What Trump’s executive orders tell us about the future of immigration

If all of President Donald Trump’s Day 1 executive orders on immigration and deportation go through, he will have succeeded in a radical overhaul of US law. That, however, is a mighty “if.”

His agenda Monday was a mix of new and familiar policies: In the latter category, Trump revived a number of measures from his first administration, including forcing asylum seekers to wait in Mexico for decisions in the US immigration cases, implementing “extreme vetting” of immigrants coming into the US, and cracking down on “sanctuary cities” and states that refuse to cooperate with federal immigration agents. 

He also began to implement several 2024 campaign promises, including establishing a framework through which he intends to carry out mass deportations, mobilizing the military to the border, and paring back Biden-era programs that gave temporary protections to hundreds of thousands of immigrants. And he delivered on a long-standing promise to sign an executive order potentially ending birthright citizenship — in the unlikely event it stands up to a court challenge. 

Some of these executive orders, such as the so-called Remain in Mexico policy, have already been tested in the courts during Trump’s first administration or are clearly within his powers as president. That category includes rescinding his predecessor’s executive orders or agency policy guidance on immigration, such as a Biden directive prioritizing violent criminals and recent arrivals for immigration enforcement. Other Trump actions appear patently illegal; the ACLU and 18 state attorneys general have already challenged his order ending birthright citizenship, which legal experts have long argued is blatantly unconstitutional.

The survival of other new policies, particularly around deportations, may depend on how they are implemented in practice. As new executive orders go into effect, legal advocates will be watching for the ways in which those policies could violate the constitutional rights of immigrants and existing federal immigration and national security laws.

According to Doris Meissner, director of the Migration Policy Institute’s immigration policy work, however, “there is more sophistication, I think it’s fair to say, in the way that they [Trump administration officials] are going about it,” compared to the hasty executive orders of Trump’s first term. 

In short, we’re in for months or even years of legal wrangling — and the outcomes of those fights will determine the reach of Trump’s immigration overhaul.

What Trump’s immigration executive orders actually do

Trump made immigration a centerpiece of his 2024 campaign after record-high numbers of crossings at the US-Mexico border early in the Biden administration. While border crossings came down significantly after former President Joe Biden implemented executive orders limiting access to asylum last year, Trump nevertheless signed Day 1 executive orders addressing what he described as an immigrant “invasion” and setting the stage for a large-scale deportation operation. 

Trump has sought to keep out and remove immigrants, both documented and undocumented, by multiple means:

• In addition to restarting the “Remain in Mexico” policy, he declared a national emergency at the border, blocked any noncitizens from entering on the basis that they could spread unnamed “communicable diseases of public health concern,” and prohibited them from claiming a right to remain in the US under its asylum laws. 
• He ordered a rollback of Biden-era parole and Temporary Protected Status protections that allowed people from countries including Cuba, Haiti, Nicaragua, and Venezuela to live and work in the US.
• He laid the groundwork to reestablish his policy of “extreme vetting” of legal immigrants from his first term, applying heightened scrutiny at the agency level to visa applications across the board. 
• He will pause US refugee admissions for at least a 90-day period, starting on January 27. 
• He has left open the door to future travel bans and agreements with other countries that would require asylum seekers to apply for protections there first.
• He cleared the way for the Defense Department to deploy the military to the southern border (though in exactly what capacity remains unclear) and ordered the construction of the border wall to restart.

Trump’s executive orders prioritize criminals (particularly members of drug cartels or international criminal gangs that he has now designated as foreign terrorist organizations) for deportation, but they make no promises to spare other undocumented immigrants. He is reportedly planning to order immigration raids in major cities in the early weeks of his new administration, though one such raid in Chicago may have been postponed following leaks. 

To achieve his promised mass deportation agenda, Trump’s executive orders look to beef up immigration detention capacity, seek cooperation with local law enforcement, expand the use of fast-tracked deportations, punish sanctuary cities and states, and sanction countries that have been reluctant to accept their own citizens as deportees. 

