American Civil Liberties Union TRUMP ON IMMIGRATION 1
If given a second term, Donald Trump promises
to decimate American communities by targeting
immigrants who are already contributing members
of society and blocking new immigrants from
coming lawfully to the United States. Trump has
made clear that he will double down on what he did
during his presidency — without regard for the law,
decency, or common sense.
Indeed, Trump has promised to be far more
aressive in a second term, emboldened by close
advisers, like Stephen Miller, to launch a “shock-
and-awe blitz” of executive orders and actions that
will target millions of immigrants and their families
and threaten the freedom and security of everyone
in the United States. “Trump will unleash the vast
arsenal of federal powers to implement the most
spectacular migration crackdown,”Miller told The
New York Times in November 2023.
1
Former senior
Trump officials helped write Project 2025, a detailed
plan to overhaul federal agencies that includes more
than 175 immigration actions.
2
In this paper, we focus on three areas of significant
threats to immigrants and the U.S. communities and
families they are a part of, should Trump be elected
to a second term. The first is mass deportation:
1 Charlie Savage, Maie Haberman & Jonathan Swan, Sweeping Raids, Giant Camps and Mass Deportations: Inside Trump’s
2025 Immigration Plans, N.Y. Times (Nov. 11, 2023), https://www.nytimes.com/2023/11/11/us/politics/trump-2025-immigration-
agenda.html.
2 See Cecilia Esterline, Project 2025: Unveiling the Far Right’s Plan to Demolish Immigration in a Second Trump Term, Niskanen
Ctr. 1 (Feb. 2024), https://www.niskanencenter.org/wp-content/uploads/2024/02/Project-2025-Unveiling-the-far-rights-plan-
to-demolish-immigration-in-a-second-Trump-term-1.pdf.
3 Savage, Haberman & Swan, supra note 1.
A central promise of Trump’s 2024 campaign is to
“carry out the largest domestic deportation operation
in American history” once in office.
3
Second,
we explore some of Trump’s and his surrogates’
plans to target the core rights of children and
families: attacking birthright citizenship, barring
undocumented children from schools, and again
forcibly separating children from their parents at
the border. Finally, we will turn to the Trump team’s
strategy to dismantle our nation’s asylum protection
system and attack human rights at the border.
These threats — among many others — underscore
the need for elected officials in Congress, state and
local governments, and the American people, to
come together now to begin planning a sustained
and coordinated response. We outline that response
below. In the coming months, the ACLU and our
partner organizations will continue to sound the
alarm about and plan for the full panoply of Trump’s
threats on immigration and beyond.
In cataloging the many potential threats, we cannot
lose sight of the big picture: A second Trump
administration will claim a mandate to decide
immigration policy based on xenophobia and racism
— flouting principles of fairness, human dignity, and
TRUMP ON IMMIGRATION
TEARING APART IMMIGRANT FAMILIES,
COMMUNITIES, AND THE FABRIC OF OUR NATION
American Civil Liberties Union TRUMP ON IMMIGRATION 2
the rule of law. In his campaigning over the last
year, Trump has further escalated his anti-immigrant
demagoguery, saying for example:
“They’re poisoning the blood of our country.
That’s what they’ve done. They poison — mental
institutions and prisons all over the world. Not
just in South America. Not just the three or four
countries that we think about. But all over the
world they’re coming into our country — from
Africa, from Asia, all over the world. They’re
pouring into our country.” — Dec. 16, 2023, New
Hampshire rally
“They’re rough people, in many cases from
jails, prisons, from mental institutions, insane
asylums. You know, insane asylums — that’s
‘Silence of the Lambs’ stuff.” — March 4, 2024,
interview with Right Side Broadcasting Network
4
“The Democrats say, ‘Please don’t call them
animals. They’re humans.’ I said, ‘No, they’re not
humans, they’re not humans, they’re animals’ …
Nancy Pelosi told me that. She said, ‘Please
don’t use the word animals when you’re talking
about these people.’ I said, ‘I’ll use the word
animal because that’s what they are.’”— April 2,
2024, Grand Rapids, Michigan, campaign event
Chillingly, the cruelty, overt racism, and deeply
damaging policies of the Trump administration from
2017 to 2021 reportedly could have been even worse,
because many officials refused to implement some
of Trump’s most extreme plans, such as a suestion
to electrify a border wall, and add “spikes on top
that could pierce human flesh,” and a “water-filled
trench, stocked with snakes or alligators.” We don’t
4 Danielle Kurtzleben & Franco Ordoñez, What Did Trump Say? Explaining the Former President’s Favorite Talking Points, Nat’l
Pub. Radio (May 11, 2024, 7:00 AM), https://www.npr.org/2024/05/11/1245900177/trump-rally-speech-talking-points-rhetoric-
immigration-abortion.
5 Michael D. Shear & Julie Hirschfeld Davis, Shoot Migrants’ Legs, Build Alligator Moat: Behind Trump’s Ideas for Border, N.Y.
Times (Oct. 2, 2019), https://www.nytimes.com/2019/10/01/us/politics/trump-border-wars.html. Trump denied the initial
reports of these remarks, only to later affirm his desire to see spikes added to a border wall; Michael Crowley, Trump Denies
Considering a Border Moat, N.Y. Times (Oct. 2, 2019), https://www.nytimes.com/2019/10/02/us/politics/trump-alligator-
snakes-moat.html.
6 Brett Samuels & Rebecca Beitsch, How Trump’s Second Term Could Be Different from His First, The Hill (Apr. 28, 2024, 12:00
PM), https://thehill.com/homenews/campaign/4624955-trump-second-term-differences-loyalists/; Debra Perlin, Who Would
Help Trump Carry Out His Promised “Purge” of the “Deep State”?, Citizens for Resp. & Ethics in Wash. (May 8, 2024), https://
www.citizensforethics.org/reports-investigations/crew-investigations/who-would-help-trump-carry-out-his-promised-purge-of-
the-deep-state/.
7 Miles Taylor. Blowback: A Warning to Save Democracy From the Next Trump. Miles Taylor. P. 191. (2023).
8 Esterline, supra note 2, at 6.
9 Heritage Foundation. Mandate for Leadership: The Conservative Promise 145 (Paul Dans & Steven Groves eds., 9
th
ed. 2023)
describing as “unlawful programs” DACA and “mass parole” for “Afghans, Ukrainians, Venezuelans, etc.”).
know if those pronouncements were real threats
or mere saber rattling, but Trump reportedly also
suested to aides that officials should shoot
migrants in the legs.
5
In assessing the credibility
of such threats, we need only recall the actual
implementation of a family separation policy that
literally wrenched children from their parents’ arms
— creating lasting and irreversible harm. Many would
have thought the design and implementation of that
policy unthinkable, and yet Trump did it, separating
about 6,000 families, whom the ACLU successfully
represented in litigation.
Trump and his advisors are now working assiduously
to make sure that the second time around, career
officials will not stand in the way of his plans.
Instead, they will install Trump loyalists across the
White House and Department of Homeland Security
(DHS).
6
If they succeed, we may see a second Trump
administration take actions that seem — even after
four years of his first term — beyond the pale. For
example, a former senior Trump administration
official foresees “the regular use of tear gas to repel
migrants, the deployment of heat-ray technology to
make asylum-seekers feel like their skin is on fire, or
shoot-to-kill orders for anyone who rushes the U.S.
border.”
7
The Niskanen Center, cataloging Project
2025’s immigration proposals, foresees 700,000
holders of Temporary Protected Status, 500,000
young adults known as Dreamers, and more than
175,000 Ukrainians all losing their legal protections
— “pushing them out of status or the country”
8
— a
fate that might be shared by tens of thousands of
Afghans, Venezuelans, Cubans, and Haitians, all
facing dangerous conditions at home.
9
American Civil Liberties Union TRUMP ON IMMIGRATION 3
OVERALL RESPONSE
Courts
As we detail below — and as Trump and his advisors
well understand — he simply cannot accomplish
his immigration agenda without violating the
Constitution and federal laws. Thus, just as it
was from 2017 to 2021, litigation will be a critical
component of the response.
The experience of the previous Trump years
underlines the practical importance of legal action.
Lawsuits stopped many illegal Trump administration
policies, including those that aimed to separate
families at the border,
10
arbitrarily cut off access
to asylum,
11
strip hundreds of thousands of people
of protection under Temporary Protected Status
(TPS),
12
and Deferred Action for Childhood Arrivals
(DACA),
13
add a citizenship question to the Census
to chill participation by immigrant and mixed-
status families,
14
and prevent abortion access
for unaccompanied immigrant minors.
15
Even
in cases that did not ultimately result in a legal
victory, litigation significantly mitigated harms. For
example, while injunctions against the Muslim ban
were ultimately reversed by the Supreme Court,
challengers succeeded in forcing the administration
to narrow its scope twice and setting the conditions
for its later revocation.
16
To be sure, Trump has made a significant mark on
the judiciary, and it is not difficult to find recent
examples where the courts have failed to protect
rights.
