The president cannot admit more people into the country than Congress has authorized. However, the president retains both delegated and Article II-specific powers over foreign commerce to prevent individuals from entering the country even if Congress allows them to enter the country.
Rather than relying on Congress to change laws or allocate funds, Trump should assert the power to remove and deport individuals. He could use emergency powers to redirect military funding, coordinate state and local resources, and use this strategy from a position of strength to negotiate immigration legislation later in his term.
Declaring a state of emergency at the border has another important benefit. It would allow President Trump to direct funds to removal operations without requiring Congressional approval.
Based on this approach, here are five powers that President Trump should invoke upon his return from his second inauguration on January 20th.
1. Right to exclude
Congress established the modern immigration enforcement framework through the Immigration and Nationality Act of 1952, which was subsequently amended in 1965, 1980, 1990, and 1996. The INA outlines numerous categories of legal immigration and processes for dealing with illegal immigration and asylum claims. However, Section 212(f) gives the president sweeping authority to suspend all categories of immigration at will, independent of these parallel processes.
This provision allows the president to “suspend the admission of all aliens or aliens of any kind as immigrants or nonimmigrants” for as long as deemed necessary, but only if he determines that their entry would harm the national interests of the United States. You can.
This plenary power is supported by long-standing case law and reaffirmed by: trump vs hawaii (2018), cannot be reviewed by a court. Although President Trump used this power primarily to address terrorism issues during his first term, Section 212(f) goes beyond national security to cover a broader range of “national interests.” . Justice Clarence Thomas agrees. trump vs hawaiipointed out that the law “does not establish any judicially enforceable limits to constrain the president.”
As a result, President Trump, or any president, could decide that all forms of immigration, including legal immigration, are detrimental to U.S. interests for reasons such as culture, low wages, health, welfare, and economics.
2. Right to restrict entry
Section 215(a)(1) of the Immigration and Nationality Act gives the President significant authority to regulate the admission of all aliens, both on immigrant and nonimmigrant visas.
This law states: “Unless otherwise ordered by the President, (1) no alien may leave or enter the United States, or attempt to leave or enter the United States, except under reasonable rules, regulations, or orders; Illegal. Subject to limitations and exceptions established by the President.”
This provision would allow the president to establish a process for processing asylum claims at the border without Congress changing immigration law. While it would be ideal to strengthen specific laws, it is not a requirement for a president to address illegal immigration during his term.
Additionally, under these and other powers, the President may reform or suspend processes such as the H-1B visa program as necessary.
3. Constitutional Power to Prevent Entry
Congress has full authority over naturalization, immigration rules, and deportation, and the president exercises powers over foreign affairs and commerce. This means that your ability to enter the United States will depend on an agreement between both branches. If either Congress or the President objects to a person or entity's entry, that person may be denied entry.
For example, even if Congress passes a law that specifies “granting status to all aliens seeking admission,'' the president can still exclude individuals at his discretion. Justice Thomas suggested that the president may have inherent powers to deport, separate from delegated powers, a concept worth testing. In his dissenting opinion, Sessions v. DiMaya (2018), Thomas argued that this authority may exist in nature.
This strength of executive power has been recognized by the Supreme Court. Knauf vs Shaughnessy (1950) remains the dominant precedent. The court held that “the exclusion of aliens is a fundamental act of sovereignty. The right to do so does not flow solely from legislative power, but is inherent in the power of the executive branch to manage the foreign affairs of the state.”
A district judge in California echoed this opinion in 1996 in a case called “Trial.” Encuentro del Canto Popular vs. Christopher. The court ruled that Congress does not act alone in regulating immigration procedures. Instead, it exercises inherent executive powers under Article 2.
Before Congress formally began regulating immigration in 1875, the State Department administered immigration diplomatically. For example, in 1872, Secretary of State Hamilton Fish warned Britain that the United States would not accept immigrants from the “poor” supported by government funds.
Even without Section 212(f), the Refugee Act cannot override the president's authority to stay refugee cases if it is deemed to be in the national interest. 212(f), the presidential power cannot be attacked.
4. Deportation Representation by State and Local Law Enforcement Agencies
In addition to the 287(g) program, which deputizes state and local law enforcement agencies to enforce immigration laws, particularly against criminal aliens in local jails, there is another authority when the president declares a state of emergency. becomes available. federal law Authorizes the attorney general to exercise the same immigration powers for state law enforcement agencies as federal agents if it is determined that a “massive influx of aliens is imminent or actual.”
Because the law does not provide any exceptions to this rule, local law enforcement agencies that agree to participate may arrest, detain, and even deport illegal immigrants. This authority allows the president to mobilize tens of thousands of additional personnel to assist Immigration and Customs Enforcement in carrying out mass deportations.
5. Redirect defense funding to borders and deportations.
Declaring a state of emergency at the border has another important benefit. President Trump can direct funds to removal operations without requiring Congressional approval. Instead of relying on Democrats for more detention space and relocation funds (and risking amnesty requests in exchange), they could reprogram the Pentagon's funding. It is a logical approach to use the military budget to ensure the security of the homeland, rather than funding conflicts abroad, such as in Ukraine.
In 2019, President Trump used the same authority to begin construction of a border wall. He can now apply these to building detention facilities, using warships for deportations (more efficient than commercial aircraft), and supporting other border security operations.
Following the declaration of a national emergency, Section 2808 The Emergencies Act of 1976 authorizes the Secretary of Defense to undertake “unauthorized by law” military construction projects necessary to support the use of the military. Similarly, parallel method In such emergencies, the Secretary may direct the Department of the Army's resources, including funds, personnel, and equipment, to critical civil engineering, military construction, and civil defense projects.
These statutes contain minimal restrictions. The Secretary of Defense is only required to report the nature and cost of the project to the relevant Congressional committees; no further approval is required.
another law Authorizes the Secretary of Defense to support counter-drug and anti-border criminal activities upon request by federal or state law enforcement agencies combating drug trafficking. In fact, the bill specifically authorizes the Department of Defense to build roads, fences, and install lighting to cut off drug smuggling corridors along the U.S. border.
President Trump could use these laws to fund ICE detention space and logistics for mass deportations. By leveraging these existing powers, they could begin deportation operations immediately without relying on Congress, making concessions, or spending partisan budget reconciliation for border funding.
The President has all the powers necessary to protect the sovereignty of the United States. As commander-in-chief, enforcing these laws is his primary responsibility. The problem is not with the law itself, but with its faithful enforcement.
