Trump’s Blitz on Immigration Aimed to Overwhelm. Here’s What You Need to Know.

Part of the Series

Human Rights and Global Wrongs

Pandering to his nativist base, Donald Trump made the central pledge of his 2024 presidential campaign a threat to “carry out the largest domestic deportation operation in American history.” On January 20, 2025, he began to fulfill that promise.

On Inauguration Day, repeating the words spoken by Chief Justice John Roberts, Trump swore to uphold the U.S. Constitution. Setting aside the issue of whether he purposely refrained from placing his hand on the Bible his wife was holding, the oath Trump swore triggered the “Take Care Clause” of the Constitution. Article II imposes on the president the duty to “take Care that the Laws be faithfully executed.”

“The Supreme Court has consistently held that the Take Care Clause imposes a ‘duty’ or ‘obligation’ upon the president to ensure that executive branch officials obey Congress’s commands, and, additionally, that the Clause does not provide the president with the authority to frustrate legal requirements imposed by law,” New York civil rights lawyer Jeanne Mirer told Truthout.

Yet in a slew of anti-immigrant executive orders issued on the first day of his second term, Trump not only failed to take care that the laws be enforced but also violated several laws.

Trump Purports to End Birthright Citizenship

Perhaps the most controversial executive order Trump issued is his attempt to eliminate birthright citizenship.

The first sentence of the 14th Amendment to the U.S. Constitution states, “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.”

In direct opposition to that precept, Trump’s order claims that, beginning on February 19, 2025, children of noncitizens will no longer be treated as “subject to the jurisdiction” of the United States.

Trump’s executive order says children born in the U.S. will no longer be treated as citizens if their mothers were not legally in the U.S. and their fathers were not U.S. citizens or lawful permanent residents. It also denies citizenship to children whose mothers were in the country legally on a temporary basis (such as those present under the Visa Waiver Program, or with a student, work or tourist visa) and whose fathers were not citizens or lawful permanent residents.

But the 14th Amendment contains no such limitations. And presidents do not have the authority to rewrite the Constitution.

Although Trump has not invoked the Insurrection Act, he ordered the secretaries of defense and Homeland Security to report within 90 days about “whether to invoke the Insurrection Act.”

Trump’s order will deny more than 150,000 children nationwide their birthright to citizenship over the course of a year. It will cut federal funding for foster care services for neglected and abused children, and early interventions for infants, toddlers and students with disabilities.

On January 21, 22 states sued Trump and some of his department heads in U.S. District Court for the District of Massachusetts, alleging that the order violates the 14th Amendment, the separation of powers doctrine, the Immigration and Nationality Act and the Administration Procedure Act. The plaintiffs are requesting a declaration that Trump’s order violates the Constitution and U.S. laws, as well as a permanent injunction preventing its enforcement.

The complaint states:

The Citizenship Clause’s text and history — as well as judicial precedent and longstanding Executive Branch interpretation — confirm that the clause automatically confers citizenship on all individuals born in the United States and subject to its jurisdiction, regardless of the citizenship or immigration status of their parent(s).

Another lawsuit was filed by the ACLU and other community groups against Trump and some of his officials on January 20, also requesting declaratory and injunctive relief to stop the order from becoming effective.

As this article went to press, U.S. District Court Judge John C. Coughenour in the Western District of Washington temporarily blocked Trump’s order nationwide, calling it “blatantly unconstitutional.”

Trump Declares a “National Emergency” at the Border

Trump also issued an executive order that declares a national emergency at the southern border of the U.S. “America’s sovereignty is under attack,” it says, and claims that there is an “invasion.”

“I hereby declare that this emergency requires the use of the Armed Forces,” Trump’s order states. By declaring a national emergency at the southern border, Trump can use Department of Defense funds for immigration enforcement and use the military and the National Guard to help in patrolling the border and building a border wall. But active-duty federal military forces cannot provide direct law enforcement assistance in searches, seizures, detentions, arrests or interrogations.

The order authorizes the construction of additional physical barriers at the southern border and the use of drones, waiving all Federal Aviation Administration and Federal Communications Commission regulations or policies that would restrict their use within five miles of the border.