17
But those facts should not be overstated:
It is also true that Trump-appointed judges have
found Trump policies unlawful,
18
and time and again,
courts that are sometimes assumed to be skeptical
of immigrants’ rights have instead acted to protect
10 Ms. L. v. ICE, 310 F. Supp. 3d 1133 (S.D. Cal. 2018).
11 East Bay Sanctuary Covenant v. Trump, 349 F. Supp. 3d 838 (N.D. Cal.), stay pending appeal denied, 993 F.3d 640 (9th Cir.),
application for stay denied, 139 S. Ct. 782 (2018), aff’d, 993 F.3d 640 (9th Cir. 2021).
12 Ramos v. Mayorkas, No. 18-16981, 2023 WL 4363667 (9th Cir. June 29, 2023).
13 DHS v. Regents of the Univ. of California, 140 S. Ct. 1891 (2020).
14 Department of Commerce v. New York, 139 S.Ct. 2551 (2019).
15 Garza v. Hargan, No. 17-CV-02122, 2017 WL 4707287 (D.D.C. Oct. 18, 2017).
16 Timeline of the Muslim Ban, Muslim Ban Timeline, Am. C.L. Union of N. Cal. (Jan. 27, 2017),
https://www.aclunc.org/sites/muslim-ban/.
17 See Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022) and Trump v. Hawaii, 585 U.S. 667 (2018).
18 E.g., Cap. Area Immigrants’ Rts. Coal. v. Trump, 471 F. Supp. 3d 25 (D.D.C. 2020).
19 Parada v. Anoka Cnty., 54 F.4th 1016 (8th Cir. 2022); United States v. Texas, 97 F.4th 268 (5th Cir. 2024).
them.
19
Below, we outline ways in which Trump’s
policies are illegal and unconstitutional, and point
to prior litigation that has succeeded in pressing
relevant claims.
Congress
The gravity of Trump’s threats and the possibility of
robust court action should not obscure the need for
other leaders in our democracy to act. We anticipate
that in a second term, Trump will send a draconian
anti-immigrant bill to Congress, framed as needed
for “border security,” but in fact expanding the
anti-asylum policies of his first term and attacking
both immigrant communities and legal immigration
pathways.
Instead of negotiating on these terms, Congress
can and must use the power of the purse, and
its oversight authorities, to constrain a second
Trump administration’s anti-immigrant agenda. If
the opposition controls either or both chambers
of Congress in a Trump administration, members
of Congress who are pro-immigrant can use the
appropriations process to effectively thwart Trump’s
ability to carry out mass detention and deportations.
The aressive use of oversight hearings, grilling
of Trump officials, and issuing of subpoenas for
information and documents will also all be critical.
Moreover, Trump’s announced assault on our
nation’s immigrant communities should prompt
members of Congress to make a path to citizenship
for millions of long-standing U.S. residents a non-
negotiable, central demand in negotiations over
immigration reform legislation. These members of
Congress should also go on the offense with their
own package of solutions to effectively manage the
border through, for example, increased capacity
for screening and receiving people seeking entry.
Polling shows that the public supports that
American Civil Liberties Union TRUMP ON IMMIGRATION 4
approach
20
— not the Trump campaign’s xenophobic
agenda.
States & Municipalities
Likewise, at the state and local level, we need
elected officials to begin coordinating and
planning now to protect their communities from
Trump’s attempts to ravage them. Collective and
coordinated action among committed officials
will be vital to anticipating, revealing, and quickly
responding to the Trump administration’s blitz of
anti-immigrant actions, particularly in major cities.
States can take affirmative measures to protect
their residents right now by funding legal counsel
and other supports that help immigrants and mixed
status families continue contributing and thriving
in American communities. In addition, states can
expand existing cooperation among themselves to
provide legal representation, track and monitor a
massive expansion of deportation and detention
actions, and document and address abuses such
as racial profiling and illegal stops and punitive
use of immigration detention. Legislatures and city
councils can enact and update their protections,
including by erecting a firewall between state
and local resources and federal immigration
enforcement.
SPECIFIC RESPONSES
Mass Deportations
If re-elected, Trump plans to quickly and vastly
expand deportation operations on “day one” in the
interior of the United States, deporting millions
of people a year and detaining untold numbers of
20 Public Opinion Attitudes on Immigration, Glob. Strategy Grp. (April 2023), https://static1.squarespace.
com/static/5b60b2381aef1dbe876cd08f/t/643dc16e4e63997b71eb0eca/1681768814358/
Immigration+Hub+Spring+Survey+Deck+F04.17.23.pdf?link_id=5&can_id=f3576b052935028627307e1f5d534555&source=ema
il-immigration-hub-what-blueprint-polling-gets-wrong-on-immigration-proposal-currently-in-discussion.
21 Aaron Rupar (@atrupar), X (Mar. 4, 2024, 4:22 PM), https://x.com/atrupar/status/1764763255564628428; Savage, Haberman &
Swan, supra note 1.
22 Muzaffar Chishti & Sarah Pierce, Trump’s Promise of Millions of Deportations Is Yet to Be Fulfilled, Migration Pol‘y Inst. (Feb.
3, 2021), https://www.migrationpolicy.org/article/trump-deportations-unfinished-mission.
23 The Removal System of the United States: An Overview, Am. Immigr. Council (Aug. 9, 2022), https://www.
americanimmigrationcouncil.org/research/removal-system-united-states-overview.
24 Bureau of Just. Stat., Federal Law Enforcement Officers, 2020 — Statistical Tables 1 (2022), https://bjs.ojp.gov/library/
publications/federal-law-enforcement-officers-2020-statistical-tables; U.S. Dep’t of Homeland Security, Agency Financial
Report FY 2023, 57 (2023), https://www.dhs.gov/sites/default/files/2023-11/2023_1114_dhs_agency_financial_report_fy2023.pdf.
people in massive camps pending deportation.
21
While Trump made similar promises in his first term,
he was never able to carry out deportations on that
scale.
22
That is because doing so is an enormous
project that would entail restrictions on basic
freedoms core to American life.
Consider the mechanics of the planned deportation
effort. To deport immigrants who lack legal status
on the scale Trump envisions, he would need to
arrest millions of individuals; place them in removal
proceedings before immigration judges; litigate
those cases in the immigration courts; resolve any
appeals; and then actually remove them from the
United States — every year.
23
Each stage of this
process has its own requirements and procedures
under the Constitution and the immigration statutes
— and no part of it has ever operated at anything
approaching the scale and speed that Trump’s
plan requires. There can be no doubt that Trump
would attempt to defy constitutional and other legal
protections in service of his draconian goal.
Trump has also mischaracterized any decision not to
detain an individual as a “catch and release” policy,
and he will almost certainly seek to detain everyone
he arrests through all of the stages of the removal
process, in part to coerce them into giving up their
rights to fight deportation. The federal deportation
system is already massive; the Department of
Homeland Security oversees more than 66,000
federal law enforcement officers, by far the largest
of any single federal agency and half of all federal
law enforcement officers across the country.
24
Trump’s threats will require a vast expansion of this
massive police force and huge sums of taxpayer
money.
But even if significantly enlarged, the existing
removal system will not even begin to approach
American Civil Liberties Union TRUMP ON IMMIGRATION 5
the scale that Trump and his advisors will require.
Instead, making America into a deportation nation
will require extraordinary, unprecedented, and often
illegal steps.
For example, mass deportations will require far more
agents than Immigration and Customs Enforcement
(ICE) has or could rapidly hire. So, Trump and his
associates plan to build a new deportation force
out of the military, federal agents, and state and
local police.
25
Trump and his advisor, Stephen Miller,
have described plans to federalize state National
Guard personnel and deploy them for immigration
enforcement — arresting people in their homes and
workplaces in communities across the nation and
deploying National Guard troops, in some cases
against the will of local officials and communities:
“[i]f you’re going to go in an unfriendly state like
Maryland, well, there would just be Virginia doing
the arrest in Maryland.
26
Trump has also indicated
that state and local police would also be deputized
to make arrests and to identify targets — and
granted “immunity” for any civil rights violations
they commit.
27
These officers would not only
arrest specific, identified targets, but would “carry
out workplace raids and other sweeps in public
places aimed at arresting scores of unauthorized
immigrants at once.”
28
It is tempting to regard these threats as overblown
and calculated merely for political campaign
purposes. But in recent months, Trump has
repeatedly sought to rationalize his plans for mass
deportation, blending military and national security
rhetoric with xenophobia. When asked about the
legality of using the military against civilians, Trump
retorted that, in his view, “these aren’t civilians.”
29
25 Read the Full Transcripts of Donald Trump’s Interviews with Time, Time (Apr. 30, 2024, 6:37 PM), https://time.com/6972022/
donald-trump-transcript-2024-election/.
26 Savage, Haberman & Swan, supra note 1; Read the Full Transcripts of Donald Trump’s Interviews with Time, supra note 25;
Laura Barrón-López, Shrai Popat & Ali Schmitz, The Potential Impact of Trump’s Extreme Deportation and Immigration Agenda,
PBS Newshour (Feb. 12, 2024, 6:45 PM), https://www.pbs.org/newshour/show/the-potential-impact-of-trumps-extreme-
deportation-and-immigration-agenda.
