The Hill                               December 26, 2024

   Trump saw a number of his policies tied up in legal battles, with some rejected by the courts on the merits, due to technicalities or on procedural grounds.

He also doesn’t have the workforce to match his rhetoric as he has suggested that any of the nation’s roughly 13 million undocumented migrants could face deportation.

   “I think he’s going to violate every norm and law in order to do what he wants. The question is whether he really is going to have a [deportation] program as expansive as he’s described, because the reality of what he’s described would be pretty devastating to the national economy and the workforce,” said Rep. Veronica Escobar (D-Texas), whose district lies along the U.S.-Mexico border.

   Despite questions on the economic wisdom of mass deportations and the feasibility of carrying them out, Trump is inheriting a supercharged immigration enforcement apparatus with ample powers to find causes to deport individuals.

   But he promised enforcement to dwarf the efforts of prior administrations — a tall order, given the Biden administration hit a 10-year high with 271,484 deportations in 2024, according to the annual Immigration and Customs Enforcement (ICE) report.

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An expansion beyond that existing deportation behemoth is likely to face new challenges, whether logistical, legal, economic or political.

   Trump faces a difficult landscape when it comes to carrying out the level of deportations he promised voters.

   He has suggested anyone not legally present in the country could face removal, a departure from administrations of both parties that have focused limited resources on deporting those who present a public safety risk. Doing so would require an astronomical budget increase.

   Incoming border czar Tom Homan acknowledged the size of the deportation program would depend on the budget allocated by Congress, but he said the incoming administration would target all undocumented immigrants for deportation.

   “I don’t have a number. We want to arrest as many people as we can that are in the country illegally,” Homan said. “If you’re here illegally, you’re not off the table. It’s a violation of the law; it’s a crime to enter this country illegally.”

   The American Immigration Council estimates deporting the nation’s estimated 13 million undocumented people at a rate of 1 million per year would cost about $88 billion, exceeding the entire current budget of the Department of Homeland Security.

   “There’s a lot of unknowns right now, until we see exactly what the Republicans are planning in terms of the budget for this program, and until we hear from the future president himself whether he plans to deport as many people as he promised, all of this is hypothetical,” Escobar said.

   She noted that Trump has shifted some of his rhetoric after facing pressure from major agricultural lobbies and business leaders fearful of losing their workforce.

   “He then started talking about focusing only on criminals, which is to a large extent what happens today anyway,” Escobar added, noting that the Biden administration prioritizes removal of those with serious criminal records. 

   Immigrants — a group with lower crime rates than native-born residents — contend with extra layers of policing from agencies including ICE, Customs and Border Protection and the Border Patrol, in addition to elevated consequences for illicit conduct ranging from infractions to felonies.

   Rep. Adriano Espaillat (D-N.Y.), who will take over as chair of the Congressional Hispanic Caucus in January, pointed to “crimes involving moral turpitude,” a tool in immigration law that federal officials can use to render certain immigrants deportable or to prevent their status cases from going forward.

   “If you went to the candy store, you play the numbers, and the candy store got raided, and you were there, they took you in, and if you didn’t have your papers, that was considered, or is considered, a deportable offense. Or urinating in the streets, soliciting a prostitute, jumping the turnstile, these are all deportable offenses,” Espaillat said.

   Immigration advocates say there are few obstacles in place to prevent the incoming Trump administration from using those tools to their fullest extent — beyond the sheer amount of funding required to remove so many people.

   “It could be funding. I think the legal tools are available to them. Certainly the TPS status and DACA can be revoked by the executive,” said Rep. Zoe Lofgren (D-Calif.), referring to humanitarian programs that rely on executive action to grant protections from deportation.

   “Under the 1996 [Illegal Immigration Reform and Immigration Responsibility] Act, which I voted against, you can do expedited removal for people who’ve been in the United States undocumented for less than two years within 200 miles of the border. Now that includes coasts, so that’s 80 percent of the U.S. population. The question is, what kind of process will be used to determine ‘two years or less,’ since the majority of individuals who are undocumented have been here way more than two years, but we’ll see what kind of efforts they make.”

   The Trump team’s own cost projections fall short of the billions others say they’ll need, with Homan saying he would need at least 100,000 detention beds and a significant increase in border agents to fulfill their goals, something he previously said would require $86 billion.

Some Republicans are rallying to get Trump the resources he needs. In a letter spearheaded by Sen. Rick Scott (R-Fla.) and signed by conservatives in both chambers, lawmakers called for funding for the hiring of “thousands” more border and immigration agents to ensure a “substantial increase” in detention facilities and to “encourage self-deportation” with a new set of financial penalties for those not here lawfully.  

   Some of Trump’s plans are sure to face legal challenges from immigration and civil rights groups. He has promised to end birthright citizenship, a right enshrined in the Constitution and something that if pursued would be sure to ignite a battle.

Rep. Jamie Raskin (D-Md.), the incoming ranking member on the House Judiciary Committee and a former constitutional law professor, noted that Trump would have to undergo the lengthy process to amend the Constitution in order to carry out such a goal.

   “The once and future president is talking about abolishing birthright citizenship, which is guaranteed by the first sentence of the 14th Amendment. So if that is indeed their first executive order, which is what they’re talking about, we will have to fight them on that. If they are proposing to do it the right way by amending the Constitution, we will oppose it,” Raskin said.

  Trump has also said he will use the military to aid in carrying out mass deportations, a controversial use of the armed forces that could exceed some authorities. Immigration advocates believe this is illegal, as even emergency powers do not permit the military to arrest and detain people.

   Opponents scored numerous court wins in challenging immigration policies under Trump’s first term, fighting off efforts to end protections against deportation, a citizenship question on the census and other policies.

   But Trump’s evolution on his “Muslim Ban” shows the possibilities of taking repeated bites at the apple. Though courts struck down his first two versions of the travel ban, Trump kept tinkering with countries on the list to fight claims of discrimination.

   The Supreme Court ultimately upheld the third iteration of the ban, one that also barred travelers from North Korea and Venezuela.

   A number of Trump’s previous immigration plans weren’t thrown out on the merits but because of issues with how his administration rolled them out. Several of his immigration policies were found to have violated the Administrative Procedure Act, which spells out strict guidelines for how the government must craft new rules and regulations.

   That was the case for one Trump policy seeking to force would-be asylum-seeking migrants to first seek the protections elsewhere on their journey, with a court rejecting government arguments they needed to bypass required advanced notice to avoid a surge in applications. In other cases, courts struck down Trump policies crafted through executive order that went beyond the powers of the office.

   That included Trump’s effort to end protection for Dreamers and seeking to use an emergency declaration to fund his border wall in excess of what had been appropriated by Congress.

And Trump also saw some of his policies unwound due to improperly filled vacancies later in his term.  As Senate-confirmed officials left their posts, some immigration positions were filled by figures who never went through the vetting process. Courts later tossed some orders that were signed by acting officials in the Department of Homeland Security such as Chad Wolf, determining they did not have the authority to enact such measures. If Trump fills any vacancies by bypassing the Senate confirmation process, he could again find orders from his acting officials are invalidated. 

   But Escobar wasn’t sure those laws would ultimately be much of a barrier for Trump. “Lawsuits will slow him down,” she said.  “Honestly, he doesn’t have the people around him anymore who were encouraging him to adhere to norms and laws, and I think he’s going to trample over the Constitution. I think he’s going to trample over existing law. … I feel like he’s going to be violating laws and the Constitution left and right.”