The president has no power of his own to deport anyone; he has the power that Congress has given him.
The president has no power of his own to deport anyone; he has the power that Congress has given him.
‘T he Court without exception has sustained Congress’s plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.” So said the Supreme Court in Kleindienst v. Mandel (1972). The justices cited a number of the Court’s precedents for this proposition, and leaned heavily on Justice John Marshall Harlan’s explication from the previous century in Lem Moon Sing v. United States (1895):
The power of Congress to exclude aliens altogether from the United States, or to prescribe the terms and conditions upon which they may come to this country, and to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications.
The president does not make immigration law, Congress does.
The president’s task is to faithfully execute Congress’s laws. And in so doing, the Court has clearly explained, he must respect constitutional safeguards. For that incontestable point, the Kleindienst Court excerpted its decision in Galvan v. Press (1954) on the president’s duty to carry out Congress’s will. In enforcing “policies pertaining to the entry of aliens and their right to remain here,” Justice Felix Frankfurter wrote:
The Executive Branch of the Government must respect the procedural safeguards of due process. . . . But that the formulation of these policies is entrusted exclusively to Congress has become about as firmly embedded in the legislative and judicial tissues of our body politic as any aspect of our government.
The procedural standards of due process are not optional. They are mandatory. They are the law.
As I detailed last weekend, Vice President JD Vance has attempted to redefine due process as no process by proposing a vague executive calculus of “our resources, the public interest, the status of the accused, the proposed punishment, and so many other factors.” Left unmentioned, naturally, were the two factors that actually matter: the laws of Congress and the safeguards of the Constitution. That is what prescribes the process that is due. The president does not get to make that call.
In the Oval Office on Wednesday, President Trump pronounced that there could be no “trials” for the aliens he seeks to expel from the country:
We’re getting them out, and a judge can’t say, “No you have to have a trial.” The trial is going to take two years. We’re going to have a very dangerous country if we’re not allowed to do what we’re entitled to do.
But he’s only “entitled to do” what Congress authorizes him to do. The Alien Enemies Act? We can argue about its application vel non to a peacetime dragnet against suspected Venezuelan gang members; however you come out on that, it is undeniable that the president’s AEA authority comes from congressional statute. The president has no power of his own to deport anyone; he has the power that Congress has given him, under the terms of its legislation.
The legal aliens Trump is booting because they’ve fomented antisemitism and mayhem through their pro-Hamas campus agitation? The administration is able to strip them of their lawful immigration status and expel them only because Congress enacted statutes (Sections 1227(a)(4) and 1182(a)(3)) that grant the secretary of state deportation authority based on foreign policy concerns. Neither Donald Trump nor Marco Rubio wields such power inherently; even as the executive branch’s highest echelon, they can only execute. The deportation authority is Congress’s. If Congress repealed its statutes tomorrow, Rubio would have no more authority to deport an alien based on his judgment of the foreign policy ramifications than you and I have.
Kilmar Abrego Garcia? He was deportable under federal immigration law enacted by Congress (see, e.g., Section 1227(a)(1)), which made his presence in the United States illegal. And to the extent he had protection against being deported to El Salvador, it was based on a remedy — withholding of removal — that is implemented by regulations based on Congress’s statutes. In enacting that remedy, Congress also legislated a process by which the attorney general and the immigration courts (established and funded by Congress in the Justice Department) could review and reverse a grant to withholding of removal (see Section 208.24 of Title 8, Code of Federal Regulations). Whether Attorney General Pamela Bondi eventually exploits that process is the administration’s decision to make; but she has the option only because Congress provided it. In carrying out removal, the president, the attorney general, and the DOJ’s immigration tribunals have only the authority Congress has given them. They have no power to make up their own rules.
“I hope we get cooperation from the courts,” the president added in his Oval Office remarks, “because we have thousands of people that are ready to go out and you can’t have a trial for all these people.” As we’ll see, the president is wrong, but at least he’s more restrained than his deputy chief of staff, Stephen Miller, who ludicrously thunders:
[Trump critics say] every single invader that Joe Biden let in should get their own individual judicial trial before they’re deported. . . . Each one gets a million-dollar trial in front of a communist judge to decide whether or not we can send them home. How about hell no! How about we pick them up and we get them out of this country, so they can’t hurt anyone else?