27 Aaron Rupar (@atrupar), X (Mar. 4, 2024, 4:22 PM), https://x.com/atrupar/status/1764763255564628428.
28 Charlie Savage, Maie Haberman and Jonathan Swan, “Sweeping Raids, Giant Camps and Mass Deportations: Inside Trump’s
2025 Immigration Plans,” 11/11/23. https://www.nytimes.com/2023/11/11/us/politics/trump-2025-immigration-agenda.html.
29 Read the Full Transcripts of Donald Trump’s Interviews with Time, supra note 25.
30 Jonathan Blitzer, In Calling for Politicians’ Arrest, an ICE Official Embraces His New Extremist Image, The New Yorker (Jan.
4, 2018), https://www.newyorker.com/news/news-desk/in-calling-for-politicians-arrest-an-ice-official-embraces-his-new-
extremist-image.
31 50 U.S.C. § 21-24.
32 Expansion of Expedited Removal: What is it, Who Does it Affect, and What are Our Rights?, Make the Rd. N.Y. (Oct. 2020),
https://maketheroadny.org/wp-content/uploads/2020/10/Expedited-Removal-One-Pager-Sep-2020.pdf.
Trump’s deportation dystopia, if realized despite
all of the legal, practical, and moral barriers, would
fundamentally reshape American life. People
across the country would experience armed military
personnel, federal agents of all stripes, state and
local police, and potentially even police from
other states conducting raids and sweeps in their
neighborhoods and at their workplaces. People of
all immigration statuses, including U.S. citizens and
lawful permanent residents, could be investigated,
questioned, and even arrested by these agents if
they are at a location that the deportation force
decides to “hit.”
30
And that is only the first stage of the process —
arrest. Actually processing and deciding all of the
resulting cases is an administrative and judicial
process that cannot practically be farmed out to
other agencies. Carrying it out on Trump’s scale
will require bloating the removal system beyond all
reason.
The Trump team is therefore looking for any excuse,
no matter how improbable, to avoid the legally
required procedures for determining whether
an individual can be removed. For example,
Trump’s advisors have suested that they might
implement an extremist theory, invoking the Alien
Enemies Act — an obscure law that has rarely been
used since it was enacted in 1789 — to override
these procedures.
31
Trump will also likely seek to
massively expand the use of a fast-track deportation
procedure called “expedited removal,” even though
applying that procedure in the interior would violate
constitutional guarantees.
32
And he could encourage
or pressure states to create their own independent
arrest and deportation systems separate from the
American Civil Liberties Union TRUMP ON IMMIGRATION 6
federal one, as Texas has attempted with SB 4.
In anticipation of the massive scale of arrest and
detention these plans will require, Trump’s advisors
are already trying to get Americans used to the
idea that the landscape will be dotted with “vast”
immigrant detention camps.
33
Trump could again
attempt to divert funds from other purposes in order
to build these camps, just as he did when building
his wall.
34
Legal Analysis & Litigation Response
Trump’s plan would require his administration to
trample on numerous fundamental protections
set out in the Constitution and laws passed by
Congress. It would therefore be vulnerable to legal
challenge from multiple angles.
The Fourth Amendment prohibits unreasonable
searches and seizures, including arrests and
detentions without individualized suspicion.
35
And the Fifth and Fourteenth Amendments
guarantee the equal protection of the laws,
including freedom from racial discrimination by law
enforcement.
36
There is no exception for immigration
enforcement.
37
Whether officers belong to ICE,
Customs and Border Protection (CBP), military,
police, or other agencies, they are required to abide
by these basic rules.
33 Charlie Savage, Maie Haberman and Jonathan Swan, “Sweeping Raids, Giant Camps and Mass Deportations: Inside Trump’s
2025 Immigration Plans,” 11/11/23. https://www.nytimes.com/2023/11/11/us/politics/trump-2025-immigration-agenda.html.
Read the Full Transcripts of Donald Trump’s Interviews with Time, supra note 25.
34 See, e.g., Sierra Club v. Trump, 963 F.3d 874 (9th Cir. 2020), vacated and remanded, 142 S. Ct. 46 (2021).
35 U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”).
36 U.S. Const. amend. V (“No person… shall be compelled in any criminal case to be a witness against himself, nor be deprived
of life, liberty, or property, without due process of law…”); U.S. Const. amend. XIV, § 1. (“All persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.”). In Bolling v. Sharpe, 347 U.S. 497, 500 (1954), a companion case to Brown v.
Board of Education, the Supreme Court thought it “unthinkable” that the Equal Protection Clause enshrined in the Fourteenth
Amendment would not apply to the federal government as well as the states and declared it “reverse incorporated” through
the Due Process Clause of the Fifth Amendment.
37 See United States v. Brignoni-Ponce, 422 U.S. 873 (1975) (Roving Border Patrol agents’ vehicle stop based on occupants’
”apparent Mexican ancestry” violated Fourth Amendment); see also United States v. Montero-Camargo, 208 F.3d 1122, 1135 (9th
Cir. 2000) (holding that “Under the Fourth Amendment …Hispanic appearance is, in general, of such little probative value that
it may not be considered as a relevant factor where particularized or individualized suspicion is required.”).
38 See Diaz-Bernal v. Myers, 758 F. Supp. 2d 106 (D. Conn. 2010); see also Marquez v. Pennsylvania, 1:19CV00599 (M.D.P.A. 2022).
39 Indeed, people who once lacked or lost a status can regain their status, move into a new status, or become U.S. citizens. See
e.g., Plyler v. Doe, 457 U.S. 202, 240 (1982) (Powell, J., concurring) (noting fluidity of immigration status).
40 Ortega-Melendres v. Arpaio, 836 F. Supp. 2d 959, 986 (D. Ariz. 2011), aff’d, 695 F.3d 990 (9th Cir. 2012) (citing to the record in
which Sheriff Arpaio was quoted as saying: “Call it ‘racial profiling’ but if there are 12 million illegals that fit a ‘profile’ then it is
what it is,” “I’d say they should be looking for Mexicans.”).
Yet, experience from previous, more localized efforts
at draconian, “zero-tolerance” interior immigration
enforcement shows that these programs result in
racial profiling, suspicionless interrogations and
arrests, unjustified and pretextual traffic stops, and
warrantless searches of workplaces and homes —
all of which violate the Constitution.
38
These kinds
of violations are rampant in dragnet-style operations
because there is no inherent mark that separates
citizens and people with authorization to remain in
the United States from undocumented people: not
language, not place of birth, not even the manner
of their entry into the United States.
39
Accordingly,
officers frequently resort to stereotypes or intuition
in lieu of the factual basis that the law requires.
Perhaps the best-known recent example is Sheriff
Joe Arpaio’s reign of terror in Maricopa County,
Arizona. In the 2000s, Sheriff Arpaio launched
an “operation … to go after illegals” and began
to conduct “saturation patrols” to stop people,
investigate their immigration status, and arrest them
if officers suspected them of being undocumented.
40
As litigation by the ACLU and its partners
established, Arpaio’s immigration-enforcement
sweeps racially profiled Latine residents of
Maricopa County, in violation of the Fourth and
American Civil Liberties Union TRUMP ON IMMIGRATION 7
Fourteenth Amendments.
41
The Trump immigration
plan promises to replicate this unconstitutional
conduct on a massive scale.
The Fifth Amendment guarantees due process
of law, and the Constitution’s Suspension Clause
safeguards access to the writ of habeas corpus
— a key protection against unlawful government
action.
42
The Trump deportation machine would
violate these guarantees in at least two fundamental
ways.
First, an across-the-board policy refusing to release
anyone swept up by the machine pending their
removal would violate Fifth Amendment protections
against arbitrary or punitive civil detention. The
ACLU has brought many cases asserting the rights
of immigration detainees.
43
And the Supreme Court
has recognized that even noncitizens who have
no “legal right to live at large in this country” have
a liberty interest in “freedom from imprisonment.”
44
While the Supreme Court has on occasion
allowed “narrow detention polic[ies]” affecting
discrete categories of noncitizens to stand,
45
the
broad Trump detain-everyone rule would go much
further and could not be squared with fundamental
constitutional protections.
Second, trying to sidestep the procedural
protections embedded in the removal process would
violate the Fifth Amendment and the Suspension
Clause. The Trump administration took one
step in this direction in 2019, issuing a rule that
attempted to expand fast-track “expedited removal”
procedures —which drastically curtail the ability of
41 Court Places Limits on Sheriff Arpaio to Prevent Future Racial Profiling of Latinos in Arizona, Am. C. L. Union of Ariz. (Oct. 2,
2013, 4:39 PM), https://www.aclu.org/press-releases/court-places-limits-sheriff-arpaio-prevent-future-racial-profiling-latinos-
arizona.