Trump Enlists the Military to Enforce the Immigration Laws

On January 20, Trump also signed an executive order titled “Clarifying the Military’s Role in Protecting the Territorial Integrity of the United States.” It characterizes the situation at the border as an “invasion” that includes “unlawful mass migration, narcotics trafficking, human smuggling and trafficking, and other criminal activities.”

This order says that within 10 days, the Defense Department must deliver a revised Unified Command Plan for the U.S. Northern Command to seal the borders and maintain U.S. sovereignty and security, including repelling “invasion” in the form of “unlawful mass migration” and narcotics or human trafficking, and other criminal activities. Northern Command, or NORTHCOM, was created in October 2002 in order to create a military structure for the United States and neighboring countries.

But the military is forbidden from enforcing the immigration laws.

The Posse Comitatus Act was enacted in 1878 to end the use of federal troops in overseeing elections in the post-Civil War South. It bars the use of the military to enforce domestic laws, including immigration law. The act forbids the willful use of “any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus [power of the county] or otherwise to execute the laws.” The only exceptions must be expressly authorized by the Constitution or act of Congress.

One exception is the Insurrection Act, which a president can use to deploy the U.S. armed forces, federalize the National Guard, or deputize private militias of nongovernmental forces within the United States.

There are three sections of the Insurrection Act that the president could invoke:

• First, if the legislature or governor of a state asks the president for assistance to quell an insurrection against the government (Section 251);
• Second, if the president decides that “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States,” render it “impracticable” to enforce U.S. or state law in the courts (Section 252); or
• Third, if “any insurrection, domestic violence, unlawful combination, or conspiracy” deprives people of a legal right, privilege, immunity or protection, that results in the denial of equal protection or “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws” (Section 253).

Although Trump has not invoked the Insurrection Act, he ordered the secretaries of defense and Homeland Security to report within 90 days about “whether to invoke the Insurrection Act.”

Invocation of the Insurrection Act would allow the president to use military forces inside the United States, not just at the border, Rear Adm. James McPherson, former U.S. undersecretary of the Army, said on PBS “NewsHour,” and that would be dangerous. “If … active-duty troops are sent to the border, they will be sent to the border not to enforce immigration laws, but to repel an invasion.… They won’t be involved in a law enforcement role, but a military role.” McPherson added, “We don’t have a war going on at the southern border. We have a law enforcement crisis perhaps. But that’s not an invasion.”

Trump Declares That Immigrants Have Mounted an “Invasion” of the U.S.

In his order titled “Guaranteeing the States Protection Against Invasion,” Trump declared, “I have determined that the current state of the southern border reveals that the Federal Government has failed in fulfilling this obligation to the States and hereby declare that an invasion is ongoing at the southern border, which requires the Federal Government to take measures to fulfill its obligation to the States.”

Trump suspended “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.”

The use of the word “invasion” in several of Trump’s executive orders is aimed at expanding the role of the military in immigration enforcement. In his inaugural speech, Trump directed the military to “send troops to the southern border to repel the disastrous invasion of our country.” Trump is reportedly preparing to send 10,000 troops to the border to support Border Patrol agents.

Article 4 of the Constitution says the “United States shall guarantee to every state in this Union a republican form of government, and shall protect each of them against invasion…”

But equating immigration with invasion was rejected in United States v. Abbott, which concluded that “surges in immigration do not constitute an ‘invasion’ within the meaning of the Constitution.”

Another one of Trump’s executive orders is called “Protecting the American People Against Invasion.” It revokes three Biden-era executive orders: a task force on the reunification of families, strengthening inclusion efforts for new Americans and a regional framework to address the causes of migration. And it restricts federal funds to sanctuary jurisdictions.

The use of the word “invasion” in several of Trump’s executive orders is aimed at expanding the role of the military in immigration enforcement.

Trump’s order directs the director of the Department of Homeland Security to “ensure the detention of aliens apprehended for violations of immigration law pending the outcome of their removal proceedings or their removal from the country.”

This order also authorizes state and local law enforcement officials “to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States under the direction and the supervision of the Secretary of Homeland Security.”

