The Legal Implications of a Second Trump Presidency: An Immigration Attorney’s Perspective

As primary season has effectively ended and Donald Trump has all but secured the GOP nomination, it’s worth analyzing the potential impact a second Trump term would have on the legal landscape of U.S. immigration. The proposals outlined by the Heritage Foundation and the Trump Campaign raise a number of ethical and legal questions. Depending on what happens in November (and in the Supreme Court before then), they may also have concrete impacts on immigrants and their families.

Reinstatement of Travel Bans, Including the 'Muslim Ban':

During Trump’s first term, these bans faced numerous legal challenges alleging violations of the First Amendment's Establishment Clause and the Immigration and Nationality Act. A reimplementation would likely spark a similar series of legal battles, potentially reaching the Supreme Court and renewing the international condemnations that the bans initially provoked.

Ending Birthright Citizenship:

This radical shift would require a constitutional amendment or a significant reinterpretation of the 14th Amendment, which grants citizenship to all born on U.S. soil. Legal experts debate the feasibility and constitutionality of such a change. If pursued, it could upend the lives of millions of U.S.-born children of immigrant parents.

Mass Deportations and Detention Camps:

The logistical and humanitarian nightmare of pursuing mass deportations and large-scale detention camps would run into a number of legal challenges, but not before terrorizing families nationwide. Such actions would necessitate navigating a labyrinth of legal processes and raise a number of objections under U.S. and international law, particularly regarding human rights and due process.

Financial Aid Restrictions Based on State Immigration Policies:

Linking federal financial aid to state immigration policies could be seen as an overreach of federal power, infringing on states' rights. States with more inclusive policies toward immigrants would likely sue the federal government on these grounds.

Termination of Legal Status for Dreamers:

Dreamers, beneficiaries of the Deferred Action for Childhood Arrivals (DACA), exist in an uncertain legal situation. Removing their legal status would not only disrupt the lives of hundreds of thousands but also potentially violate the Administrative Procedure Act, something raised in opposition to previous attempts to dismantle DACA.

Ending Temporary Protected Status (TPS):

Similarly, the proposed ending of TPS could lead to legal challenges based on the Administrative Procedure Act but also potential violations of non-refoulement obligations under international law, which prohibit returning individuals to a country where they face serious threats to their life or freedom.

Using Backlog Numbers to Suspend Immigration Application Intake:

This proposal would likely face scrutiny under administrative law. It could be challenged as an arbitrary and capricious action under the Administrative Procedure Act, especially if it disproportionately affects certain categories of immigrants.
Suspension of Worker Visa Updates:

Halting updates to the eligible country lists for H-2A and H-2B visas would significantly impact sectors like agriculture and hospitality. This action might face legal challenges regarding its economic justification and adherence to the regulatory process.

Federal Housing Subsidies and Citizenship Requirements:

Imposing citizenship requirements for federal housing subsidies raises questions about discrimination and equal protection under the law. This could potentially lead to legal battles centered on the Fair Housing Act, which prohibits discrimination in housing.

Mandatory State Cooperation with Federal Authorities:

Requiring states to share personal information with federal immigration authorities touches on sensitive issues of federalism and privacy. This could lead to constitutional challenges, particularly under the Tenth Amendment and privacy laws.

While the general election feels far off, November is right around the corner. As attorneys, the proposals detailed above are worth preparing for and scrutinizing.