Simone Lawson
Former US President Donald Trump has been accused of violating the US Constitution through his immigration policies. Trump's administration has attempted to unilaterally change the Constitution by depriving babies of their constitutionally guaranteed citizenship, issuing emergency declarations to deploy the military for immigration enforcement, and denying due process rights to immigrants. Trump has questioned the need for due process under the Constitution, arguing that it hinders his plans for rapid mass deportations. His administration has also restricted access to asylum and attempted to suspend habeas corpus, the right to challenge detention. These actions have been criticized as unconstitutional and inhumane, with potential consequences for the rights and safety of immigrants and asylum seekers.
| Characteristics | Values |
|---|---|
| Scope of Executive Order | Closing the border entirely to people seeking asylum |
| Justification | The act of seeking safety constitutes an "invasion" |
| Federal Law invoked | Same as that used to justify Muslim and African bans |
| Authority | Department of State |
| Action | "Repel, repatriate, or remove" any person arriving at the southern border |
| Reasoning | The government cannot properly vet them for public health or safety risks |
| Exceptions | None for people being trafficked, unaccompanied children, or those facing persecution or torture in their home countries |
| Birthright citizenship | Attempted to end it by executive order |
| National emergency declarations | Used to justify funding the border wall and restricting cross-border traffic flows |
| Due process rights | Doubted the need for due process under the Constitution |
| Suspension of habeas corpus | Looking to suspend the right of a person to challenge their detention in court |
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What You'll Learn
Trump's attempt to end birthright citizenship
On his first day in office, President Donald Trump issued an executive order aimed at ending birthright citizenship for babies of undocumented immigrants and for people with temporary status in the US. The executive order, titled "Protecting the Meaning and Value of American Citizenship", sought to abolish the United States' longstanding policy of unrestricted birthplace-based citizenship. This policy, also known as jus soli, asserts that anyone born within US territory is automatically a citizen at birth, regardless of their parents' immigration status.
Trump's executive order stated that the Fourteenth Amendment has "always excluded from birthright citizenship persons who were born in the United States but not subject to the jurisdiction thereof". However, the text of the Fourteenth Amendment to the Constitution states that "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." The Fourteenth Amendment was enacted following the Civil War to guarantee certain rights for African Americans and to rectify the Supreme Court's Dred Scott v. Stanford decision, which deemed African Americans ineligible for citizenship based on their race.
Trump's executive order on birthright citizenship is part of a broader set of immigration-related actions that have been deemed controversial and illegal. Trump has attempted to unilaterally change the Constitution, invoked emergency declarations to facilitate mass deportations, and restricted access to asylum for those seeking safety at the southern border. These actions have been criticized for scapegoating and targeting immigrant communities, endangering refugees, and violating the due process rights of immigrants.
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Trump's Muslim and African bans
On January 27, 2017, President Trump signed an executive order banning foreign nationals from seven predominantly Muslim countries from visiting the US for 90 days, suspending the entry of all Syrian refugees indefinitely, and prohibiting any other refugees from entering the country for 120 days. This order sparked protests across the country, with lawyers from the ACLU and the NW Immigrant Rights Project rushing to Seattle Airport to help immigrants being denied entry.
The ACLU and other organizations filed lawsuits against the ban, arguing that it violated the Constitution and federal law, including the First Amendment's prohibition of the government establishment of religion and the Fifth Amendment's guarantees of equal treatment under the law. Federal Judge James Robart in Seattle issued an order temporarily blocking the ban, and four other courts also ruled against it.
The Trump administration justified the ban on national security grounds, citing screening and identity management inadequacies in the affected countries. However, critics argued that the ban was discriminatory and unconstitutional, targeting immigrants and violating their rights.
In addition to the Muslim ban, the Trump administration also imposed travel restrictions on African countries. Over half of the 43 countries on the administration's travel restriction list were in Africa, including Eritrea, Sierra Leone, and South Sudan. The administration also welcomed white South Africans, including Dutch-descended Afrikaners, as refugees, despite their role in codifying apartheid and subjecting Black South Africans to brutal segregation and land dispossession.
Trump's actions on immigration have been widely criticized as unconstitutional, with attempts to unilaterally change the Constitution by depriving babies of their birthright citizenship and using emergency declarations to authorize mass deportations and border wall funding.
