How Will We Know If They Are Serious?
Spotting early warning signs of a real mass deportation
There are a range of plausible bad outcomes in American deportation policy over the next four years, from century-defining atrocity to just the normal cruelties of the US immigration system. There’s also going to be a lot of big schoolyard bully talk. Remember in 2017 when Trump’s (now-to-be) Border Czar Tom Homan said that all undocumented immigrations “should be afraid” and then they failed to even come close to Barack Obama’s deportation pace?
So what will be the early signals of a true mass deportation, or at least a major increase in deportations?
It’s going to be a little hard to tell at first. There’s likely to be a flurry of immediate announcements as early as the afternoon of January 20. But while some of those announcements will have real policy implications, a lot of them will be deportation theater. True mass deportation, if it does happen, will take time to escalate. Is that happens, 2025 is not likely to be the worst of it.
“Mass deportation” puts a premium massive numbers. Remember: The United States already deports people by the tens of thousands, regularly breaking up families and detaining people in horrible conditions in remote private prisons in the process. Trump himself defines his goals in terms of large numbers, saying he wants to break President Eisenhower’s record from Operation Wetback. If taken literally, that means roughly one million deportations over a 12 month period.
In Trump’s first term, he failed to reach the 100,000 mark in any year for removals from inside the United States. The current immigration enforcement system, as presently constituted, probably cannot carry out an Operation Wetback-style mass deportation. There are two reasons for this.
Legal process. Right now, new deportation cases that start inside the United States must go to Immigration Court, where there were more than 2 million cases pending in 2023. That backlog would make it difficult to dramatically increase the number of legal deportations that can happen.
Logistics. It’s not clear that Immigration and Customs Enforcement (ICE) as presently constituted has the manpower or the infrastructure to increase deportations much beyond Trump first term levels.
What we need to watch for are concrete steps that would allow ICE to break out of these constraints. If we see the Trump Administration take such steps, a serious escalation in deportations becomes more likely. If they don’t, it means Trump might settle for more in deportation theater rather than drastically more actual deportation. And given where we are right now, that might be a decent outcome, relatively speaking.
Legal Warning Signs
In 2023, the average case in Immigration Court took more than one thousand days to complete. If the Trump Administration wants to seriously increase the scale of interior deportations, they have to find a way around this traffic jam. They will want to find ways to arrest people, detain them, and deport them without any legal process, without people having the chance to try to get a lawyer, gather evidence, or plead their case to a judge.
Expedited Removal From the Interior
This is what scares me most. Trump already did it, in 2019. Watch for it to come back in 2025.
Expedited removal allows the US Government to immediately deport people without taking them to Immigration Court. It’s already used on a massive scale at the border for new arrivals. It can be invoked against anyone caught within 100 miles of the border who has not been present for two weeks. That’s already problematic.
But it can get worse.
The Immigration and Nationality Act contains a provision allowing the Executive Branch to expand this throughout the entire country. (You can thank Bill Clinton for that.) In principle, most undocumented immigrants should not be vulnerable because by law expedited removal would only apply to people who have been in the country for two years or less. On paper, that is.
The really scary part of expedited removal is exactly why Trump will love it: No Immigration Court. No due process whatsoever. No judge of any kind. No hearing of any kind. How do we know the person should even be deported? An ICE officer will decide. How do we know he or she has been here’s less than two years? An “immigration officer” decides.
In every American mass deportation, including Operation Wetback, US citizens have been deported in large numbers. That’s not an accident. Going massive necessitates skipping safeguards. The result is that immigration officers, whether by their own bigotry or under pressure to get numbers up, grab people who fit a profile. Anyone who vaguely resembles an ICE officer’s stereotype of an undocumented immigrant would be vulnerable. A mass deportation of immigrants can quickly become a racial deportation. That’s what scares me.
Expanding expedited removal requires some legal regulatory steps before it can be deployed in the field. The Trump Administration took those steps in the middle of 2019, but they were tied up in court until roughly mid-2020. By then the COVID pandemic had seriously curtailed interior immigration enforcement, so only immigration law obsessives were aware that it had even happened. We may not be so lucky this time. But the legal steps still have to come first, making this one of the early policy changes that could be a real warning of what is to come.
WHAT TO WATCH FOR: Expect immediate legal steps to expand expedited removal. If by some miracle they don’t move pretty quickly to do it, it will be a sign that they aren’t really committed to mass deportation.
Alien Enemies Act
President John Adams was not a friend to civil liberties. He left us a rarely used law which Donald Trump loved talking about on the campaign trail.
The law ain’t good. It allows the President to designate certain groups of “aliens” and “enemies,” and appears to allow their detention or deportation, maybe without a hearing. We don’t know much about how it would be applied outside of conventional wars like World War II. It’s only been invoked three times — WWII, WWI, and the War of 1812.
The practical attraction for Trump is the same as with expedited removal: Deporting people by fiat, without having to give them a hearing. Plus, it’s an antique law that degrades immigrants by its very title. So, Trump loves talking about it.
