Behind Trump’s Push To Erode Immigrant Due Process Rights

President Donald Trump’s first 100 days weren’t marked by splashy headlines declaring “mass deportations” or images of millions of people being forcibly removed from the country as he promised.

Instead, Trump and his top aides have been waging war on already-fragile due process in the immigration system, part of a consequential push for the courts to answer key legal questions that could permanently alter the country’s treatment of immigrants and expand presidential power.

The White House has spurred a slew of legal challenges by deploying archaic laws to circumvent the overwhelmed immigration courts. Trump last month invoked a wartime law — the 1798 Alien Enemies Act — to deport hundreds of immigrants the administration has accused of gang membership to El Salvador’s mega prison, including Kilmar Abrego Garcia, a mistakenly deported Salvadoran native whose case has set up a high-profile legal clash. The administration has also stripped thousands of students of their visas, using an obscure provision of the Immigration and Nationality Act to target pro-Palestinian activists.

There have been more subtle efforts, too: The Trump administration halted funding for legal aid for unaccompanied migrant children. The president moved to rapidly expand expedited removal, a fast-track deportation authority to remove some migrants without a hearing. The administration has also empowered judges to dismiss asylum cases without a hearing.

The efforts have been in some ways haphazard. U.S. citizens have been accidentally swept up in the president’s crackdown, and questions have emerged about whether some of the Venezuelans sent to El Salvador last month actually had gang affiliations or final removal orders from U.S. judges. In the case of Abrego Garcia, the Trump administration, after admitting they mistakenly deported him, has refused to bring him back to the United States despite a federal judge ordering them to “facilitate” his return and the Supreme Court upholding that decision. A Trump-appointed judge has also ordered the return of a different man deported to El Salvador in violation of another court order.

Taken together, the moves reveal a president who has long oriented his political identity around illegal immigration, newly emboldened to use every power at his disposal — and some that may not be — to reshape the country’s legal foundation on the issue. If he succeeds, the consequences will be much longer-lasting than what he achieved in his first term and could affect citizens and noncitizens alike.

“This is not just how we treat immigrants, it is about how any of us want to be treated when accused of a crime,” said Michelle Brané, former executive director of the Biden administration’s Family Reunification Task Force. “This is about power and eliminating the rules and saying, ‘we don’t need to play by the rules, just trust us.’ It’s undermining one of the main principles of what the U.S. is founded on.”

The rapid effort to alter what it means to have due process in the country’s immigration system is further evidence of the preparation during the president’s four years out of the White House, when the Biden administration moved to undo many of Trump’s policies from his first term and open pathways for millions of undocumented immigrants to enter the country. This time, Trump’s aides and allies are working to make changes a future president couldn’t so easily unravel, welcoming court battles that may turbocharge and fortify their agenda in the long run.

“The administration is going to have to keep pushing through the courts to attempt to exercise its legitimate authority,” said Mark Krikorian, executive director of the Center for Immigration Studies, a group looking to curtail immigration.

Trump’s top aides, including Stephen Miller, a key architect of the president’s immigration agenda, argue that not every immigrant can have a day in court if the administration wants to stop “the invasion.” It’s a grievance Trump has echoed in recent days, declaring that the U.S. “would need hundreds of thousands of trials for the hundreds of thousands of Illegals we are sending out of the Country.” He said it was “not possible” and a “ridiculous situation.”

A senior White House official told POLITICO that the president is deploying long-standing provisions of federal law and tools provided by Congress and “meticulously complying with the law” to “deliver on his promises to the American people.”

“It cannot be the case that we can give every single one of these people an immigration court hearing — and all of these procedures — and ever have enough resources to do so. You cannot judge your way out of a crisis of this magnitude,” the senior White House official said. “The federal courts have been clear. Congress has been clear on needing to speed this process up.”

Miller did not respond to requests for comment.

Trump’s strategy is an acknowledgment of the challenges his deportation agenda has faced, from funding and resource shortfalls to overloaded immigration courts. It’s a roadblock the last several administrations faced, with more than 3.6 million cases currently pending, according to the Transactional Records Clearinghouse, a non-profit research institute at Syracuse University.

“If every single one of these folks, even under something that’s supposed to be as stripped down as the Alien Enemies Act, still gets a federal court hearing, this will take forever, and it’s an incredibly asymmetric, one-sided situation when you can have a jack wagon president like Joe Biden who just opened the border,” said Ken Cuccinelli, who served as Trump’s deputy of Homeland Security during the first term. “The Trump administration is working very hard to find all the most streamlined ways they can to move quickly.”

