The barrage has begun. On his first day in office, President Donald Trump signed a slew of executive orders aimed at reshaping immigration to the United States. He took various actions on top of the orders, too—impacting a wide range of aspects of the US immigration system, from indefinitely suspending refugee resettlement to summoning the military to perform border enforcement.
It has been hard to keep track of the already chaotic push to end immigration as we know it. Trump ended the use of the Biden administration’s CBP One application and took away thousands of appointments for migrants and would-be asylum seekers. Flights for refugees already vetted and cleared to come to the United States have also been cancelled, leaving many in limbo and even stranded in transit countries.
Among these, perhaps the most notable, and disturbing, development has been an aggressive, and seeming illegal, crackdown on access to asylum.
This week, the Trump administration has taken steps to effectively seal the southern border by declaring an “invasion” and invoking section 212(f) of the Immigration and Nationality Act (INA) that allows the president to, under certain circumstances, deny entry to foreigners if “detrimental to the interests” of the country. In one executive order titled “Guaranteeing the States Protection Against Invasion,” Trump references that authority to suspend “the physical entry of aliens involved in an invasion into the United States across the southern border until I determine that the invasion has concluded.”
“There is now no such thing as asylum at the US-Mexico border”
The proclamation also bars migrants “posing threats to public health, safety, and national security,” preparing the terrain for a future travel ban. As a result, CBS News reported that Customs and Border Enforcement (CBP) agents have been instructed to summarily deport migrants—including families with children—without allowing them the opportunity to ask for protection in the United States. “It’s like Title 42 but for everybody,” Adam Isacson, director of defense oversight at the Washington Office on Latin America (WOLA), said in reference to the pandemic-era public health order the Trump administration previously relied on to shut down the border for most migrants.
Mother Jones spoke with Isacson about Trump’s executive orders and their impact on the asylum system and beyond.
On day one, Donald Trump signed about 10 executive orders related to immigration. What stood out to you from the bunch?
The first thing that jumped out at me was they are closing the border and refusing to process anybody who’s undocumented. I don’t think it will stand, but it is an enormous deal. Between the existing Biden administration rule from June and this new closure of the border which, of course, includes the cancelation of the CBP one app, there is now no such thing as asylum at the US-Mexico border. Section 208 of the immigration and national Nationality Act (INA) might as well not exist. They have all but repealed it for the time being, pending challenges. People who need protection now just simply cannot get it.
Wrapped in with that is the restart of the “Remain in Mexico” program. And the closure of the humanitarian parole program for Cubans, Haitians, Nicaraguans and Venezuelans, which leaves more people in limbo. There’s also a deployment of 1,500 active duty soldiers and Marines on their way to the border. The United States has a 150-year-old tradition of not using its military for law enforcement duties on US soil, but we’re about to really part with that and give the military, perhaps, like we’ve already seen happen under Texas Gov. Greg Abbott’s command, the ability to confront civilians domestically.
Some of these executive orders invoke an authority under section 212(f) of the Immigration and Nationality Act (INA) to essentially bar any migrant and asylum seeker from entering the country by claiming an “invasion.” Can you explain what that authority is and how the Trump administration is trying to use it?
It’s an incredibly broad authority and it gives the president power to just deny or prohibit the entry of broad classes of foreign citizens. Trump used it for his famous Muslim ban, and Biden has used it for his asylum ban on everybody who crosses improperly between ports of entry. One reason the Biden administration waited so long to implement that asylum ban was because the Ninth Circuit [Court of Appeals] had ruled that the 212(f) ban does not cancel out the right to asylum once you’re on US soil. You can prevent people from entering, but if they’re actually physically here and they say, I fear returning to my country, 212(f) doesn’t let you just kick them out.
The way that the [Trump] executive order is squaring that illegality of kicking out asylum seekers who are on US soil is by claiming there’s an invasion. It seems like an all-purpose, break-the-law free card if they get away with it. This is [also] almost certainly laying the groundwork for a larger travel ban, not giving visas to [certain] countries, not letting people into airports. You could see this administration targeting Muslim-majority countries like it did in the past. You could also see them targeting countries whose governments don’t allow a lot of deportation planes to land like China and India, if they want to play hardball.
How do you see the courts responding to this “invasion” argument?
The use of the Constitution’s article for invasion language to justify what they’re doing is incredibly broad and incredibly vague. It’s a legal theory that came out of a couple of Republican attorneys general and people in the Heritage Foundation orbit only around 2021 or 2022. Now they’re trying to claim that leaderless, stateless people with humanitarian needs are somehow the equivalent of an invading army. That is an incredibly wild legal theory. If courts actually defer to them and say the president gets to decide whether we’re under invasion or not, then the suspension clause of the Constitution lets them suspend habeas corpus and they could just start arresting us if they don’t like us without charge because there’s an “invasion.”
In the nightmare, outlandish, worst case, red team scenario, they can say that these 47,000 migrants coming to the border every month constitute an invasion. I don’t think they’ll try it, but it’s the same way [with] the Insurrection Act in the name of an invasion or just a disturbance of the public order, a president can bring in the military. If there’s future George Floyd-type protests, they can use combat-trained soldiers who have no law enforcement background to use maximum force against those protesters.
Those are two very big loopholes that could affect our basic freedoms anywhere, and in both cases, [you can see them] using the situation at the border as a pretext.
Does this strikes you as different from Trump’s first term?
They’re deliberately flooding the zone to keep us off balance, and they’re going for as much as they can get right off the bat. I imagine [they are] expecting to lose a lot of ground in court and in reality, but they’re trying for everything right now. They’re doing this at a time when border patrol apprehensions are way down. So it’s like they’re coming late to the emergency.
The Trump administration of the first couple of years you had people like Stephen Miller and [former Acting Homeland Security Secretary] Chad Wolf running around, but you also still had General [John] Kelly and Kirstjen Nielsen, who was a career government person. You had some more grown-ups. Near the end of the Trump administration, from George Floyd to January 6, the lunatics really had taken over the asylum and it was getting a lot scarier. This is like that latter phase but on steroids.
