Trump wants the military to help with mass deportation plan. Will Congress pay? | Opinion
Donald Trump, during his run to regain the presidency, repeatedly vowed to end "forever wars" abroad. Now we know why Trump wants to bring America's military home. He's eager to deploy them right here.
Trump this week used his social media platform Truth Social to confirm a political ally's claim that he will "declare a national emergency and will use military assets" to run "a mass deportation program."
As with most Trump policy proposals, this was a mile wide and an inch deep. Here's how detailed Trump got in his post while verifying that claim – "True!!!"
Trump spokesperson Karoline Leavitt expanded a little on that, telling me that Trump "will marshal every federal and state power necessary to institute the largest deportation operation" in this country's history.
How does that happen? And what might stop it? That law is complicated. But the most likely roadblock isn't. It's the implacable political dysfunction in the U.S. Congress.
The eventual roadblock to Trump sending troops into American cities and towns to round up millions of people, including children and hardworking families, might just be an inability in Congress to accomplish much of anything.
Trump's mass deportation plan is a twist on presidential norms
Every presidential administration deports people who enter this country illegally. Trump has made immigration the center of his political universe. But his predecessor, Barack Obama, deported more people. And the guy who beat him in 2020, Joe Biden, is on pace to match Trump's deportation numbers in his one term.
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Trump, on the night before the general election, told a rally crowd in Reading, Pennsylvania, that President Dwight Eisenhower holds the record the for mass deportation of people from this country. Trump vowed to beat it. But he didn't cite the racist name of that 1954 program.
"It's not something I want to do," Trump said at that rally of mass deportations, despite his public desperation for nearly a decade to do exactly that.
He will now be calling plays from an even older playbook with a very new approach to America and its military.
A 146-year-old federal law, the Posse Comitatus Act, prohibits using active-duty U.S. military forces for civilian law enforcement on American soil.
But an even older federal law, the Insurrection Act of 1792 – along with a nearly 200-year-old U.S. Supreme Court ruling – opens a legal loophole big enough for Trump to drive a battalion of tanks into American cities.
Joseph Nunn studies all that as counsel for the Liberty and National Security Program at the Brennan Center for Justice.
"The dangerous authority here is really the Insurrection Act, because it gives the president nearly limitless discretion to use the military as a domestic police force, and it does not have any real procedural safeguards," Nunn told me. "And while there is a path to judicial review, that path is narrower than it should be."
If Trump invokes the Insurrection Act, some Republican governors in red states will likely be eager to offer their national guards to assist his mass deportation program. Democratic governors in blue states may object and ask judges to intervene if Trump tries to call up their national guards. But that's a long shot.
"The insurrection act is extraordinarily broad," Nunn said. "There are no meaningful criteria within the law for determining when it's appropriate to use it."
There is no way to control Trump if he uses the Insurrection Act
That's because the Insurrection Act doesn't just cover insurrections or rebellions.
It was last invoked during the 1992 riots in Los Angeles, at the request of then Gov. Pete Wilson, after a jury acquitted four police officers in the videotaped beating of Rodney King. It was last invoked by a president against a state's wishes in 1965, when President Lyndon Johnson sent troops to Alabama to protect civil rights activists.
Nunn said Trump may, if he invokes the Insurrection Act, cite resistance from state and local authorities to federal efforts to identify and deport undocumented immigrants in so-called sanctuary cities.
Look to Los Angeles, America's second largest city, which on Tuesday approved a policy that prohibits the use of municipal resources in federal immigration actions. Expect more of this.
Trump railed about the sanctuary city movementwhile he was president. He could now call that an obstruction to the execution of federal law while sending in active-duty troops or the National Guard to assist the U.S. Department of Homeland Security with a mass deportation program.
That would likely cause a flurry of lawsuits from officials who oppose Trump's plan. Those efforts could be thwarted by a legal precedent set when a member of New York's militia decided to sit out The War of 1812. Jacob Mott was court-martialed for that.
The resulting 1827 U.S. Supreme Court ruling on his appeal says the decision to deploy the troops is "exclusively vested in the President, and his decision is conclusive upon all other persons."
Nunn called it the correct outcome of that case, but he also said the opinion's position that "no one can question the president's decision" to invoke the Insurrection Act was "too broad of a rule."
Congress may ultimately decide how far this goes
Trump can start a mass deportation program. But can he pay for it?
Presidents are commanders in chief of the military, but Congress controls the funding.
The American Immigration Counsel last month estimated that a mass deportation program to remove 13.3 million undocumented migrants from this country would cost $315 billion.
Nunn said that figure "sounds very plausible to me."
Trump can divert money here and there to get things started, as he did when he redirected billions from the Defense Department's budget to build parts of his southern border wall during his first term.
"If Congress declines to make an appropriation for this mass deportation program, the federal government has limited funds that it can move around to do something it wants to do but the Congress hasn't funded," Nunn said.
House Speaker Mike Johnson, the Louisiana Republican who threatened a government shutdownfor purely political reasons in September before backing down, will still be governing next year with a slim majority. And the filibuster, which requires 60 of the Senate's 100 members to agree to end debate so a particular piece of legislation can come up for a vote, is still alive and in use in that chamber.
So the best-case scenario for anyone who opposes Trump's mass deportation plan, for now, is that he won't have the money to pay for it and Congress won't be able to agree on what to do about that.
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