42 Zadvydas v. Davis, 533 U.S. 678, 679 (2001).
43 Am. C. L. Union: Cases, Immigrants‘ Rights, https://www.aclu.org/court-cases?issue=immigrants-rights.
44 Zadvydas v. Davis, 533 U.S. 678, 679 (2001).
45 Demore v. Kim, 538 U.S. 510 (2003).
46 8 U.S.C § 1225(b)(A); Expedited Removal of Aliens: An Introduction. Cong. Rsch. Serv. (Mar. 25, 2022), https://crsreports.
congress.gov/product/pdf/IF/IF11357.
47 Make the Rd. New York v. McAleenan, 405 F. Supp. 3d 1 (D.D.C. 2019), rev’d and remanded 962 F.3d 612 (D.C. Cir. 2020).
48 United States v. Texas, 97 F.4th 268, 287 (5th Cir. 2024) (affirming that Congress has ”legislated so comprehensively” in the
entry and removal of noncitizens that it leaves ”no room for supplementary state legislation”) internal citation omitted; see
also Chy v. Freeman, 92 U.S. 275 (1875) (holding that the power to admit and deport non-citizens belongs to Congress); Arizona
v. United States, 567 U.S. 387, 407-8 (2012).
49 Sierra Club v. Trump — Challenge to Trump’s National Emergency Declaration to Construct a Border Wall, Am. C. L. Union:
Cases, (July 20, 2021), https://www.aclu.org/cases/sierra-club-v-trump-challenge-trumps-national-emergency-declaration-
construct-border-wall.
immigrants to defend against deportation — from
the border into the interior of the country.
46
As a
result of litigation by the ACLU and its partners,
the expanded authority went almost entirely
unused, and the rule was later revoked by the
Biden administration.
47
Renewed efforts to end-
run deportation procedures, whether through the
expedited removal authority or otherwise, will meet
renewed resistance.
There are even more legal barriers the deportation
machine would have to overcome. Efforts to have
states spin up their own deportation systems
would violate 150 years of Supreme Court
precedent establishing that only the federal
government has that power — as courts have
recently re-affirmed in litigation by the ACLU and
partners that has blocked Texas’s SB 4 law.
48
Attempting to deploy the Alien Enemies Act in
service of a mass deportation effort would run
headlong into the limits built into the statute
itself, which gives the President only limited
authority to detain and deport “enemy aliens” during
a “declared war” or an “invasion or predatory
incursion” involving a “foreign nation or government.”
And diverting funds to build detention camps
could violate funding statutes, as did Trump’s 2019
diversion of funds to build a border wall.
49
Finally, federalizing the National Guard and
deploying military personnel for immigration
enforcement would raise grave legal concerns.
Since the founding of our nation, American
institutions have carefully guarded against military
American Civil Liberties Union TRUMP ON IMMIGRATION 8
involvement in domestic affairs.
50
In addition
to the Constitution itself, the Posse Comitatus
Act generally forbids the use of federal military
personnel for civilian law enforcement unless
authorized by Congress.
51
Congress strengthened
the Act in 2022 and 2023 in response to the Trump
administration’s use of active-duty military to
respond to protests against police violence.
Trump’s team has suested that they may try to
circumvent these strong legal protections and norms
by invoking the extraordinary authority in another
law, the Insurrection Act. But that Act has never
been used for a deportation machine like this before,
and allowing this maneuver would essentially
erase the critically important line between military
and civilian affairs, with effects that could reach far
beyond the deportation context.
52
In short, Trump’s threatened actions on immigration
run counter to protections in the Constitution and
statutes enacted by Congress. And we will make him
answer for his lawlessness in the courts.
Congressional Action on Trump’s Deportation
Force and Mass Detention
Trump’s aressive plans are impossible without a
massive funding increase. And despite the recent
congressional acquiescence to expanded detention
and unfair, ineffective enforcement policies, what
we saw from congressional leaders during the first
Trump administration gives us reason to believe
advocacy can produce resistance in Congress
during a second Trump term. Trump’s vicious anti-
immigrant rhetoric, coupled with his threats of
raids on major cities, catalyzed serious political
opposition in Congress — including members of
Congress demanding access to immigrant detention
sites, pressing for action on individual deportation
cases, and calling out Trump’s anti-immigrant
policies on social media and in press conferences.
History suests that congressional Democrats are
more likely to stand against anti-immigrant policies
50 The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law, Cong. Rsch. Serv. (June 1,
2000), https://crsreports.congress.gov/product/pdf/RL/95-964.
51 18 U.S.C. § 1385.
52 10 U.S.C. § 251-55.
53 Behind Closed Doors: Abuse and Retaliation Against Hunger Strikers in U.S. Immigration Detention, Am. C.L. Union &
Physicians for Hum. Rts. (June 22, 2021), https://www.aclu.org/publications/report-behind-closed-doors-abuse-retaliation-
against-hunger-strikers-us-immigration-detention.
54 Madhuri Grewal & Yesenia Chavez, It Is Time for a New Way Forward, Am. C.L. Union: News & Comment. (Jan. 7, 2020), https://
www.aclu.org/news/immigrants-rights/it-is-time-for-a-new-way-forward.
when a Republican is in the White House and that
the more Trump pursues his extremist agenda,
which threatens longstanding U.S. residents and
mixed-status families, the more likely members of
Congress will be to assert their powers to thwart his
ability to create a deportation police state.
Even in a divided Congress, pro-immigrant justice
legislators can use Congress’ appropriations
powers to deny ICE the operational resources
necessary to launch the indiscriminate mass
raids Trump surrogates have threatened. Congress
can aressively limit ICE Enforcement and
Removal Operations’ budget through the annual
congressional appropriations bill and deny
supplemental funding requests that have historically led
to waste and misuse of funds. Congress can prohibit
the use of funds to detain families and either limit
or completely defund the kinds of mass detention
camps the Trump campaign has touted. Congress
can also prevent the Trump administration from
rapidly expanding ICE and CBP detention sites by
requiring congressional notification and review as
a condition of detention funding. Likewise, Congress
can condition appropriations on members’ access
to conduct regular, unannounced detention site
visits, which will enable them to uncover and bring
to light the abuses suffered by people trapped
in detention.
53
Finally, Congress can prevent the
improper diversion of other appropriated funds,
especially defense appropriations, by placing
limitations on the reprogramming or transfer of
federal funds.
The ACLU will work with coalition partners to
leverage the appropriations process to resist the
deportation machine.
In addition, we will seek aressive congressional
oversight of ICE’s tactics and actions on American
streets — including through hearings, investigations,
and subpoenas — to detect abuse.
54
As further discussed below, we expect Trump to
American Civil Liberties Union TRUMP ON IMMIGRATION 9
send a bill to Congress on immigration and the
border early in a second term. In any negotiation
over comprehensive immigration reform, we will
lobby Congress to expand funding and ensure
meaningful access to legal representation for
immigrants, who currently have no right to
government-provided counsel in immigration court
even though they have a constitutional right to
due process and the right to counsel.
55
We have
cause for optimism: The Senate’s major bill on the
border and asylum, a “bipartisan” compromise
with Republican support when it was voted on in
early May, would have codified the right to counsel
for certain applicants for asylum for the first time
and required the government to provide counsel to
unaccompanied children under 13.
56
This is a crucial
due process safeguard: Studies show that detained
immigrants with counsel are far more likely to win
their immigration cases and secure release from
detention.
57
If the Trump administration seeks to expand
expedited removal to the interior, we will work
with our partners to bring impacted families and
community members to Capitol Hill to demand
congressional action and spur a congressional
backlash. Congress enacted expedited removal
through the 1996 Illegal Immigration Reform and
Immigrant Responsibility Act. Short of a full repeal
of expedited removal across the board, we will urge
Congress to use its appropriations powers to prevent
ICE from conducting expedited removal against
long-standing residents.
Congressional Action on CBP
Trump is likely to employ some of his harshest
tactics at the border. Historically, Congress has
done little to constrain Customs and Border
Protection’s expansive policing or to create
meaningful accountability for agents who abuse
their authority, and Trump has suested he will
55 Acacia Center for Justice et. al., Request for Funding for Legal Representation and Due Process Protections for Individuals
Facing Deportation (Apr. 22, 2024), https://drive.google.com/file/d/1kHwXe3UhveCl2m38937voNCq8SaDTwfy/view.
56 Border Act of 2024, S. 4361,118th Cong. (2023-2024).
57 No Fighting Chance: ICE’s Denial of Access to Counsel in U.S. Immigration Detention Centers, Am. C.L. Union (June 9, 2022),
https://www.aclu.org/publications/no-fighting-chance-ices-denial-access-counsel-us-immigration-detention-centers.
58 Off. Mgmt. & Budget, Budget of the U.S. Government Fiscal Year 2024 (2023), https://www.whitehouse.gov/wp-content/
uploads/2023/03/budget_fy2024.pdf.
59 License to Abuse: How ICE’s 287(g) Program Empowers Racist Sheriffs, Am. C.L. Union (Apr. 26, 2022), https://www.aclu.org/
publications/license-abuse-how-ices-287g-program-empowers-racist-sheriffs.
60 Read the Full Transcripts of Donald Trump’s Interviews with Time, supra note 25.
build on this legacy of impunity, expanding CBP’s
operations through the use of the National Guard.