In actuality, as the above snippets from relevant Supreme Court jurisprudence instruct, the involvement of the courts in immigration enforcement is extremely limited — confined to the narrow authority Congress has vested in them. Sure, it is also the judiciary’s constitutional duty to uphold due process protections; in the immigration realm, though, that is not much protection because Congress decides what process is due and aliens do not have the full array of due process rights enjoyed by citizens.
As the Supreme Court has recognized in Johnson v. Eisentrager (1950), the rights of aliens become more robust as they lawfully weave into the fabric of our society. The foreigner who has never entered the United States has no constitutional rights; the illegal alien at the border has nearly none; the illegal alien who has entered has marginally more; the alien on a temporary visa has still more but less than an immigrant with a green card.
Let’s set aside for a moment the difficult cases of legal aliens the Trump administration seeks to expel because of pro-Hamas agitation. What the president, the vice president, and their staffers are mainly squawking about are deportable aliens, near the lowest end of the sliding scale of due process rights.
Congress does not require a “trial” before such aliens may be deported — much less a trial that would “take two years.” Neither Trump nor Miller is a lawyer, so I presume when they inveigh against “trials” in this context they are actually talking about removal proceedings. Pace the White House, those proceedings are much more expeditious than trials tend to be. Judicial courts, moreover, have nearly nothing to do with them.
At the border, illegal aliens may be turned around on expedited procedures that don’t even involve immigration courts — which, we should bear in mind, are not judicial courts at all, they are Justice Department tribunals that may be overruled by the attorney general.
Illegal aliens detained inside the country, if they don’t agree to rapid expulsion (as many do), are entitled to a hearing before an immigration judge and an appeal to the Board of Immigration Appeals — again, Justice Department tribunals. After that, removable aliens get a one-shot at actual judicial review, specifically, a circuit court of appeals — that is, Congress has cut the federal district courts (the trial judges) out of the process. And the circuit court’s review is narrow; in the main, it must accept the factfinding of the Justice Department’s tribunals and is limited to deciding pure questions of law. Few of those, at this point in history, are novel or complex.
In truth, the removal process is streamlined. It is materially less expensive, extensive, and complicated than federal trials tend to be. It is not the federal judiciary that grinds the gears of immigration enforcement to a halt.
So, what does?
Well, for starters, the Democratic Party — whose 2024 presidential candidate got nearly as many votes (75 million) as Trump (77.3 million) — does not believe the United States should have borders and does what it can to abet illegal immigration. With half the country supporting that party, the president’s claim that he has a “mandate” to boot 20 million illegal aliens out of the country is misguided, even if you believe — as I do — that border enforcement was Trump’s strongest issue. By winning very narrowly (with 49.8 percent of the vote), Trump’s only “mandate” is to be president for four years. That means pursuing his policy preferences within the strictures of the Constitution, under which Congress, not the president, makes the immigration and deportation laws. Even presidents who win landslide elections, which the incumbent did not, must follow the Constitution and faithfully enforce the laws.
Beyond that, the system is overwhelmed because the government has not enforced the immigration laws — a problem that goes back decades but became a crisis because of President Biden’s uniquely reckless dereliction of duty. There are now about 20 million illegal aliens in the country, and Congress provides woefully inadequate resources to address the removal backlog. That’s disgraceful but not shocking given that the Democratic half of Congress is against immigration enforcement. It makes for a terrible situation. But a terrible situation does not empower the president to ignore the law.
If the judiciary is not the problem, and if Congress has mostly cut the district judges out of the immigration enforcement equation, why do the lower federal courts seem so ubiquitous when it comes to Trump’s deportation efforts? Because the president is violating Congress’s laws.
The deportation of Abrego Garcia was illegal. The deportation of hundreds of Venezuelans to a foreign country’s notorious prison with no due process was illegal. And when not outright violating Congress’s laws, the president is pressing laws to the breaking point — and, I believe, beyond. The invocation of the AEA in peacetime is historically unprecedented, legally untenable (in my view), and has never, in any event, been a basis for deportation with no due process. (That’s why one D.C. Circuit judge snarked that, during World War II, suspected “Nazis got better treatment” under President Franklin D. Roosevelt’s AEA proclamation than Trump, in peacetime, has given Venezuelans suspected of Tren de Aragua membership.) The deportation of legal aliens, in large part for conduct that would be First Amendment–protected if committed by an American citizen, is on the razor’s edge of legality — even if one believes, as I do, that Congress has given the executive branch that authority.