Legal experts on both sides of the aisle say immigrants have rights enshrined in the Constitution, including due process. Immigrants have a right to know why the government is removing them, and a right to a hearing held in an immigration court — an administrative civil body under the Department of Justice, said Michael Kagan, director of the University of Nevada, Las Vegas Immigration Clinic. They are allowed to bring an attorney at their own expense and can offer evidence, though the federal rules of evidence do not apply. They can also bring witnesses and appeal.

“Most Americans would be really quite shocked, and many would be appalled at just how much due process an alien can receive who goes through the ordinary immigration court proceedings,” the senior White House official said.

An immigrant’s presence in the U.S. can be revoked by the federal government for certain reasons, including serious crimes — an argument Trump officials are relying upon in court in multiple cases as they contend that immigration is a privilege and that the executive has the ultimate authority to decide who can stay and who must leave.

It’s set up a major test for how the country will handle due process for noncitizens moving forward — a debate perhaps best captured in Abrego Garcia’s case. The administration has accused him of being a member of the “MS-13 gang,” which they have designated a foreign terrorist organization, building a case against the Salvadoran native in recent weeks as they combat Democratic criticism and intensifying scrutiny from the courts.

But Abrego Garcia has not been charged with a crime, and while he entered the country illegally, a 2019 court order barred him from being deported back to El Salvador to avoid gang persecution in his home country.

“I’m not an attorney. I’ll let DOJ argue this in court, but I think we can remove the public safety threat, gang member, designated terrorist from the United States who has been ordered deported twice by a federal judge,” Border czar Tom Homan said at the White House last week. “I think he got plenty of due process.”

Abrego Garcia’s case points to a central tension in the Trump administration’s immigration strategy: aggressively challenging court orders to try to force the higher court to issue larger rulings in their favor. They are seeking several answers on Abrego Garcia’s case and others from the Supreme Court: Trump officials want the court to validate the president’s authority to remove people without going through regular immigration proceedings in certain situations — and for this power to be defined. They want the court to define what constitutes an “invasion,” and for the extent of the president’s power to halt an “invasion” to be further clarified and affirmed. In the cases of the students whose visas they have revoked, they want the court to affirm the secretary of state’s power to revoke a lawful resident’s status over foreign policy concerns. And more broadly, they want the Supreme Court to step in and provide an answer on the extent of lower court judges’ power to block a president's policies nationwide — a question the high court will weigh in on next month.

“Allowing one person, including an elected president, to make huge decisions about the liberty of another person without any check is a recipe for tyranny, and the founders of this country knew that,” Kagan said. “It’s not surprising that a president would be tempted to push the limits or try to find their way around it, because due process is meant to frustrate the executive. That’s the whole idea. It is someone looking over your shoulder and saying, ‘let me make sure you did your work correctly.’”

While the administration deploys its legal strategy, allies are pushing Republicans in Congress to address some of these questions with legislation. Republican lawmakers are still working on a funding bill that would pump billions into immigration enforcement, and they are expected to discuss a separate border security bill.

“This all needs to be codified into law to prevent precisely the sort of thing that we saw going on during the Biden administration, where it’s just, ‘let anybody in that I want,’” said Ira Mehlman, media director at the Federation for American Immigration Reform, a group that works to limit immigration.

Illegal border crossings have continued to plummet since the president took office, but Trump aides have framed immigration as a national security threat as they push to expand the president’s authority through the courts. They’ve placed the country on a war-time footing that immigrant advocates have compared to the post-9/11 era, from designating gangs as terrorist organizations to enlisting the military to help with border enforcement to creating a national registry for immigrants.

“It’s both a legal and rhetorical strategy,” said Kathleen Bush-Joseph, a lawyer and policy analyst with the U.S. Immigration Policy Program at the Migration Policy Institute, a nonpartisan think tank. “It’s also a funding strategy. An invocation of an emergency or an invasion is allowing them to use these extraordinary means.”

It’s a politically risky move. A Reuters/Ipsos poll released last week showed 45 percent of Americans approve of Trump’s immigration agenda so far, and nearly 2-to-1 — 50 percent to 28 percent — say that Trump should bring Abrego Garcia back, according to The Economist/YouGov poll.

Democrats now have what they believe is a strong political argument to fight Trump on immigration: lean on due process concerns and argue that if Trump can ignore court orders in the Abrego Garcia case, he could do the same in the case of a U.S. citizen.

Even some high-profile Trump supporters have warned that the approach is alarming. Podcast host Joe Rogan, who endorsed Trump in 2024, argued that if sending alleged gang members to El Salvador with “no due process” becomes the standard, this tactic could be used to accuse anyone of being a gang member — with no day in court to prove otherwise.

“That’s dangerous,” he said. “We gotta be careful that we don’t become monsters while we’re fighting monsters.”