Congress has acceded to ever more bloated budget
requests, to the tune now of $19 billion in FY 24,
making CBP by far the largest law enforcement
agency in the United States.
58
We will lobby Congress to put meaningful
constraints on CBP by limiting where border
patrol forces can operate and restricting which
law enforcement units can participate in these
operations. We will also lobby for restrictions and
reporting on racial profiling and unlawful detentions
of residents within the 100-mile zone, and for
mandatory reporting on the location of any new
soft-side, temporary, or open-air detention facilities
utilized by CBP to round up and hold people along
the U.S. border. We will urge Congress to require
CBP to report on checkpoints and roving patrols,
including the number of U.S. citizens stopped and
families separated at checkpoints or by these
patrols.
Congressional Action on Threats
on Asylum and the Border
The Trump administration will have difficulty
executing its mass deportation plans without the
acquiescence and participation of states and
localities, and the ACLU is already identifying ways
pro-civil liberties jurisdictions can ensure they are
not complicit in tearing apart their communities.
We expect that in a second term, Trump will once
again seek to expand ICE’s capacity through
the 287(g) program, which taps law enforcement
agencies across the country to identify and locate
immigrants.
59
Trump continues to spread lies about
immigrants, touting a “new category of crime…
called migrant crime” and blaming “Democratic-
run cities.”
60
In fact, numerous studies show
that immigrants commit fewer crimes than U.S.-
American Civil Liberties Union TRUMP ON IMMIGRATION 10
born people.
61
Immigrants are less likely to be
incarcerated for criminal offenses,
62
and increases
in immigration rates are related to a decrease in
crime rates.
63
We are also concerned that Trump will solicit
volunteers from law enforcement agencies in anti-
immigrant jurisdictions to join in federal immigration
enforcement operations and even participate
in raids on so-called “sanctuary” cities, stoking
animosity and partisan division along the way.
As part of a comprehensive strategic engagement
with blue state governments, we will urge state
governments to deny the federal government
access to their law enforcement agencies and other
state-held resources for purposes of immigrant
detention and deportation — governors can act
through executive orders, state attorneys general
can issue guidance to law enforcement agencies,
and legislatures can enact new measures or update
existing law.
We know that many law enforcement leaders,
concerned that open collaboration with ICE will
diminish community trust and deter people from
coming forward to report serious crimes, will decide
not to collaborate in anti-immigrant enforcement
measures. Short of prohibiting anti-immigrant
collaboration altogether, states can enact measures
requiring that prior to entering into an agreement to
assist in immigration enforcement, state and local
law enforcement agencies seek advance permission
from the governor or other state officials, and that
they notify the public and provide an opportunity for
public comment.
61 Jasmin Garsd, Immigrants Are Less Likely to Commit Crimes than U.S.-born Americans, Studies Find, Nat‘l Pub. Radio (March
8, 2024, 7:00 PM), https://www.npr.org/2024/03/08/1237103158/immigrants-are-less-likely-to-commit-crimes-than-us-born-
americans-studies-find.
62 Ran Abramitzky, Juan David Torres, Leah Platt Boustan, Elisa Jácome & Santiago Pérez, Law-Abiding Immigrants: The
Incarceration Gap between Immigrants and the US-Born, 1870–2020 (Stan. King Ctr. on Glob. Dev. Working Paper No. wp2055,
2024), https://kingcenter.stanford.edu/sites/g/files/sbiybj16611/files/media/file/wp2055_0.pdf; Michael T. Light, Jingying He
&Jason P. Robey, Comparing Crime Rates between Undocumented Immigrants, Legal Immigrants, and Native-born US Citizens
in Texas, 117 Proceedings of the Nat’l Acad. Sciences 32340 (2020).
63 Sungil Han & Alex R. Piquero, Is it Dangerous to Live in Neighborhoods with More Immigrants? Assessing the Effects of
Immigrant Concentration on Crime Patterns, 68 Crime & Delinq. 52 (2022); John M. MacDonald, John R. Hipp & Charlotte Gill,
The Effects of Immigrant Concentration on Changes in Neighborhood Crime Rates, 29 J. Quantitative Criminology 191 (2013).
64 Jolie McCullough, Texas Troopers Are Causing Car Chase Fatalities and Racially Profiling Drivers under Abbott’s Border
Crackdown, Complaint Claims, Tex. Tribune (July 28, 2022), https://www.texastribune.org/2022/07/28/texas-dps-pursuits-
profiling/.
On the other hand, Trump’s anti-immigrant rhetoric
is likely to embolden racist and abusive local law
enforcement officers, who will effectively act as
badge-wearing vigilantes intent on assisting in
its mass deportation drive. Many will engage in
pretextual policing — using traffic stops and arrests
for minor offenses to book people into local custody
and funnel them into deportation, decreasing
community-law enforcement trust and resulting
in civil rights violations.
64
State attorneys general
and other elected officials can respond by robustly
enforcing state laws against racial profiling, and
launching their own civil rights investigations into
state and local law agencies that show a pattern of
traffic stops and arrests disproportionately targeting
Black and Brown residents.
We will also urge governors, other state officials,
and legislatures to act decisively to protect people
from Trump’s mass deportation drive:
• Governors can issue pardons to immigrants
for state criminal convictions that make them
deportable, in consideration of their record of
rehabilitation, contributions, and roots in the
state.
• State legislatures can pass legislation that
allows people to obtain a driver’s license without
regard to their citizenship — ensuring they are
not arrested and convicted of the offense of
driving without a valid license, which would put
them at higher risk for deportation.
• States can increase visa certifications for
victims of certain crimes and human trafficking
and, using the new deferred action process,
American Civil Liberties Union TRUMP ON IMMIGRATION 11
for exploited workers.
65
State legislatures
can also pass so-called 364-day bills, which
reduce people’s vulnerability to deportation
by redefining the maximum penalty for a
misdemeanor under state law — thereby avoiding
a trier for mandatory deportation under a
draconian provision of federal law.
66
• State attorneys general can issue guidance to
local prosecutors on considering the immigration
consequences of the charges they are bringing
to avoid inadvertently triering deportation.
• States can also fund legal representation for
immigrants facing deportation, and coordinate
with community organizations and legal aid
groups to ensure support for communities facing
mass deportation raids.
We will also urge states and municipalities to refuse
to take part in new mass detentions of immigrants.
We will work in legislatures to pass measures
prohibiting government contracts with ICE for
detention. We will also support local movements
against new detention sites and the leasing of
county jail space to ICE.
Unfortunately, we know that governors of populous
states like Texas, Florida, and Georgia — home to
at least 2.9 million people who are undocumented
— are eager to participate in arrests, deportations,
and detention. And we expect the Trump
administration will once again seek to punish so-
called “sanctuary” cities for partisan reasons and
to stoke fear in immigrant communities. We also
expect a Trump administration to go after legal
services and humanitarian services organizations
that provide assistance to immigrants, further
chilling advocacy and adding practical and financial
barriers for nonprofit groups that normally provide
representation and basic services to noncitizens.
67
We will work with city officials to coordinate across
state lines and provide support to residents and
65 U and T Visa Law Enforcement Resource Guide for Federal, State, Local, Tribal and Territorial Law Enforcement, Prosecutors,
Judges, and Other Government Agencies, U.S. Dep’t Homeland Security (2011), https://www.dhs.gov/sites/default/files/
publications/PM_15-4344%20U%20and%20T%20Visa%20Law%20Enforcement%20Resource%20Guide%2011.pdf.
66 Jason Stevenson & Marina Lowe, Utah Passed a Law to Protect Noncitizens From Automatic Deportation, Am. C.L. Union:
News & Comment. (Apr. 9, 2019), https://www.aclu.org/news/immigrants-rights/utah-passed-law-protect-noncitizens-
automatic.
67 Attor ney Gen er al Ken Pax ton Seeks Injunc tion Halt ing Bor der NGO’s Sys temic Crim i nal Con duct in Texas, Att’y Gen. Tex.:
Press Releases (May 8, 2024), https://www.texasattorneygeneral.gov/news/releases/attorney-general-ken-paxton-seeks-
injunction-halting-border-ngos-systemic-criminal-conduct-texas.
68 Read the Full Transcripts of Donald Trump’s Interviews with Time, supra note 25.
mixed-status families before and after deportation
raids occur. It will be vital for local governments to
help ensure that families can find their loved ones
when arrested; community and faith groups can
come together to deliver assistance in the form
of childcare and food to families torn apart; and
lawyers are on the ground and properly resourced
to support impacted people. We will urge cities to
band together to fund and coordinate deportation
defense and assistance for people — even as they
are torn from their community and shipped across
state lines to ICE detention sites in other states.
Reclaiming the Narrative on American Support
for Fair and Humane Immigration Policies
Finally, we recognize that winning policy fights
requires winning the narrative battle over how
America should think about immigrants and
immigration, and the ACLU has been building
a narrative shift campaign to that end. We will
continue to use detailed new public opinion
research and organizing tactics around major news
events — which a Trump administration will create
with some frequency — to create a strong counter-
narrative to the Trump administration’s xenophobia
and racism.
