The Trump administration is continuing to take strides in securing the nation’s southern border, but with so much of his policy being implemented through executive actions, many wonder what it could mean after his four years are over.
Jamie Rowen, a professor of legal studies at the University of Massachusetts-Amherst, recently joined WWL News Radio to break down the legal side of Trump’s immigration moves.
Rowen noted that since returning to office, Trump has implemented dozens of executive orders, but he isn’t issuing more than other “recent presidents.”
“Executive orders typically come out when there is what we call exigencies,” or times when the administration “can’t go through the legislative process, and we want the executive to be able to be nimble and quick and fast acting,” Rowen said.
So, what do his orders mean for immigration?
Trump has issued orders meant to reshape birthright citizenship, expedite deportations of illegal immigrants, continue construction on the southern border wall, declare a national emergency at the southern border, and more.
So, while Trump’s use of his executive power isn’t out of the ordinary, Rowen says that there “is a limit” to what he can do.
“We have three branches of government, and the legislative branch, Congress, is supposed to do a lot of the lawmaking in this country. And so when an executive order does something that Congress is supposed to do, it’s generally considered not valid,” Rowen said, mentioning Trump’s other efforts to use his executive power to shut down government agencies or departments.
Rowen says that when the legal standing of such orders are challenged, they don’t typically hold up in court. She also said the same is true for orders that violate the Constitution, like those that take away protected statuses or the right to due process.
The one area where Trump is venturing away from the norm is when it comes to how he’s worked with Congress.
“Typically, presidents have tried to create law with Congress as a partner,” Rowen said. “And if that doesn’t work, then they issue an executive order. That’s, for example, what Barack Obama did when it came to DACA for immigration benefits for youth that were brought here illegally. But Trump isn’t even trying to start with legislation. He’s immediately jumping to executive orders. That is different.”
So what about the actions he’s taking in which he has authority under laws from the 18th century?
Trump is using a law passed in 1789, the Alien Enemies Act, to deport alleged members of a Venezuelan gang to El Salvador, where they are then being imprisoned despite not receiving due process.
Rowen notes that this isn’t the first time the law has been used, though it has been several decades.
“It’s been used three times during war times, most notably during World War I and World War II, to hold people that were citizens of countries that we were at war with,” she said. “The act enables the federal government to detain and deport people without the due process they would typically be granted under the Constitution.
“It’s only been used during war, and what Trump is saying is that the presence of members of a gang, alleged members of a gang, is akin to being at war with a country. And that, therefore, people that the executive branch has deemed members of the gang should be able to be detained and deported without the typical due process that they would be guaranteed.”
The only issue with this is that the country isn’t at war, so many are questioning whether or not he has the legal standing to use the law to carry out his deportations.
As Trump continues to push through his policy by means of executive action or interpretation of older laws, Rowen says we can be certain that more legal challenges will follow.