans,” he said. “If you live in a blue state and an area that is not cooperating, they will use the power of ICE to go after you more than if you live in a state that is not a sanctuary state. They will do raids in blue communities to send the message that you should not be in a blue community.” Writ large, local officials can’t directly engage in immigration enforcement, except under very limited programs. Some state and local officials, notably Texas Gov. Greg Abbott, have attempted to finagle de facto immigration enforcement with local police, but this is not formal federal enforcement.
One likely enforcement avenue is worksite raids. These have often taken place in factories and agricultural workplaces that mostly tend to be outside major cities, but in the coming years, showy raids in New York City workplaces could be a way of sending a different message.
We can also expect some pressure applied via the levers of federal influence, including funding. The first Trump administration led an ultimately successful battle to withhold some law enforcement grants from sanctuary jurisdictions, and Trump has said he’d do it again.
Still, we should remember: Raids are showy and sweep some number of people into the detention system, but they don’t amount to mass deportation. The immigration courts are massively backlogged; even with a big boost in personnel, they can only move so fast. Again, due process is a wrench in the gears.
A role for the military?
Overhanging much of this is what exactly is both planned and feasible in terms of the use of the military. Trump is known to often speak off the cuff and without much forethought, but he’s not the only one who’s now raised this prospect. Stephen Miller has openly mused about “deputizing” National Guard units as immigration enforcement agents, while Homan, a former ICE director, has talked about having the military be a “force multiplier,” including potentially with setting up camps for detained immigrants.
The latter point in particular is salient because, while ICE has been eyeing big expansions of detention capacity, including in New Jersey, there’s a physical limit to how many people can be detained pending deportation at once, and that limit is well below the numbers that the Trump cadre are shooting for. Current ICE detention is hovering at a bit below 40,000 and the capacity isn’t dramatically beyond that. In any case, use of the military for any part of this could run afoul of around some of the prohibitions of the Posse Comitatus Act — the federal law that prevents troops from being used for domestic law enforcement. It’s unclear whether the military would really go along, and the reason that ICE itself relatively rarely does at-large arrests is that they tend to take a lot of planning and preparation that, even with increased surveillance capacity, can’t just be scaled up overnight.
There’s a physical limit to how many people can be detained pending deportation at once, and that limit is well below the numbers that the Trump cadre are shooting for.
Besides, we return to the core problem: You can lead an immigrant to court, but you (generally) can’t swiftly and unilaterally make him or her exit the country.
What about the courts?
Speaking of running afoul of the law, the federal courts were a significant backstop against the most overt Trump immigration excesses the first time around, blocking policies like the Remain in Mexico effort, the public charge rule and countless others. They are, however, likely to be a bit less of an obstacle this time for three distinct reasons.
First, a lot of those earlier legal defeats were driven not by a fundamental legal inability to enact the policies but from the government’s own sloppiness with process. Take the attempted terminations of Temporary Protected Status for several countries; a federal judge enjoined that not because the administration was fundamentally unable to do this, but because it did so haphazardly and motivated by obvious animus.
Trump & Co. have had much more time to prepare this time around.
Second, the judiciary itself has tacked right, courtesy of Trump’s frenetic pace of judicial picks and the confirmations of a GOP Senate during his first term. The Fifth Circuit in particular has become a reliable pipeline for favorable litigation of right-wing policies, and of course the Supreme Court now has a reliable conservative supermajority that Trump is in all likelihood going to cement upon some expected resignations.
Finally, there’s the Supreme Court 2022 decision in Garland v. Aleman Gonzalez, which broadly constrained district courts from enjoining federal immigration enforcement policies even if they determined these policies were illegal, making it much more difficult for individual judges to stop politics pre-implementation.
All in all, there’s little doubt that the administration will try to make good on Trump’s vision of a nationwide mass deportation campaign, and it is empowered with a lot of tools and authorities to do so. Yet these aren’t omnipotent tools, and an operation of the scale that surrogates and Trump have laid out does not seem especially feasible. A lot of moving parts, from local policy to court action, will intersect to shape the actual scope and impact of the effort, which is not a particularly satisfying answer but is an actionable one.