We will urge members of Congress, other elected
officials, and influencers to play offense and reclaim
the narrative on immigration in our country. They
must debunk and forcefully reject the premises
of Trump’s deportation drive while calling out the
xenophobia and white supremacy underlying his
policy proposals.
68
The way that Trump is proposing
we treat our neighbors and loved ones who are
immigrants is completely out of step with our values
and who we aspire to be as a nation. Congress
should instead plan a series of hearings on the vast
contributions of immigrants, including how they
have helped strengthen our economy and American
communities, and why immigrants deserve a fair
American Civil Liberties Union TRUMP ON IMMIGRATION 12
process to become citizens.
69
Polls show that voters do not support cruel
enforcement-only measures that betray core
American values and put vulnerable people in
danger. Proposals to ban asylum and separate
families at the border are widely rejected by voters.
A March 2024 Immigration Hub / GSG poll shows
that 66 percent of voters in battleground states
reject banning asylum, and 79 percent oppose
reinstating family separation.
70
Recent research
conducted by the ACLU also showed that when
candidates, regardless of party affiliation, adopt
a balanced, solutions-focused approach to
immigration that includes both managing the border
and providing a road to citizenship for long-term
residents, they outperform their opponents’ fear-
based messages.
71
Instead of negotiating with the Trump administration
on a so-called “border security” bill, we will push
members of Congress to embrace the better policy
and politics of putting forward their own vision for
immigration reform. Sixty-eight percent of voters
want a balanced approach to immigration that
includes both border management — adequately
staffing ports of entry and increasing processing
capacity of people seeking protection — and
pathways to citizenship for Dreamers and other
longtime residents.
72
69 A 2023 paper from the Federal Reserve Bank of San Francisco found that “reopening of borders in 2022 and easing of
immigration policies brought a sizable immigration rebound, which in turn helped alleviate the shortage of workers relative
to job vacancies.” The Role of Immigration in U.S. Labor Market Tightness, Fed. Rsrv. Bank S.F. (Feb. 27, 2023), https://www.
frbsf.org/research-and-insights/publications/economic-letter/2023/02/role-of-immigration-in-us-labor-market-tightness/.
Meanwhile, the Congressional Budget Office also found that higher net immigration will vastly increase the labor force in 2033,
and as a result, it is estimated that from 2024-2034, GDP will be greater by about $7 trillion and revenues will be greater by
about $1 trillion than they would have been otherwise. Director’s Statement on the Budget and Economic Outlook for 2024 to
2034, Cong. Budget Off. (Feb. 7, 2024), https://www.cbo.gov/publication/59933.
70 New Polling on Immigration Solutions, Glob. Strategy Grp. (March 2024), https://static1.squarespace.
com/static/5b60b2381aef1dbe876cd08f/t/65f0977a26955b3ceec8bcb3/1710266234883/
Immigration+Hub+Survey+Memo+F03.12.24.pdf.
71 Am. C. L. Union: Battleground Blueprint: Winning Narratives on Immigration and Safety for 2024 Elections, https://www.aclu.
org/battleground-blueprint-winning-narratives-on-immigration-and-safety-for-2024-elections.
72 Public Opinion Attitudes on Immigration, supra note 20.
73 Ted Hesson, Trump vows to end birthright citizenship for children of immigrants in US illegally, Reuters (May 30, 2023),
https://www.reuters.com/world/us/trump-vows-end-birthright-citizenship-children-immigrants-us-illegally-2023-05-30/;
Savage, Haberman & Swan, supra note 1.
74 Savage, Haberman & Swan, supra note 1.
75 See, e.g., H.R. 4864, 118th Cong. § 4 (2023).
76 Jeffery S. Passel & D’Vera Cohn, Children of Unauthorized Immigrants Represent Rising Share of K-12 students, Pew Rsch. Ctr.
(Nov. 17, 2016), https://www.pewresearch.org/short-reads/2016/11/17/children-of-unauthorized-immigrants-represent-rising-
share-of-k-12-students/.
Attacks on Children &
American Families
Birthright Citizenship
Trump has said that if re-elected, he will issue an
executive order instructing federal agencies to
stop recognizing birthright citizenship, a bedrock
American civil right.
73
This would reportedly involve,
among other things, ordering agencies to stop
issuing Social Security cards and passports to
the U.S.-born children of undocumented parents.
74
Members of Congress have also introduced
legislation parroting Trump’s rhetoric and purporting
to limit citizenship to children born in the United
States to parents who are U.S. citizens and certain
legal immigrants.
75
If successful, the impact would
be massive; almost 4 million school-aged children
live with at least one undocumented parent,
according to a 2016 study.
76
More than 150 years ago, as a fundamental part
of rebuilding the nation after the Civil War and
the end of slavery, the Fourteenth Amendment
guaranteed citizenship to people born in the United
States, without regard to parentage, skin color, or
ethnicity. That guarantee ensures that we will never
again consign certain groups of people, generation
after generation, to a legal underclass. The Supreme
American Civil Liberties Union TRUMP ON IMMIGRATION 13
Court confirmed, more than 100 years ago, that
the citizenship guarantee applies fully to U.S.-born
children whose parents have no right to citizenship.
77
Moreover, history and tradition — including
English common-law rules and early American
jurisprudence — strongly support the standard,
broad understanding of the Fourteenth Amendment
guarantee.
78
Originalists, textualists, and living
constitutionalists should all agree on this result.
Theories that attempt to carve children out of
this guarantee based on the immigration status
of their parents are legally wrong, morally
repugnant, and dangerous attacks on a core civil
right. But, of course, those facts alone will not
stop Trump from moving forward with his pledge.
If he does, he will be challenged in court.
Equal access to education
In 1982, the U.S. Supreme Court held in Plyler v.
Doe that the Constitution guarantees all children,
regardless of immigration status, equal access to a
basic public education. This principle is directly in
the cross hairs of a second Trump administration, as
it seeks to make life in the United States unbearable
for undocumented and mixed-status families in the
hopes they will “self-deport.”
At issue in Plyler was a 1975 Texas law withholding
funds to educate kids who were not “legally
admitted” into the United States and allowing
school districts to deny them enrollment. Some
school districts took up the invitation to kick their
students out of school, while others — like the
district in Tyler, Texas — decided to charge them
tuition (in Tyler’s case, a fee of $1,000 per year). The
fallout was immediate, as students who were poor,
Latine, and English language learners were driven
from the classroom.
In a watershed decision, the Supreme Court struck
down the law as violating the Equal Protection
77 United States v. Wong Kim Ark, 169 U.S. 649, (1898); see also Plyler v. Doe, 457 U.S. 202, 210 (1982).
78 See, e.g., Lynch v. Clarke, 3 N.Y. Leg. Obs. 236 (N.Y. Ch. 1844) (finding “no doubt, but that by the law of the United States, every
person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural
born citizen.”).
79 Anthony D. Romero, School Is For Everyone: Celebrating Plyler v. Doe, Am. C.L. Union: News & Comment. (June 11, 2012),
https://www.aclu.org/news/immigrants-rights/school-everyone-celebrating-plyler-v-doe.
80 Taylor supra note 7 at 190.
81 Dear Colleague Letter: School Enrollment Procedures, U.S. Dep’t of Just., C.R. Div. & U.S. Dep’t of Educ., Off. C.R. (May 8,
2014), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201405.pdf; Fact Sheet: Protecting Access to Education
for Unaccompanied Children, U.S. Dep’t of Just., C.R. Div. & U.S. Dep’t of Educ., Off. C.R. (June 2023), https://www.justice.gov/
d9/pages/attachments/2023/06/12/protecting_access_to_education_for_unaccompanied_children_0.pdf.
Clause of the Fourteenth Amendment. As the court
recognized, education was crucial to preventing a
permanent underclass of undocumented immigrants
in the United States and ensuring immigrants’ future
membership in society. Citing Brown v. Board of
Education, the court recognized that “denying these
children a basic education” would “deny them
the ability to live within the structure of our civic
institutions and foreclose any realistic possibility
that they will contribute in even the smallest way to
the progress of our Nation.”
79
While he was president, Trump reportedly made
multiple attempts to undermine Plyler and equal
access to education. Miller, his aide, reportedly
ordered the Department of Education to cut off
school funding to states that allowed undocumented
students to enroll in public schools. Trump’s former
Education Department chief of staff has described
the idea to undermine Plyler as a “cockroach that
wouldn’t die” and predicts that in a second Trump
term, the decision would be “ignored.”
80
Obviously,
that would be illegal and inappropriate — and
profoundly harmful to U.S. national interests. In fact,
even governors and legislators who have targeted
immigrant families in other ways have not forcefully
pushed to undo Plyler, presumably because they
recognize the tremendous practical harm that would
cause to their own states.
If Trump goes after Plyler, we have the tools to fight
back. In addition to the Fourteenth Amendment,
Titles IV and VI of the Civil Rights Act of 1964 also
prohibit discrimination. Alongside our partners,
we will work to defend Plyler itself in the courts.
