WASHINGTON − President Donald Trump on Monday declared a national border emergency and ordered the U.S. armed forces to repel “forms of invasion” at the U.S.-Mexico border, including illegal migration and drug trafficking.
The executive orders – published late Monday – appeared to lay the groundwork for Trump’s promised crackdown on immigration, including ending birthright citizenship for the children of some foreigners.
“I will declare a national emergency at our southern border,” Trump said during his inaugural speech. The declaration was posted shortly before 9 p.m. “All illegal entry will be immediately halted and we will begin the process of returning millions and millions of illegal aliens back to the places from which they came.”
White House officials speaking on condition of anonymity earlier in the day said Trump will also use executive orders to suspend refugee resettlement, finish building the border wall, suspend entry of nationals from “countries of concern” and attempt to end the constitutionally guaranteed right to citizenship for children born in the U.S. to some foreign nationals.
The administration also plans to use the military to target drug cartels as “global terrorists” and use troops to combat them. White House officials declined to provide details on the rules of engagement.
Trump’s vow to launch a “mass deportation” was the signature promise of his campaign, a crackdown he said would see millions of people expelled from the country.
In one of its first actions, the new administration turned off a function of the CBP One cellphone application that let migrants make appointments to enter the country at a port of entry. U.S. Customs and Border Protection was previously letting up to 1,450 migrants a day apply for entry via the app.
Migrants with appointments after Trump’s noon inauguration saw their hopes crushed. On the Mexican side of an international bridge to El Paso, Texas, more than two dozen men, women and children from Cuba, Colombia and Venezuela were waiting for their 1 p.m. appointments. Most burst into tears or stood dumbstruck after Mexican authorities told them they wouldn’t be received.
The expected declaration of a national emergency comes as illegal border crossings are at their lowest level in more than five years. In early January, U.S. Customs and Border Protection reported roughly 1,000 migrant encounters daily, from California to Texas – down 75% from a year ago.
Earlier Monday, the administration officials who previewed the orders said the executive orders came in response to “widespread chaos” at the border during the Biden administration. The officials cited the record number of encounters with migrants at the border who didn’t have legal authorization to be in the country, including hundreds of thousands of unaccompanied children – despite a dramatic drop in unlawful crossings last year.
Elizabeth Goitein, senior director for liberty and national security at the Brennan Center for Justice at New York University, said the declaration of a national emergency at the border unlocks powers in 150 different provisions of law. She expects the invocation to be used for the same purpose as Trump’s 2019 declaration: to use money from the Defense Department to pay for border security.
Executive orders on border security, immigration
Trump has long promised numerous executive actions to secure the border on “Day One,” and the 10 orders represent an initial tranche of directives, White House officials said.
One order would end the birthright citizenship, which has been guaranteed by the 14th Amendment to any child born in the United States, a right enshrined in the Constitution in the years following the Civil War. The order aims to deny citizenship to children born to some foreign nationals in the country illegally.
Another order will declare criminal cartels as “global terrorist groups,” allowing the deployment of the military. The order is intended to target members of transnational gangs including Tren De Aragua and MS-13 and the trafficking of fentanyl and others drugs.
In his inaugural speech, Trump said he would invoke the Alien Enemies Act of 1798 to combat criminal gangs with foreign members.
“I will direct our government to use the full and immense power of federal and state law enforcement to eliminate the presence of all foreign gangs and criminal networks bringing devastating crime to the U.S. soil, including our cities and inner cities,” Trump said.
Chad Wolf, a former acting secretary of Homeland Security who is now executive director of the America First Policy Institute, a right-wing think tank, said the executive order designating Mexican cartels as foreign terrorist organizations will be key to fighting organized crime and trafficking.
“To secure our borders, protect our communities, and defend our sovereignty, we must confront the cartels with the full force of the law,” Wolf said in a statement. The executive order “designation sends a clear message that their extortion, trafficking and violence will not be tolerated, and we will act decisively to dismantle their networks and restore safety and justice to our borders.”
Another order mandates the death penalty for capital crimes committed by immigrants in the country illegally.
Immigrant advocates promise to fight back
Immigrant advocacy groups were anticipating the sweeping executive orders and have pledged to fight them through advocacy and lawsuits.
One of the first court actions landed Monday in U.S. District Court in Washington, D.C.
More: Biden administration carries out highest deportations in a decade
An El Paso-based immigrant advocacy organization filed a motion in an existing case against the Department of Homeland Security. In the new filing, Las Americas Immigrant Advocacy Center said by canceling the CBP One appointments at the border, the new administration has terminated “the only way an individual who arrived in the United States at the southern border could retain the right to seek asylum.”
Paige Austin, supervising litigation attorney at Make the Road New York, an immigrant rights advocacy organization, said the new administration should expect litigation. She cited advocates’ previous victories against Trump’s attempts to eliminate DACA, place a citizenship question on the Census and to expand expedited removal.
Litigation could potentially protect birthright citizenship, she said in a news conference last week.
Greisa Martínez Rosas, executive director of United We Dream Action, another immigrant rights advocacy group said they and others are ready to fight what she calls “Trump’s terror campaign against immigrants.”
“We will be faced with the chaos,” Rosas told reporters in a Thursday news conference. “The terrain we are facing is horrendous and devastating.”
The new administration may also face litigation should Trump use the emergency declaration to move Pentagon funding to border security, including building fencing at the U.S.-Mexico border.
Goitein, of the Brennan Center, said federal courts ruled the border wall didn’t qualify as a military construction project as envisioned in the law. But those rulings were paused on appeal and pending before the Supreme Court when former President Joe Biden overturned the declaration.
“This is going to be fought out in the courts,” Goitein said. Trump “is going to run into some trouble there … This is not what emergency powers are for.”
Trump’s record on deportations
Despite a pledge to reduce illegal immigration during his first term, Trump never achieved the level or annual pace of deportations that President Barack Obama did.
Under Obama, U.S. Immigration and Customs Enforcement – the federal agency tasked with enforcing immigration laws in the interior – deported more than 360,000 people annually during six years of his two-term presidency, with a peak over 400,000 in 2012. Angered by the aggressive enforcement, immigrant advocates nicknamed Obama the country’s “Deporter-in-Chief” during the period.
Trump logged more than 935,000 deportations over four years, including more than 260,000 removals in 2019, the highest year.
This time, Trump may use an authority typically invoked only during war time to achieve his mass deportation goals. One of the executive orders published Monday opens the door to a wave of immigration enforcement, not seen since World War II, under a potential invocation of the Alien Enemies Act.
The order sets a 14-day deadline for Trump to invoke the Act’s authority.
Katherine Ebright, counsel in the Brennan Center for Justice’s center for liberty and national security, said the 1798 Alien Enemies Act was intended to be used as a wartime authority to detain or remove designated enemies.
Trump described targeting members of crime gangs such as Venezuela’s Tren De Aragua or MS-13, born in Los Angeles and exported to El Salvador and Guatemala. But experts worry the order could be applied more broadly.
“Any invocation puts us in radical territory,” Ebright said. “It’s a way to bypass due process.”
Historically the designated country has been named in wartime, which is why Japanese citizens were designated enemy aliens after Pearl Harbor but why members of Al Qaeda, a stateless terror group, weren’t after the hijackings Sept. 11, 2001. This would be the first time an enemy has been declared against a crime gang without a war against the country.
“It’s never been done,” Ebright said.
During his first administration, Trump faced rising numbers of illegal border crossings at the outset of his presidency and was forced to shift resources from interior enforcement to the border. His final year in office was affected by the COVID-19 pandemic, which prompted a slowdown in ICE removals.
