Guest post by Publicola
As the President articulated over the weekend, under the 1952 Immigration and Nationality Act he has wide discretion to remove aliens from the interior of the United States.
The relevant part of the statute, quoted by the president, warrants a complete recitation:
“Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
The relevant subsection is 212(f), and it has to do with a president’s near-absolute authority to remove unlawful residents residing inside the nation.
The factors that have conventionally and invariably enabled this power are heightened in every respect by modern circumstances.
Due to the catastrophic mismanagement of the southern border under Joe Biden, the problem has been elevated to a full-blown constitutional crisis – doubtlessly qualifying it as a national emergency.
This is because approximately twenty million illegal aliens, a significant portion of which are repeat offenders and felons from third world countries, crossed the border and penetrated the interior over the last four years.
While the Trump administration has done a remarkable job in sealing the border, a historic feat, that is just part one of the correction.
The second part for reversing the damage is deportations – a process that takes a little more time, given the sheer volume of illegal aliens who entered the homeland from 2021 to 2024.
It is also worth repeating that this large volume of newcomers joined an already considerable share of illegal aliens who crossed the border under Obama, Bush, Clinton, and yes, even Reagan.
Thus, the second Trump administration has a mighty task ahead: not only must it do damage control on the disaster that was Joe Biden’s border, but moreover, it likewise must identify and remove the potentially forty or fifty million illegals, including so-called “gotaways,” who have been residing here unlawfully for decades.
Fortunately, under the laws of the United States, the president has expansive authority to remove foreigners – including lawful, albeit unnaturalized, newcomers from third world places like Afghanistan.
The Immigration and Nationality Act, or INA, authorizes the President to remove “deportable” classes of noncitizens under 8 U.S.C. § 1227.
Most Americans are already familiar with the president’s ability to remove noncitizen criminal felons, such as those who were convicted of aggravated felonies, like assault or battery, have committed crimes of moral turpitude, such as rape or murder, and those engaged in drug and human trafficking crimes.
Beyond these cases, however, the President, through his secretary of Homeland Security and Attorney General, also has authority to deport other classes of noncitizens.
Other categories include noncitizens who committed fraud, such as marriage fraud, document fraud, voting fraud, failure to provide notice of a change in address, or falsely claiming U.S. citizenship when they were not, as well as noncitizens who become “public charges.”
The latter, somewhat catch-all category encapsulates persons who become dependent on government assistance within five years of entry for reasons existing before entry.
As such, the INA clearly gives the President wide discretion to deport not only illegal aliens, but any noncitizen who is in violation of U.S. law.
He may also control who enters into the United States and may invoke national security powers to ensure violent extremists or potential terrorists are kept out as well.
What gives the President this authority is none other than the Constitution itself – specifically, Article II, Section 3, the famous “take Care clause,” which requires that he “shall take Care that the Laws be faithfully executed.”
This subsection implicates one of the President’s core duties as chief executive: he is the preponderant law-enforcer in the federal government.
It is therefore incumbent upon him to ensure that the laws of the Republic are executed in a manner that does justice to their original intent.
This is an absolute, incontestable power that the President of the United States retains, one that goes to the “energy” or enforcement power of the branch of government over which he is entrusted.
Related to the question of presidential deportation authority is due process, and the rights of the noncitizen in a deportation proceeding.
On the outset, it is important to emphasize that due process rights in general are primarily in place to protect the defendant citizen in a criminal proceeding.
The Supreme Court has been very clear over centuries of case law that deportation proceedings are patently not criminal in nature, they are purely civil or administrative.
Therefore, any “due process” protections which may attach to the defendant party are of a significantly reduced standard than what are ordinarily found in criminal trials.
In other words, in a deportation proceeding, violators have far fewer procedural protections, such as no right to Miranda warnings, no exclusionary rule for unlawfully obtained evidence, a lower burden of proof (clear and convincing evidence rather than beyond a reasonable doubt), and streamlined hearings without full evidentiary rules.
These reduced protections have been repeatedly affirmed (and re-affirmed) by seminal Supreme Court judgments.
In INS v. Lopez-Mendoza (1984), for instance, the Supreme Court held that “consistent with the civil nature of the proceeding, various protections that apply in the context of a criminal trial do not apply in a deportation hearing.”
In Fong Yue Ting v. United States (1893), the Court framed immigration control as a political matter with limited judicial interference — effectively justifying a lower due process threshold:
“The right of a nation to expel or deport foreigners who have not been naturalized, or taken any steps towards becoming citizens of the country, rests upon the same grounds, and is as absolute and unqualified, as the right to prohibit and prevent their entrance into the country.”
In Landon v. Plasencia (1982), the High Court noted “the probable value of additional or different procedural safeguards,” thus affirming a flexible, lower due process standard tailored to immigration’s civil nature.
This idea was further fleshed out in Carlson v. Landon (1952), where Justice Black reiterated that “the Alien Enemy Act is a wholly different procedure” from a criminal proceeding and that “deportation is not a criminal proceeding.”
What is more, in United States ex rel. Knauff v. Shaughnessy, (1950), the Court held that deportation proceedings authorized by Congress are “due process as far as an alien denied entry is concerned.”
Thus, only the bare-minimum protections are required for a deportation proceeding of a noncitizen, which satisfies the requirements of due process.
And, given the fact that almost all these cases dealt with noncitizens who were nevertheless lawfully residing in the United States, one can expect that the illegal alien – as distinguished from the noncitizen deportee – would have even fewer due process safeguards.
At the same time, the Court has also been clear about noncitizens’ interests being weighed against the interests of society overall.
In particular, the President’s constitutional prerogative to secure the liberty and safety of the American people, which are powerful public interests working in the opposite direction of the party subject to deportation proceedings.
These powerful countervailing public interests demand expediency from the proceeding, since that is the only absolute way to guarantee the public’s protection.
The President’s expansive authority under the INA, bolstered by constitutional mandates and longstanding Supreme Court precedents, equips the executive branch with the necessary tools to address the unprecedented immigration challenges facing the nation.
From suspending entries deemed detrimental to U.S. interests to deporting broad classes of noncitizens through streamlined civil proceedings with appropriately limited due process, this framework ensures faithful execution of the laws while prioritizing public safety and national security.
As the Trump administration undertakes the monumental task of reversing years of border mismanagement, these powers stand as a vital safeguard, reaffirming America’s sovereignty and commitment to protecting its citizens from the disasters of unchecked illegal immigration.
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