We will also work with Congress to demand that
the Department of Justice Civil Rights Division
and Department of Education Office for Civil
Rights continue their work to ensure that the law
is followed in schools across the nation.81 The
Department of Justice must continue to emphasize,
as it does now, that K-12 public schools must be
American Civil Liberties Union TRUMP ON IMMIGRATION 14
open to all students, regardless of their immigration
status or that of their parents, guardians, or
sponsors: “It is a violation of federal law for districts
to prohibit or discourage children from enrolling in
public schools because the children or their parents
or guardians are not U.S. citizens or do not have
immigration documentation.”
82
Moreover, many states have laws prohibiting
discriminatory actions in schools and guaranteeing
equal access to education — and other states
could pass such measures. Officials in these
states will have ample alternate grounds to defend
undocumented students’ access to public schools
even if Plyler comes under attack. We will work with
state attorneys general to advise school districts of
their legal obligations and ensure they are prepared
for the Trump administration’s assaults on students
— especially federal requests for information that
federal agents could use to identify and track
students and their parents. We will advise schools
to prevent the abuse of their data by not collecting
it in the first place, where it is not necessary for
student services or accountability; and we will
work with state legislatures to empower schools to
protect student data.
We will also work with schools to limit invasive
surveillance technologies that subject students to
around-the-clock monitoring, and which could be
weaponized by an anti-immigrant administration.
If schools are targeted, we will work with partners
to ensure school leaders and other education
officials know they can refuse to assist immigration
agents in locating students and can limit their
access to campuses without a specific and valid
judicial warrant.
83
82 Confronting Discrimination Based on National Origin and Immigration Status, U.S. Dep’t of Just., C.R. Div. & U.S. Dep’t of
Educ., Off. C.R. (Aug. 2021), https://www.justice.gov/crt/page/file/1425321/dl; Fact Sheet: Protecting Access to Education for
Unaccompanied Children, supra note 81.
83 Practice Advisory: The Legal Authority for “Sanctuary” School Policies, Nat’l Immigr. L. Ctr. (Aug. 2018), https://www.nilc.org/
wp-content/uploads/2018/08/sanctuary-schools-practice-advisory-2018.pdf.
84 Court Approves Historic Settlement in ACLU’s Family Separation Lawsuit, Am. C.L. Union: Press Releases (Dec. 8, 2023, 5:00
PM), https://www.aclu.org/press-releases/court-approves-historic-settlement-in-aclus-family-separation-lawsuit.
85 Ted Hesson & Nathan Layne, Trump Refuses to Rule Out New Migrant Family Separations, but Allies Are Wary, Reuters (Nov.
27, 2023, 11:55 AM), https://www.reuters.com/world/us/trump-refuses-rule-out-new-migrant-family-separations-allies-are-
wary-2023-11-27/; Brett Samuels; Trump Defends Family Separation Policy in New Interview, The Hill (Nov. 9, 2023, 10:56 PM),
https://thehill.com/homenews/campaign/4303504-trump-defends-family-separation-policy-in-new-interview/.
Preventing the return of family separations
After years of litigation, the ACLU last year settled
its landmark Ms. L v. ICE case, which challenged the
Trump administration’s policy of separating children
from their families at the border.
84
While work
continues to find and reunite separated families,
and to address the trauma suffered by thousands
of families torn apart during the first Trump
administration, Trump has, shockingly, defended
and praised it during the current campaign and has
refused to rule out reinstituting the policy.
85
An attempt to reinstate the policy would not only be
morally repugnant; critically, it would also violate
the legally binding, court-ordered settlement
agreement that has been entered in successful
litigation brought by the ACLU. If Trump endeavors
to reinstitute his failed and flawed family separation
policy, we would immediately bring the issue to
court.
In addition, we believe a return to family separation
will backfire on Trump and galvanize public opinion
against the entire Trump immigration agenda. The
practice of tearing apart families prompted a
bipartisan, and even worldwide, outcry, and we
will lay the foundations for a national campaign to
mobilize public sentiment once again if this immoral
practice is resurrected.
Trump’s Assault on Asylum and
Human Rights at the Border
Trump has made the demonization of people seeking
asylum at the southern border a key element of his
campaign this year. We expect his administration to
renew and expand attempts to destroy our nation’s
system of protection for people seeking safety from
violence and persecution — a system born of the
horrors of World War II and the Holocaust, and
American Civil Liberties Union TRUMP ON IMMIGRATION 15
which is enshrined in both international and U.S.
law.
86
In particular, we anticipate Trump will attack
the right of people to request asylum when they
arrive at the border — both through executive action
and legislation.
Trump is reportedly planning to kick off his second
term with a major bill on “border security and
immigration.”
87
In addition to limiting or effectively
ending access to asylum, it could eliminate other
pathways for humanitarian protection that have
proven vital to our nation’s response to unfolding
wars and crises, including in Ukraine, Cuba, Haiti,
Nicaragua, and Venezuela.
We also expect that in a second Trump term, the
border will become a more dangerous place for
residents and newcomers alike. Trump will recommit
to expansion of the border wall and attempt to
militarize the border. Trump has wanted to treat the
border as a war zone,
88
and reportedly sought to
emulate Israel and South Korea, citing the latter’s
barbed wire and landmines.
89
Trump has outlined plans for massive policing and
patrolling of the entire border region. In the final
year of the Trump administration, the president’s
team reportedly asked to deploy 250,000 troops to
the border.
90
We expect Trump to renew that request
— even though military deployments at the border
86 Jonathan Blazer & Katie Hoeppner, Five Things to Know About the Right to Seek Asylum, Am. C.L. Union: News & Comment.
(Sept. 29, 2022), https://www.aclu.org/news/immigrants-rights/five-things-to-know-about-the-right-to-seek-asylum.
87 Read the Full Transcripts of Donald Trump’s Interviews with Time, supra note 25.
88 Jonathan Swan, Maie Haberman, Charlie Savage & Emiliano Rodríguez Mega, Trump Wanted to Fire Missiles at Mexico. Now
the G.O.P. Wants to Send Troops, N.Y. Times (Oct. 3, 2023), https://www.nytimes.com/2023/10/03/us/politics/trump-mexico-
cartels-republican.html.
89 Taylor, supra note 7 at 173; Savage, Haberman & Swan, supra note 1.
90 Joe Walsh, Trump Staffers Reportedly Wanted to Send 250,000 Troops to U.S. – Mexico Border. Forbes. (Oct. 19, 2021),
https://www.forbes.com/sites/joewalsh/2021/10/19/trump-staffers-reportedly-wanted-to-send-250000-troops-to-us-mexico-
border/?sh=245987ca4983.
91 Joseph Nunn, End Military Operations at the U.S.-Mexico Border, Brennan Ctr. for Just. (May 22, 2023), https://www.
brennancenter.org/our-work/analysis-opinion/end-military-operations-us-mexico-border.
92 Miles Taylor. Blowback: A Warning to Save Democracy From the Next Trump. Miles Taylor. P. 192. (2023). Francesca D’Annuzio
& Avery Schmitz, Border Vigilantes are Blurring the Lines of Law Enforcement, Tex. Observer (May 23, 2024), https://www.
texasobserver.org/border-vigilantes-law-enforcement-texas-arizona/.
93 Supra note 92.
94 Taylor supra note 7 at 192; see generally, Keegan Hamilton, As Border Extremism Goes Mainstream, Vigilante Groups Take a
Starring Role, L.A. Times (Dec. 18, 2023), https://www.latimes.com/world-nation/story/2023-12-18/arizona-border-militias-
extremism-mainstream-immigration; Patrick Strickland, The U.S.-Mexico Border Has Long Been a Magnet for Far-Right
Vigilantes, Time (Feb. 17, 2022), https://time.com/6141322/border-vigilantes-militias-us-mexico-immigrants/; Emily Bregel,
Hate Speech, Convoy Drive Surge in Vigilantism, Harassment on Border, Ariz. Daily Star (Apr. 4, 2024), https://tucson.com/
news/local/border/arizona-border-vigilantes-convoy-confrontations-safety-volunteer-aid-groups/article_876d7174-c083-11ee-
bb8a-4b1ba66ab2b6.html; Miriam Davidson, Republicans’ New Border Target: Migrant Aid Groups, The Progressive (Mar. 26,
2024), https://progressive.org/op-eds/republicans-new-border-target-migrant-aid-groups-davidson-20240326/.
have proven damaging to military servicemembers,
resulting in “rampant drug and alcohol abuse” and
poor living conditions. At least five people died by
suicide and three died in separate alcohol-related
accidents in just 13 months between September
2021 and October 2022.
91
Finally, a second Trump administration will likely
embolden vigilantism. Former DHS Chief of Staff
Miles Taylor reports that “President Trump was
eager to permit roaming bands of armed citizens”
to engage in immigration enforcement.
92
He will
have willing participants – particularly in states like
Texas, where vigilantes have already been operating
– illegally detain and then deliver migrants to CBP.
93
Vigilante groups have already targeted migrant
shelter staff, and this is likely to increase if the
federal government is supporting them.
