Day One was serious about immigration

A lot happened today.

The first orders and memoranda issued by the White House cover personnel, the January 6th riots and other retribution, TikTok, trade, gender, energy, the death penalty, styles of architecture, Delta smelt, foreign aid, windmills, and the U.S. withdrawal from the World Health Organization and the United Nation’s Paris Agreement on Climate. That is not an exhaustive list. Donald Trump even ordered that the names of the Gulf of Mexico and Denali be changed to the Gulf of America and (back to) Mount McKinley in the Geographic National Information Systems Database, which will undoubtedly annoy legions of geographers and logisticians*.

Anyway. It will be extraordinarily difficult to make organized sense of the coming changes, to put the executive orders and proposed regulations or rescissions in digestible categories where they can be analyzed and interpreted so that we can gain both a broad and a deep understanding how those changes will ultimately affect the individual lives of Americans.

While there’s a lot (A LOT) I’d like to explore with these geographic rechristenings (and that bit about the Delta smelt), there’s only one reasonable place to start—the cannonade of immigration orders.

Democrats have been coming to the realization that Americans broadly view illegal immigration as a major problem but disagree on what policy changes should be made. Border crossings were low under both the Obama and first Trump administrations, and although they rose during COVID at the end of the Trump and beginning of the Biden Administration, they have recently dropped considerably. Nonetheless, it’s clear that Trump heavily leaned on a promise to constrain illegal immigration to lure voters, and thus he feels that he is entering his second administration with a mandate for an illegal immigration crackdown. We are now faced with the immigration agendas of Trump and the conservative movement (i.e., Project 2025), which are largely aligned in their sense of emergency and calls for extreme policies.

The orders and memoranda issued today regarding immigration are the following:

• Declaring a National Emergency at the Southern Border of the United States

• Clarifying the Military’s Rule in Protecting the Territorial Integrity of the United States

• Realigning the United States Refugee Admissions Program

• Protecting the Meaning and Value of American Citizenship

• Securing our Borders

• Protecting the American People Against Invasion

There is some overlap among the orders. Together they define a broad spectrum of actions that would give the executive branch significant physical and legal power to detain and remove undocumented immigrants.

Birthright Citizenship

The boldest of the orders attempts to redefine citizenship, leaning heavily on the clause “subject to the jurisdiction thereof” that is present in both the Fourteenth Amendment and in the Immigration and Nationality Act:

• “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.” (U.S. Const. amend. XIV)

• “a person born in the United States, and subject to the jurisdiction thereof” (defining “nationals and citizens of the United States at birth”; 8 USC § 1401) .

Trump’s order claims “[t]he Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not ‘subject to the jurisdiction thereof.’” This is a highly dubious interpretation. Birthright citizenship in the situation of birth within the United States but to parents who are not citizens was confirmed by the Supreme Court in 1898 in U.S. v. Wong Kim Ark. The case explicitly considered the phrase “subject to the jurisdiction thereof.”

Trump’s order would apply to those born after 30 days from the date the order was issued. Notably, it considers temporary visa status (e.g., work, student) of the mother to be insufficient for granting citizenship to her child provided the father is not a citizen or lawful permanent resident.

The ACLU has already filed suit against this order. Although the interpretation of the statute has been considered settled, the current Supreme Court has shown itself to be quite active in overturning precedent. Unless the Trump Administration backs down from the order, it will almost certainly find its way to the Supreme Court. The most likely response is declining to hear, assuming the lower courts continue to follow such well-established precedent. Nonetheless, in the meantime, there will be children born who are unable to access their proper citizenship paperwork, especially considering the enforcement chaos that is likely to surround the order.

One more note: If this were to somehow take effect, it’s unclear how the U.S. would approach the possibility of rendering individuals stateless. (It’s also not yet clear how the Trump Administration will treat stateless peoples in the U.S. with regard to the other orders issued today.) The U.S. is not a signatory of the American Convention on Human Rights, the Convention Relating to the Status of Stateless Persons, or the Convention on the Reduction of Statelessness, which all pressure signatories into minimizing the phenomenon of statelessness.

Military at the Ready

Trump’s orders make it clear that they intend to use all military resources legally available to prevent border crossings of undocumented migrants. By declaring a National Emergency, he orders “the Armed Forces to take all appropriate action to assist the Department of Homeland Security in obtaining full operational control of the southern border.” In the same order, he activates the Ready Reserve to assist DHS and makes military construction authority available to DHS.

In a second order, Trump specifically orders that the U.S. Northern Command be assigned to seal the U.S. border, including a “level 3 planning requirement” and a “campaign planning requirement”, as well as “continuous assessment of all available options”. What does this mean? There are 1-4 levels of contingency planning. Level 3 is the second highest—a “concept plan”. These classified plans are developed to plan responses to specific scenarios. With this order, Trump is ordering USNORTHCOM to develop a relatively detailed plan to conduct a campaign “to seal the borders and maintain the sovereignty, territorial integrity, and security of the United States by repelling forms of invasion, including unlawful mass migration, narcotics trafficking, human smuggling and trafficking, and other criminal activities,” according to the order.

Thus, we might expect to see U.S. Armed Forces units deployed domestically to crackdown on illegal immigration, smuggling, etc., including whatever “other criminal activities” means.

wait there’s more

Other striking provisions in today’s immigration orders include:

• Suspension of the U.S. Refugee Admissions Program. Admission will only occur on a case-by-case basis; reconsideration of the suspension will occur every 90 days. This includes a provision to allow State and local jurisdictions to “have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions.” Yes, you read that right. It said “resettlement”.

• Implement the DNA Fingerprint Act of 2005 to take DNA and fingerprints from undocumented migrant detainees and “use any available technologies and procedures to determine the validity of any claimed familial relationship between aliens encountered or apprehended by [DHS].”

• Calling on the Attorney General and the Secretary of Homeland Security to “jointly establish Homeland Security Task Forces (HSTFs) in all states nationwide.” The AG and Sec. DHS would “provide supervisory direction.”

• Enacting Federal-State agreements that would “authorize State and local law enforcement officials […] to perform the functions of immigration officers”.

• Denying federal funds to “sanctuary” jurisdictions.

• Sanctioning countries who do not accept their own citizens who are deported from the United States.

• And of course, all of this is ultimately to detain and deport undocumented immigrants.

These orders are already affecting people. Upon Trump’s inauguration, the Customs and Border Patrol CBP One mobile application immediately stopped taking new requests for appointments at the southern border and cancelled existing appointments.

There’s so much content to cover in the new orders that I haven’t provided much analysis on how they relate to Project 2025. I’ll plan to do a summary post later.

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*I just want to take a moment to state that neither of these names were controversial. Keeping the name Denali for their mountain is a bipartisan wish of Alaskans. The Alaskan congressional delegation will likely be super irked by this, but today’s other order re-opening the Alaska National Wildlife Refuge for drilling may assuage them.