When presidents take actions that are either blatantly illegal or highly irregular, those actions are necessarily outside the parameters of ordinary enforcement. That is when federal courts get involved. The Constitution and Congress’s laws that bolster the Constitution’s substantive and due process protections provide extraordinary remedies when there is a basis to believe the executive branch is abusing its powers. Habeas corpus is available if a person’s detention or conditions of confinement violate the law — and the Supreme Court has now held that this includes when a person is deported while being detained. The Administrative Procedure Act may be invoked by plaintiffs who can show that actions by government agencies that carry out presidential policy are unconstitutional, illegal, or arbitrary and capricious. When a president follows immigration law, habeas and the APA will rarely if ever come into play.
There are other potential grounds for lawsuits. My purpose here is not to publish a catalogue. It is to illustrate that the courts are involved because of executive lawlessness and edginess, not because due process is too hard. And to the extent due process has become difficult to administer, it is because the political branches have neglected their duties to defend our borders, enforce our laws, and provide sufficient enforcement resources. That’s not the judges’ fault — not even the “communist” judges.
If you are a regular reader, you know Saturday mornings around here ain’t Pangloss. There are significant flaws in our immigration law. They need to be addressed — and I’d respectfully suggest that the president’s time would be better spent on that than on a specious AEA gambit that, even if it worked, would apply to maybe a thousand people (that’s a high estimate).
When illegal aliens are detained, it is too easy for them to seek asylum, withholding of removal (the remedy dubiously granted to Abrego Garcia), and protection under the 1984 Convention Against Torture and Cruel, Inhuman or Degrading Treatment or Punishment (CAT). This dysfunction reached its nadir under Biden, whose administration took the position that, because the United States has legal processes that are triggered when these remedies are sought, every non-American on the planet has a right to enter our country illegally to seek them.
Asylum and similar benefits are not rights. Remember, we started with the Supreme Court’s acknowledgment of “the power of Congress to exclude aliens altogether from the United States.” Since our nation needn’t admit aliens at all, asylum and similar benefits are discretionary acts of clemency. It is only sensible that a nation with more than 20 million aliens living in it illegally — a figure greater than the populations of about two-thirds of countries in the world — should shut its gates to all but perhaps a handful of the most aggrieved foreigners until the illegal-alien population is reduced to a manageable amount. That would promote legal immigration and hopefully induce people who want more generous asylum to support stable border enforcement.
As Rich Lowry wrote this week, the standards for seeking withholding of removal are too lax (a point on which I followed up, here, and Rich and I discussed it in depth on our podcast). If we’re going to have withholding of removal at all (and I would suspend it until there is a significant reduction in the illegal-alien population), we should go back to the original (i.e., pre–President Jimmy Carter) standard: Limit it to fear of persecution on grounds of race, religion, or political viewpoints. Expanding it to fear of persecution based on membership in a “particular social group” was an invitation to mischief that the left has gleefully taken up. Asylum should not mean accepting people because of crime problems or run-of-the-mill hostility in their home countries.
Asylum, furthermore, is supposed to be a temporary remedy. When the strife in the native country that was the pretext for asylum has dissipated, the asylees are supposed to go home. For too long, grants of asylum and similar temporary, discretionary benefits have been treated as entitlement to permanent settlement in the United States.
We should never have joined CAT at all — it was open for ten years before President Bill Clinton ratified it with the support of a heavily Democratic Congress. Our country has the Eighth Amendment, laws against torture, and prisons that — though far from perfect — are humane because our standards are high. We had no need to scratch the transnational progressive itch to join the standards of the “international community,” which — if we judge what the standards do rather than what they say — are often subpar (and in many places far worse than that). If an alien cannot qualify for asylum because of a credible fear of persecution, CAT should not be an alternative basis for admission.
There are other badly needed reforms, particularly with respect to the custody and disposition of alien children, as to whom misguided progressive policies going back decades have exacerbated the illegal-immigration crisis. I’ll return to those another day. Suffice it for now to say that, instead of demagoguing the judges, the Trump administration’s focus should be on enforcing Congress’s immigration laws and working with Congress to improve those laws. By imperiously attempting to dictate the law, President Trump has instigated a confrontation with the judiciary that he will lose — and not just on the immigration front.