The Volokh Conspiracy
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Trump's Illegal First-Day Executive Actions
Several of his announced actions are likely to be illegal, especially some related to immigration.
Donald Trump announced today a wide range of planned executive orders and other actions. Several of them are dangerous and illegal abuses of power. This post is a nonexhaustive list, focusing primarily on issues where I have some expertise, and (in many cases) I have written about them previously.
1. Denying birthright citizenship to children of undocumented immigrants.
This is blatantly unconstitutional. Section 1 of the 14th Amendment grants citizenship to anyone "born … in the United States and subject to the jurisdiction thereof." There is no exception for children of illegal migrants. I go over the relevant issues in detail in a recent Just Security article, where I also address various specious arguments to the effect that children of undocumented immigrants aren't covered because their parents are not "subject to the jurisdiction" of the US. I think it highly likely that courts will strike down this action, as the text and original meaning are clear, longstanding Supreme Court precedent points in the same direction, and there is broad (though not quite universal) cross-ideological agreement on the subject among legal scholars.
2. Using the Alien Enemies Act of 1798 as a tool of mass deportation.
The Alien Enemies Act of 1798 is a component of the notorious Alien and Sedition Acts. It is the only part of that legislation that remains on the books today. The Alien Enemies Act allows detention and removal of migrants only when there "is a declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government." In that event, the president is given the power to detain or remove "all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of fourteen years and upward, who shall be within the United States and not actually naturalized."
As I explained in this article, the Alien Enemies Act cannot be used in our current situation because we are not in a "declared war" with any foreign nation, and there also is no "invasion or predatory incursion is perpetrated, attempted, or threatened against the territory of the United States by any foreign nation or government." My article also explains why illegal migration and cross-border drug-smuggling do not qualify as "invasion" and certainly not as an invasion by a "hostile nation or government." For more on why illegal migration and drug smuggling do not qualify as "invasion" and why a contrary ruling would set a dangerous precedent, see my March 2024 Lawfare article on this subject.
If Trump is able to use the Alien Enemies Act, notice that it would allow detention and deportation even of legal immigrants (so long as they have not yet been naturalized).
I think there is a good chance courts will rule against Trump on this issue, because the legal case against his position is very strong. But there is a risk that judges might conclude (wrongly) that the meaning of "invasion" is a "political question" that courts are not allowed to address.
3. Declaring a national emergency at the southern border.
The purpose of this is, presumably, to allow the use of the military for border enforcement, and to divert various military funds for that purpose. In my view, this is illegal for the same reason it was when Trump tried to do the same thing in 2019, in order to facilitate diversion of military funds to build his border wall. An emergency is a sudden, unexpected crisis, not an ongoing policy issue on which the president wants to redirect resources in ways not authorized by Congress:
If the president can declare an emergency and tap a vast range of special emergency powers anytime he wants for any reason he wants, that makes a hash of the whole concept of an emergency, raises serious constitutional problems, and creates a dangerous concentration of power in the hands of a single person.
It makes much more sense to interpret the National Emergencies Act as only allowing an emergency declaration in a situation where an emergency actually exists - defined as some sudden crisis that cannot be addressed swiftly enough through ordinary political processes. By that interpretation, the situation at the border doesn't even come close to qualifying.
There is no sudden crisis at the border right now. In fact illegal entries are down to their lowest level since August 2020, when the rate was unusually low due to the Covid pandemic. What remains is an ongoing policy issue, on which there is longstanding disagreement. In my view, the best way to address it is to make legal immigration easier. But those who disagree cannot get around using ordinary legislative processes by invoking an "emergency."
On this issue, I am much less confident about what courts might do than on 1 and 2 above. I fear that judges might (incorrectly) defer to the the president on the issue of whether an emergency exists.
Even if Trump prevails on the issue of whether he can declare an emergency, the specific actions he might want to adopt as a result might be illegal for other reasons, as was his attempted border wall funding diversion in 2019.
4. Declaring a national energy emergency.
I have the same objection to this as to the border wall emergency: There is no sudden crisis here, only an ongoing longterm policy issue. US energy production has greatly increased over the last several years, and prices have fallen since the inflation of 2021-23. I know much less about energy policy than border policy, so it is possible there is an angle I am missing here.
5. Designating Latin American drug cartels as terrorist organizations.
Terrorists are people who target civilians to further political causes. Drug cartels and gangs also sometimes resort to violence. But it's to protect and enhance their role in illegal markets. There is a fundamental difference between ordinary crime and terrorism. If drug cartels are terrorist organizations, so too are virtually any organized crime organizations that might resort to violence.
I worry that this designation is intended to pave the way to escalate the War on Drugs through military intervention in Mexico. That would be a disastrous idea that would make the already awful War on Drugs even worse than it already is, poisoning relations with an important neighboring state in the process. See my discussion of this issue here.
6. "Taking back" the Panama Canal.
Trump says he plans to "take back" the Panama Canal. If he means doing so by force, it would be a war of aggression in blatant violation of international law, similar in that respect to Vladimir Putin's invasion of Ukraine. Perhaps it was a mistake for the US to transfer the Canal to Panama in 1999. But we did do it, and there is no remotely plausible moral or legal justification for seizing it now. As with possible attacks on Mexico, it would poison relations with a key ally and damage the international standing of the US for no good reason.