94
Legal Response
Attempts to shut down the asylum system face a
number of serious legal problems, starting with the
asylum law itself, which provides that “[a]ny alien
who is physically present in the United States or
who arrives in the United States (whether or not at
a designated port of arrival and including an alien
who is brought to the United States after having
been interdicted in international or United States
American Civil Liberties Union TRUMP ON IMMIGRATION 16
waters), irrespective of such alien’s status, may
apply for asylum in accordance with this section.”
95
Our immigration system also provides other
humanitarian protections, such as withholding of
removal;
96
additional safeguards for unaccompanied
children;
97
and the requirement that, even in
expedited removal, individuals are screened for
protection claims.
98
What’s more, the Administrative
Procedure Act sets forth procedural requirements
for agency rulemaking and prohibits agencies from
adopting arbitrary and capricious rules.
99
The ACLU and its partners challenged numerous
Trump anti-asylum policies, pressing these legal
claims and more. Courts held many of the policies
illegal, and some were suspended or never went into
effect. Further attempts to eviscerate the asylum
system will also be vulnerable to legal challenge.
Abusive border patrol tactics also run afoul of the
law, including the Fourth Amendment’s search
and seizure protections and its prohibition on the
excessive use of force. Here too, the ACLU has
repeatedly sought and obtained accountability
for unlawful conduct by Customs and Border
Protection,
100
and we will expand that work, if
necessary, to encompass the acts of border
vigilantes as well.
95 8 U.S.C. § 1158.
96 8 U.S.C. § 1231(b)(3).
97 8 U.S.C. § 1232; see also Flores settlement agreement, available at https://www.aila.org/library/flores-v-reno-settlement-
agreement.
98 8 U.S.C. § 1225(b)(1)(A).
99 5 U.S.C. § 706.
100 See, e.g., Suda v. U.S. Customs and Border Protection, Am. C.L. Union: Cases (Nov. 24, 2020), https://www.aclu.org/cases/
suda-v-us-customs-and-border-protection; R.M.H. v. Lloyd, Am. C.L. Union: Cases (Nov. 17, 2017), https://www.aclu.org/cases/
rmh-v-lloyd; see also United States v. Manzo-Jurado, 457 F.3d 928 (9th Cir. 2006) (finding that U.S. Customs and Border
Protection violated the Fourth Amendment for detaining four Hispanic men after hearing them speak in Spanish to each other).
101 Julia Ainsley & Julie Tsirkin, Border Policies Under Consideration Could Overwhelm System, DHS Officials Warn, NBC News
(Dec. 13, 2023, 1:30 PM), https://www.nbcnews.com/news/border-policies-consideration-overwhelm-system-dhs-officials-
warn-rcna129557.
102 Pedro Rios, For 25 Years, Operation Gatekeeper Has Made Life Worse for Border Communities, Wash. Post (Oct. 1, 2019, 6:00 AM),
https://www.washingtonpost.com/outlook/2019/10/01/years-operation-gatekeeper-has-made-life-worse-border-communities/;
Samantha Sabo & Alison Elizabeth Lee, The Spillover of US Immigration Policy on Citizens and Permanent Residents of Mexican
Descent: How Internalizing “Illegality” Impacts Public Health in the Borderlands, 3 Front Pub. Health 155 (2015), https://www.ncbi.
nlm.nih.gov/pmc/articles/PMC4464055/; Shaw Drake, Biden Must Remove Border Patrol from Border Communities to Restore Civil
Rights and Liberties, Am. C.L. Union: News & Comment. (Dec. 9, 2020), https://www.aclu.org/news/immigrants-rights/biden-must-
remove-border-patrol-from-border-communities-to-restore-civil-rights-and-liberties; Michael Seifert, Living Between a Rock and a
Hard Place: The Militarized U.S.-Mexico Border, Am. C.L. Union of Tex. (Jan. 13, 2020, 8:15 AM), https://www.aclutx.org/en/news/
living-between-rock-and-hard-place-militarized-us-mexico-border; see also on congressional interest and pushback, Jonathan
Topaz, Castro: Perry “Militarizing” Border, Politico (July 21, 2014, 8:23 PM), https://www.politico.com/story/2014/07/rick-perry-texas-
border-national-guard-109165; Congresswoman Escobar Statement on Migrant Incident at Gate 36, Congresswoman Veronica Escobar
Texas’ 16th Cong. Dist.: Press Releases (Mar. 21, 2024), https://escobar.house.gov/news/documentsingle.aspx?DocumentID=1570;
Congressman Castro and Congressional Hispanic Caucus Members Call on the Biden Administration to Investigate Governor Abbott’s
Migrant Family Separation Practices, Joaquin Castro Congressman for the 20th Dist. of Tex. (Aug. 16, 2023), https://castro.house.gov/
media-center/press-releases/congressman-castro-and-congressional-hispanic-caucus-members-call-on-the-biden-administration-
to-investigate-governor-abbotts-migrant-family-separation-practices.
Congressional Action: Threats
on Asylum and the Border
If Trump sends a bill to Congress that effectively
ends asylum, we will fight to make sure it does not
become law — mobilizing our supporters across
the nation and amplifying the credible voices of
experts who have explained why Trump’s solutions
would actually “break the border” and are “counter-
productive.”
101
Although congressional Democrats and others
have been willing to authorize counter-productive
and anti-asylum measures at the border under
the false rubric of “national security” and drug
interdiction, the politics will be different in a second
Trump administration. For one thing, the realities of
partisan politics mean Democrats in Congress are
more likely to vocally oppose policies pursued by a
Republican president than a Democrat. Moreover,
a further militarization of the 100-mile zone will
force border residents — including U.S. citizens and
mixed-status families — to live in a de facto war
zone.
102
We will work with members of Congress to push
for hearings, investigations, and oversight of this
American Civil Liberties Union TRUMP ON IMMIGRATION 17
aressive policing and militarization, and to
expose and limit CBP and the military’s activities.
We will also work to prevent any legislation or
related appropriations that would expand the role
of the military in policing or surveilling border
communities, and/or collaborating with state
programs (like Governor Abbott’s new military base
for migrant detention)
103
that encourage collusion
between state and federal actors to detain asylum
seekers, border residents, and immigrants in the
name of border security.
Although short-term legislative advances will be
nearly impossible with Trump in the White House,
there is both a political imperative and opportunity
to push a different vision in Congress. To continue
toward our long-term goal of achieving meaningful
immigration reform, we will urge immigrant justice-
minded members of Congress to counter the Trump
agenda with a proposal for balanced legislation that
will actually help manage the border — investments
in processing capacity at ports of entry, processing
options in other countries, and immigration courts
and legal representation — and for resources for
receiving communities, particularly in border areas
where the brunt of Trump’s militarization will be
most acutely felt. We will also continue to work
with Congressional allies to document how people
with strong asylum claims are being deported to
their deaths, and how our anti-asylum policies, like
a “cap,” are being reproduced and cited to justify
equally or more harmful measures around the world.
This work may not achieve short-term legislative
success, but revulsion at Trump administration
excesses will create openings where policymakers
are looking for other answers. Advocacy around
a proactive vision even as we fight off extremist
policies is necessary to ensure that we can reclaim
our humanitarian protection system under a future
administration and do not continue to cede ground
on core human rights.
We will also lobby Congress not to appropriate more
funds to an expanded border force (run by DHS,
the Defense Department, or any other entity) or to
allow CBP to further reduce the criteria for hiring
of Border Patrol agents. We will also lobby for more
oversight and accountability for individual agents,
and transparency and congressional hearings
regarding the location and nature of CBP
policing efforts.
103 Edgar Sandoval, Texas Governor Announces New Military Base Camp on Border, N.Y. Times (Mar. 20, 2024), https://www.
nytimes.com/2024/02/16/us/texas-border-camp-national-guard.html.
State & Local Responses
We will work with local officials to resist collusion
with the Trump administration’s anti-immigrant
efforts through federal partnership programs, like
Operation Stonegarden, or state-led initiatives, like
Texas’s SB 4 and Operation Lone Star. We will work
with state and local officials to document and track
abuses by U.S. Customs and Border Protection,
including unlawful arrests, racial profiling, excessive
use of force, and expanding surveillance of
border community residents. We will also need to
encourage pro-immigrant jurisdictions to do their
own documentation and oversight, particularly as
detention camps open; states may not affirmatively
have access to inspect these sites but should
push for it, especially given the likelihood that U.S.
citizens and other longtime residents will be swept
up in these expansive deportation arrests.
CONCLUSION
During the Trump presidency, immigrants and their
loved ones, advocates, state and local officials, and
ordinary Americans from all walks of life roundly
rejected Trump’s demagoguery, as demonstrated
by the massive show of support at U.S. airports in
response to the Muslim ban, and the many court
orders blocking it and other Trump policies. Most
Americans see immigrants — our neighbors, loved
ones, co-workers, and caregivers — as contributors
to American communities and the economy.
Americans want practical border management
solutions that include adequate staffing to screen
and welcome people who are seeking entry, and we
want an immigration system with clear rules and a
fair process for people to immigrate and seek safety.
The ACLU will stand among this American majority
to stop Trump’s hate-based plans and achieve our
vision for a fair, sensible, secure, and welcoming U.S.
immigration system.