Finally and perhaps most controversially, he issued an executive order attempting to end birthright citizenship from February 19 onward, which would impact children born in the US to an undocumented mother or a mother in the US on a temporary visa, if their father also lacks citizenship or permanent residency status.

How the courts could limit Trump’s ambitions on immigration

During Trump’s first term, the courts served as a check on his efforts to unilaterally remake the immigration system via executive order, regularly issuing nationwide blocks on his policies that often delayed if not ultimately doomed them. 

This time, Trump’s policies are just as likely to be challenged in court. A group of former Biden-Harris officials, in collaboration with the legal organization Democracy Forward, are gearing up to file lawsuits against Trump’s initial executive orders. The ACLU and other legal organizations are also beginning to inundate the new Trump administration with litigation.

However, what’s different about Trump’s second term is the makeup of the courts. Trump appointed swaths of conservative judges to the Supreme Court and other federal appellate courts during his first term, and he may now find a more favorable legal environment to enact his immigration policies. 

Trump officials appear to have learned from their mistakes, experts noted, and are less likely to rush to implement splashy policies — such as the travel ban on citizens of certain countries Trump pursued early in his first term — without gathering the necessary justification at the agency level. 

“I think that the time that the Trump administration had to study some of their losses could have played into how they’ve framed these orders that just came out,” said Kathleen Bush-Joseph, a policy analyst at the Migration Policy Institute, a nonpartisan think tank focused on immigration. “They’re trying to follow past decisions and put forward things that they think can stand up In the courts.” 

As president, Trump has significant discretion over federal immigration policy, and he already tested the limits of that authority during his first term. For instance, his “Remain in Mexico” policy, an amended version of his 2017 travel ban targeting Muslim-majority countries, and his efforts to expand “expedited removal” — a process by which immigrants can be deported quickly and without a hearing before an immigration judge — all survived legal scrutiny the first time around and likely will again. 

Many of Biden’s immigration policies implemented via executive order can be — and indeed, already have been — undone via executive order. That includes Biden’s implementation of immigration enforcement priorities and the CBP One app that allowed immigrants to sign up for appointments at the border where they were processed and often allowed to cross. On Monday, immigrants saw their appointments canceled.

However, there are elements of Trump’s executive orders that seem clearly illegal or at least deeply questionable, according to legal experts. That includes ending birthright citizenship, which most legal experts argue would require a constitutional amendment for which there does not exist sufficient support in Congress. 

In another executive order, Trump also lays the groundwork to invoke the Alien Enemies Act, a 1798 law passed as part of the Alien and Sedition Acts that allows the president to detain and deport noncitizens from countries at war with the US. It was last used during World War II to detain civilians of Japanese, German, and Italian descent. Despite Trump’s rhetoric about an invasion and his decision to name cartels and international criminal gangs as terrorist organizations, however, the US is not at war, and experts say Trump likely lacks legal standing to use the law to deport immigrants.

“Most experts believe that to invoke [the Alien Enemies Act] requires a declared war, and only Congress can declare war,” said Muzaffar Chishti, a senior fellow at the Migration Policy Institute and director of the think tank’s office at New York University School of Law. “​​Whether this is a war or there’s an invasion is going to be subject to litigation, and there is good law against the President on this.” 

Some of Trump’s executive orders, however, may occupy a legal gray zone until we know more about exactly how they will be implemented or how they could infringe on individual rights. That includes his deployment of the military to the southern border. 

There is a long precedent of the military supporting operations at the border through infrastructure and logistics, but not of US troops interacting directly with immigrants. An expanded presence on the border, particularly of active duty service members rather than National Guard troops, could violate federal law. That includes the Posse Comitatus Act, which prohibits the use of the military to enforce federal law without the permission of Congress or the Constitution.

These kinds of legal questions are likely to be resolved only after lengthy litigation, potentially delaying, if not sinking entirely, some key parts of Trump’s immigration agenda. But the Trump administration also appeared on Monday more savvy about how it intends to defend the orders in court than it did in 2017 — and with a more pliant court system in place, it’s an open question how far Trump’s unilateral immigration agenda will go.