WHAT TO WATCH FOR: Legal steps to invoke the Alien Enemies Act for the fourth time in American history. We’ll have to examine the legalities and practicalities of how it works when they emerge. But concrete legal steps to deploy the Act will be a tangible sign of seriousness.
Large scale agreements to deport people to third countries
There’s one route around the Immigration Court backlog that is already open: ICE can try to deport people who already have final orders of removal against them. There are nearly 1.2 million such people inside the United States, and they can (in theory) be deported immediately without any further legal process. I think there’s a wide consensus among immigration lawyers that people with removal orders are at the top of the vulnerable list. I expect to see many targeted by ICE, which will deploy its rather significant surveillance resources to hunt some of them down.
At the same time, we don’t know how many of these 1.2 million are really deportable in practice. For many reasons. A big one is that there has to be a country to send them to. One big reason final removal orders don’t get carried out is that some countries won’t let the United States deport their citizens, sometimes not at all, or sometimes only in small numbers. There are also many immigrants with final orders of removal who can theoretically be deported, but can’t legally be sent to the country from which they came because Immigration Judges found that they would be in danger of persecution or torture there. That means that in practical terms, despite a final order or removal they can’t really be removed because there is no place to send them.
To get around these problems, the Trump Administration will probably try to pressure countries to agree to take back third country nationals. Mexico has signaled some openness. But if such agreements only apply to newly arriving asylum-seekers or limit the numbers of people who can be sent back it might not matter much for deportation from American communities. (Which doesn’t mean they don’t matter, to be clear.)
And another thing: ICE would have to put in a lot of work to track down many of the people with final removal orders. That might tax ICE’s resources, which gets us to the next set of warning signs to watch for.
WHAT TO WATCH FOR: A large scale third country return agreement that could apply to people who are already inside the United States.
Logistical Warning Signs
Deportations take manpower, detention space, and transportation capacity. Just think of the numbers. If you wanted to transport, say, half a million people to foreign countries, how many airplanes would you need? How many buses would you need? How many beds in detention centers would you need, to gather people before you can put them on the planes?
The Money
Always start with the money. Republicans in Congress are already talking about pushing an early bill with around $100 Billion that lazy Beltway talk is calling “border spending.” But the word border may be doing a lot of work in DC. Is this really for more fortification of the actual border? Or is this for deporting people from inside the country, with “border” just a euphemism for all things immigration?
FWIW, $100 Billion is pretty close to the figure that Border Czar Homan has given for the price tag to meet Trump’s deportation goals.
WHAT TO WATCH FOR: Does Congress appropriate new money that can be used for interior removals, not only for the literal border?
The Infrastructure
Let’s assume they have the money they need. They still need to turn those dollars into actual capacity - which means, first and foremost, detention space, as well as planes, other vehicles, and facilities. Immediately after Trump won election, private prison companies were salivating because they assume that a lot of this money is going to go to them to build this infrastructure. And I’d suspect they’re right.
Speed will be of the essence here. If they try to build whole new brick and mortar detention facilities, they might not get usable detention space until well into Trump’s term. Instead, expect to also see a mixture of new construction as well as re-purposing of older buildings and rapid erecting of tents surrounded by barbed wire.
That’s why there is one other player to watch in this space: The National Guard. Trump and those close to him have talked about using state National Guard forces in a mass deportation effort for a long time. When people hear this, they often envision men in fatigues driving humvees through American cities hunting down immigrants to deport. That’s terrifying, and it could happen, maybe. But the National Guard’s biggest contribution to a mass deportation effort might be more on the logistics side. The military is really good at logistics, the kind of logistics required to move a large number of people to and fro, including over long distances. The same skills that are needed to rapidly construct military bases to house thousands of soldiers in the Saudi desert can be pretty readily applied to build a detention camp in Texas to detain thousands of people.
If you are following what this all means, it’s very dystopian. A massive detention camp, a place where the government forcibly concentrates people who are vilified by the government … what would be a name for that? Anyway, not to worry. It can’t happen here. Right?
WHAT TO WATCH FOR: Contracts and bids for private contractors to rapidly build detention facilities, or deployment of the National Guard (or anyone, really) to do the same. Also watch for concrete efforts to expand ICE’s transportation capacity.
The Personnel
It takes ICE a lot of manpower to carry out a deportation. To find the person. To arrest the person. To fill out the paperwork. To hold them in the first, local detention cell. To move them to another detention center. To make sure there is a government willing to take the person back. To get them there.
Recently there’s been some media coverage that has focused on how many ICE officers ICE needs. A recent NBC News story included this nugget:
It’s worth noting that this kind of operation took so many people and so much time because ICE was being very targeted. They were looking for five specific people who did not want to be found. Something to worry about is that ICE likely could have gotten five random people quite a bit faster. Once again, to get number up, safeguards must come down.
Adding personnel requires time. Recruiting and training people in the federal government is slow. So here, again, there may be expanded roles for both private contractors and National Guard troops who can take over some roles more immediately.
WHAT TO WATCH FOR: Hiring sprees at ICE, bids for private contracts to perform more duties that normally an ICE officer would do, and involvement of the National Guard to do the same.