But some local law enforcement agencies do not want to engage in immigration enforcement. “Expected changes in federal immigration enforcement policies have caused fear throughout our immigrant communities, including confusion and uncertainty as to what role local police may play in these new directives. It has never been the role of local police to enforce federal immigration law, nor should it be our responsibility,” the California Police Chiefs Association said in a statement on immigration enforcement.

Trump also signed an executive order to establish a process within 14 days to designate cartels as foreign terrorist organizations or specially designated global terrorists, calling for their total elimination in the U.S. The order announces a plan to use the Alien Enemies Act to expedite the removal of people designated as “terrorists.” Trump’s order relies on his determination that there is a “qualifying invasion” to justify the use of the Alien Enemies Act.

But the Alien Enemies Act requires that “invasion or predatory incursion” must “be undertaken by a foreign nation or government.” Congress has not declared war on any country in more than 80 years, nor has any other government invaded U.S. territory since the War of 1812. Drug cartels are not governments of Latin American countries, so the Alien Enemies Act would not apply.

Trump Orders the U.S.-Mexico Border to Be “Secured”

Trump also claimed that “the United States has endured a large-scale invasion at an unprecedented level” during the past four years.

In the order called “Securing our Borders,” Trump shut down the CBP One app, which, since January 2023, has allowed nearly 1 million people into the U.S. with two-year permits and given them eligibility to work. It has helped establish order at the border and reduced illegal border crossings, although it has caused confusion and made immigrants vulnerable to exploitation and kidnapping. This order leaves tens of thousands of immigrants stranded in Mexico, many of whom have waited six months or more for their CBP One interviews.

Trump also announced that he will reinstate the “Remain in Mexico” program, which requires applicants for asylum to stay in Mexico while they wait for their court date. This change requires notice in the Federal Register to enable comments, but that procedure has not been followed, a violation of the Administrative Procedure Act.

Trump Issues Fact Sheet to Close the Border, Erects Barriers to Asylum

On January 22, Trump issued a “fact sheet” that begins with the words, “GUARANTEEING THE STATES PROTECTION AGAINST INVASION.” It “suspends the physical entry of aliens engaged in an invasion of the United States through the southern border.” The order also says that Trump “has further restricted access to the provisions of the immigration laws that would enable any illegal alien involved in an invasion across the southern border of the United States to remain in the United States, such as asylum.”

Under U.S. law, people have the right to apply for asylum. But by closing the border, Trump is preventing people from exercising that right.

The 1951 Refugee Convention, to which the United States is a party, requires the U.S. to accept and consider asylum applications. To be granted asylum, applicants must show they are unable or unwilling to return to their country of origin because they have a well-founded fear of persecution on account of race, religion, nationality, membership of a particular social group or political opinion.

Trump cannot proclaim an end to the granting of asylum, but he has erected several barriers that will deny immigrants the opportunity to apply for it.

He suspended the operation of the U.S. Refugee Admissions Program (USRAP) and said undocumented immigrants could be admitted as refugees on a “case-by-case basis.”

USRAP requires an annual review of the refugee or emergency refugee situation, the extent of possible participation of the U.S. in resettling refugees, and the reasons to believe that the proposed admission of refugees is justified by humanitarian concerns, grave humanitarian concerns or is otherwise in the national interest.

CBS News reported on January 22, that border agents “have been instructed to summarily deport migrants crossing into the country illegally without allowing them to request legal protection, according to internal government documents and agency officials.”

The report says, “Two Customs and Border Protection officials, who requested anonymity to discuss internal guidance, said migrants will not be allowed to see an immigration judge or asylum officer under Mr. Trump’s edict, which effectively suspends U.S. obligations under domestic and international law to ensure people fleeing persecution are not returned to danger.”

These executive orders, which purport to replace law enforcement at the border with a full-scale military operation, are cruel, illegal and have instilled fear in countless immigrants in the United States.

“Trump’s barrage of executive orders is calculated to create fear, create chaos, induce anxiety and drive our elected officials to capitulate and collaborate in a mass deportation agenda,” Naureen Shah, deputy director of government affairs at the ACLU, said. “If we let Trump exert this kind of death grip over our communities now for immigration enforcement, we fear it will embolden Trump to come again and again for our civil rights.”