On November 18, President-elect Donald Trump announced his intention to declare a “national emergency” to mobilize the military to carry out mass arrests and deportations of undocumented immigrants. This may sound intimidating, but does the new president have the legal authority to do this?
Since his decisive victory on November 5, supporters of the new president have issued conflicting statements about whether Trump will follow through on one of his central campaign promises: conducting “the largest deportation operation in the country's history.”
Certainly, deporting 11 million undocumented immigrants would be a monumental task for which the federal government lacks the funds, personnel, and infrastructure. But don’t be fooled. Just like during his first term in 2017, indiscriminate deportations are likely to affect workers and families without criminal records. Nevertheless, we live in a nation of laws, which guarantee certain rights to immigrants.
Is there a legal basis for mass arrests and deportations?
If the new administration plans to carry out these mass arrests and deportations, it will have to circumvent multiple laws.
Trump has confirmed plans to mobilize the military, federal agents, state, and local police for operations in neighborhoods and workplaces to detain immigrants. However, all these institutions are bound by their laws. The judicial process required to determine whether someone can be deported cannot easily be delegated to other agencies.
One alternative to bypass some of these legal and budgetary restrictions is for the White House to collaborate with local agencies in states aligned with Trump. However, this presents additional challenges. Immigration enforcement is not within the purview of the military, sheriffs, or local police. According to the Constitution, it is exclusively the responsibility of the federal government.
Another question that arises when discussing raids in neighborhoods and workplaces is: How will officers identify someone as undocumented? By their appearance?
Historically, similar operations have resulted in racial profiling and civil rights violations. A well-known example is the case of former Sheriff Joe Arpaio in Arizona, who was sued multiple times for detaining and investigating individuals based solely on their appearance or language.
Alien Enemies Act vs. the Constitution
Trump’s team is considering extreme legal measures to expedite deportations. One option is the Alien Enemies Act, legislation from 1789 that has rarely been used in U.S. history. Another is to expand the use of "expedited removal" procedures, which limit immigrants' ability to defend themselves against deportation. The problem is that these measures violate constitutional protections.
Organizations like the ACLU and legal experts warn that if the new administration accelerates arrests and deportations, these actions would infringe on multiple rights, including the Fourth Amendment, which protects against searches and arrests without reasonable suspicion. Similarly, they would conflict with the Fifth and Fourteenth Amendments, which guarantee due process and equal protection under the law, prohibiting racial discrimination.
Can the military arrest immigrants?
Given all the points mentioned earlier, it is highly likely that such measures would face significant legal challenges. Additionally, using the military to carry out these actions could violate the Posse Comitatus Act, which restricts the military’s involvement in civilian affairs.
Trump’s proposals have social and ethical implications and clash with fundamental constitutional principles.
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