Donald Trump Wants to Turn the Border Region Into a Police State
A Trump administration’s immigration policy would violate the rights of citizens and immigrants alike.
By Anthony D. Romero, ACLU Executive Director
The following is a section of a longer piece analyzing the constitutionality of some of Donald Trump’s policy proposals. Click here to read “Donald Trump: A One-Man Constitutional Crisis” in full.
“We’re rounding them up in a very human way, a very nice way.”
Donald Trump has repeatedly pledged to deport within two years every undocumented person in the United States, a population of over 11 million people, according to the Pew Research Center. Trump told 60 Minutes’ Scott Pelley that this massive round-up of undocumented immigrants would be carried out “in a very humane way, a very nice way.”
This, however, is impossible. Trump’s mass deportation scheme would mean arresting more than 15,000 people a day on immigration charges, seven days a week, 365 days a year.
From a civil liberties standpoint, there is no conceivable mechanism to accomplish the roundup that Trump has promised while respecting basic constitutional rights. The reason is simple: Undocumented immigrants are not readily identifiable as such, unless they come to the attention of the authorities.
Thus, the vast majority of noncitizens eventually removed are identified either through contact with the criminal justice system or are found and arrested in the process of attempting to enter the United States. To carry out his mass deportation scheme, Trump would have to cast his dragnet far deeper into American communities. Even if massive taxpayer dollars could be diverted to do so as a practical matter, the effort will erode the civil liberties of all.
Trump’s plan would undoubtedly violate the Fourth Amendment’s prohibition “against unreasonable searches and seizures.” As the ACLU has argued in its opposition to state immigration enforcement laws like Arizona’s “show me your papers” law, interior immigration enforcement relies on tactics like suspicionless interrogations and arrests, unjustified traffic stops, warrantless searches of workplaces and homes, and door-to-door raids of immigrant neighborhoods. And since immigration officers inevitably resort to racial and ethnic profiling to carry out their orders, they violate the Fifth and 14th Amendment guarantees of equal protection under the law.
But the constitutional problems with his plan don’t stop there. The Constitution requires that the government provide due process to individuals in deportation proceedings. Simply put: An immigrant facing deportation gets to go before an immigration judge and make her case against removal, and the Constitution requires federal court review of the legality of a removal order.
Congress has also created a variety of humanitarian grounds for relief from deportation, such as to provide trafficking victims and survivors of domestic abuse protection from harm. Our immigration courts are also presently weighed down by staggering funding problems and backlogs — immigrants facing removal already have to wait an average of 635 days for an immigration hearing. If Trump were to try and make good on his promise to speedily deport more than 11 million people, he could only do so by trampling on the Fifth Amendment’s due process protections.
To compound the problems with Trump’s undocumented immigrant removal plan even more, the candidate has pledged to detain all undocumented immigrants crossing the border “until they are sent home.” This “no-catch-and-release” policy would once again violate undocumented immigrants’ right not to be deprived of their liberty without due process of law under the Fifth Amendment.
These due process principles, according to longstanding Supreme Court precedents, apply “to all persons within the United States, including aliens, whether their presence is lawful, unlawful, temporary, or permanent.” Immigration detention can only be applied constitutionally when it is necessary to carry out deportation — for example, to deal with an individual who presents a flight risk. And the only way to assess these risks is at a bond hearing presided over by an immigration judge.
Undocumented immigrants who have done nothing wrong, however, need not worry because President Trump will create an “expedited process” to allow “the good ones” to reenter the country. But this, like the rest of Trump’s deportation proposal, is fantasy.
The wait for a U.S. visa can already stretch into the decades. And regardless, under current law, the vast majority of undocumented immigrants deported by a Trump administration would be subject to a 10-year bar from re-entering the country. Thus Trump’s proposal that “the good ones” may return is an empty promise, as preposterous and legally unsound as the rest of his mass deportation scheme.
Last November, Trump provided an example of what his deportation plan would look like. During a Republican presidential debate in Milwaukee, Trump said that the model for his plan was an aggressive immigration enforcement campaign undertaken by the Eisenhower administration in 1954 and 1955.
“‘I like Ike, right? The expression. ‘I like Ike,’” Trump told the crowd. “Moved a 1.5 million illegal immigrants out of this country, moved them just beyond the border. They came back. Moved them again beyond the border, they came back. Didn’t like it. Moved them way south. They never came back.”
While experts differ over how many people were in fact deported during Eisenhower’s campaign, the conditions they experienced during their deportation by land, sea, and air were often cruel and dehumanizing, according to historian Mae Ngai. She writes in her book, “Impossible Subjects,” that in one instance, 88 undocumented immigrants died of heat stroke after they were rounded up in 112-degree heat and dumped in the Mexican desert. In another episode, a Mexican labor leader described undocumented immigrants being brought into Mexico “like cows” on trucks and then dropped off 15 miles away from the border in the desert. One congressional investigation compared a deportation vessel packed with undocumented immigrants to an “eighteenth century slave ship” and a “penal hell ship.”
This spectacular act of government cruelty that Trump wants to use as a model was known as “Operation Wetback” — an ethnic slur for undocumented Mexicans living in the United States.
There is no way around it: Donald Trump’s deportation policy would be an unconstitutional apparatus of human misery, which would effectively turn large areas around the Southwest border into a police state.
“Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States …”
Donald Trump’s immigration policy, however, isn’t just about deportation, but exclusion, too.
In the aftermath of the San Bernardino shooting in December 2015, Trump called for “a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on.” He reiterated this call after the latest mass shooting at an LGBT nightclub in Orlando.
Trump then went even further, arguing that the immigration system itself was to blame because the shooter’s parents emigrated from Afghanistan to the United States. “The bottom line,” he said in a speech last month, “is that the only reason the killer was in America in the first place was because we allowed his family to come here.” Trump’s message couldn’t be any clearer: Immigrants and their American-born descendants, particularly Muslims, aren’t really Americans. Worse, they’re a potential fifth column subverting the nation from within. In a nation of immigrants, this sentiment is as un-American as it gets.
To carry out his proposed Muslim ban, Trump has pointed toward executive authority under immigration law “to suspend entry into the country of any class of persons that the President deems detrimental to the interests or security of the United States.” But his temporary ban of all Muslims entering the country would violate the Constitution for many reasons. By singling out Muslims, his entry ban would violate the establishment clause of the First Amendment by explicitly disapproving of one religion and implicitly favoring other faiths.
In attempting to defend Trump’s religious ban, some commenters have noted that there is a long history of race discrimination in U.S. immigration policy. But there has never been an immigration ban on the basis of religion. In part, this likely reflects the priority of religious neutrality since the founding of the nation.
Were Trump to apply his ban to Muslim U.S. citizens or lawful permanent residents who left and tried to reenter the country, he would be proposing a blatant violation of the Constitution in two more areas. First the government is forbidden under the Fifth and 14th Amendments from revoking an American’s citizenship and banishing him based on the person’s creed.
Second, any religion-based bar on lawful permanent residents trying to reenter the country would violate the due process clause. As the Supreme Court ruled in 1953, a lawful permanent resident’s “status as a person within the meaning and protection of the Fifth Amendment cannot be capriciously taken from him.”
Trump’s Muslim ban could also run afoul of international law, such as the Refugee Convention and the Convention Against Torture, by refusing asylum to people fleeing persecution and violence. And aside from the constitutional and international law problems, there’s another solid reason for Trump to reconsider his discriminatory proposal. “It would make the United States a virtual pariah among nations,” constitutional scholar Jonathan Turley told The Washington Post.