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Trump's denial of due process rights
Trump has argued that fulfilling his campaign promise to carry out mass deportations may take precedence over granting due process to immigrants. He has stated that giving immigrants due process is time-consuming and could result in millions of trials, hindering his administration's ability to rapidly deport people. Trump's comments suggest a belief that his executive powers and the advice of his lawyers may supersede the constitutional right to due process.
The Supreme Court has clarified that immigrants are entitled to basic due process rights, which does not necessitate full trials. Immigrants must be afforded the opportunity to appear before an immigration judge and challenge their detention. However, the Trump administration has faced opposition from lower court judges and the Supreme Court, who have blocked their attempts to deport individuals without due process.
Trump's stance on due process for immigrants highlights a tension between his executive agenda and the constitutional rights guaranteed to all individuals in the United States, regardless of citizenship status. The courts have increasingly warned that the president is exceeding his authority, emphasizing the fundamental importance of due process protections.
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Trump's suspension of habeas corpus
The Trump administration has considered suspending the constitutional right of habeas corpus to expedite the deportation of migrants. The right of habeas corpus allows individuals to challenge their detention in court. While the Trump administration has argued that the United States is facing an "invasion" of migrants, legal experts and court decisions have disagreed, stating that all individuals in the United States have due process rights, regardless of their immigration status.
The Suspension Clause of the United States Constitution, specifically the second clause of Section 9 of Article I, states that habeas corpus "shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it." The Trump administration's justification for suspension relies on the interpretation of an "invasion," which has been contested by federal judges.
Historically, the United States has suspended habeas corpus on four distinct occasions, typically with authorization from Congress. However, legal scholars generally agree that only Congress has the authority to suspend habeas corpus, and unilateral suspensions by the President are unconstitutional. Despite this, the Trump administration has expressed its intention to explore this option, stating that it depends on whether the courts "do the right thing or not."
The potential suspension of habeas corpus by the Trump administration has raised concerns among critics, who view it as an attempt to expand executive power and circumvent legal challenges to mass deportation plans. This consideration is part of a broader context of the Trump administration's immigration policies, which have been characterized as ""unconstitutional, illegal, and cruel."
In summary, the Trump administration's contemplation of suspending habeas corpus to expedite deportations has sparked legal and ethical concerns. The administration's interpretation of an "invasion" has been challenged, and the consensus is that only Congress possesses the authority to suspend habeas corpus. This potential action aligns with other controversial immigration policies enacted by the Trump administration, contributing to a broader narrative of constitutional violations and the targeting of immigrant communities.
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Trump's use of national emergency declarations
On his first day in office, President Trump signed an Executive Order titled "Declaring a National Emergency at the Southern Border of the United States," invoking the National Emergencies Act to address what he described as a "crisis" of illegal immigration. This order directed the Secretary of Defense to deploy additional personnel to the border, including members of the Armed Forces and the National Guard, and instructed the Secretaries of Defense and Homeland Security to finish the wall along the southern border. Trump's declaration of a national emergency aimed to access billions of dollars in funding for the border wall, bypassing Congress, which had refused to appropriate the desired funds.
The use of national emergency powers to address immigration and fund border wall construction has been controversial. Critics argue that Trump's declaration circumvents the Constitution's language giving legislators control over appropriations and that it does not address a true national security crisis. Legal scholars have expressed concern that Trump is exploiting loosely written statutes to upend the constitutional balance of power. The National Emergencies Act of 1976 was intended to specify the circumstances under which emergencies could be declared and grant Congress the ability to terminate an emergency with a simple majority vote. However, a Supreme Court ruling in 1983 invalidated these legislative vetoes, making it harder to challenge a president's emergency declarations.
Trump's declaration of a national emergency at the southern border is part of a broader pattern of using emergency powers aggressively to pursue his policy goals. During his first 100 days in office, Trump invoked national emergencies to impose tariffs, accelerate energy and mineral production, and militarize federal lands at the border. He has also relied on emergency authorities to restrict immigration, such as by suspending the entry of certain aliens and restricting access to asylum and other immigration protections.
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Frequently asked questions
Trump violated the constitution by attempting to deprive babies of their constitutionally guaranteed citizenship.
Yes, Trump denied immigrants due process by claiming that it was time-consuming and would hinder his mass deportation plans.
Yes, Trump's immigration ban affected asylum seekers by closing the border entirely to people seeking asylum.
Yes, Trump's immigration ban did not provide any exceptions for unaccompanied children or those being trafficked into the United States.
Yes, Trump's immigration ban endangered and targeted refugees.
