Trump needs you to believe there's a border 'emergency' so he can deport anyone | Opinion
President Donald Trump seems ready to wield the Insurrection Act of 1807, even if he's lying about all of his reasons.
Donald Trump has bragged every month since returning to the presidency in January that his administration has drastically curtailed illegal entry to our country at the southern border. He often claims – falsely, of course – to have set some kind of record there.
Now we find out if Trump, on April 20, will invoke the Insurrection Act of 1807 to deal with what he called on his first day in office "a national emergency at the southern border." Trump has already invoked archaic federal laws to curb immigration while also having the military take over land along the border.
Call that the Trump triple play – he declares an emergency, then proclaims to have remedied the emergency, and then demands expansive powers to deal with the emergency that he claims to have already resolved.
Trump couldn't care less about logical disconnects. His sole focus is on expanding the power of his presidency. He'd never let facts – or his own proclamations – block that path.
Trump desperately wants to have an emergency at the border
In his Jan. 20 executive order declaring an emergency at the southern border, Trump set a 90-day deadline for Homeland Security Secretary Kristi Noem and Defense Secretary Pete Hegseth to submit a joint report on conditions at the border, "including whether to invoke the Insurrection Act of 1807."
CNN on April 18, citing government sources, reported that Noem and Hegseth are expected to not recommend invoking the Insurrection Act for now, because border crossings are decreasing.
We'll see about that. While we wait, it's worth considering that Noem and Hegseth would never, under any circumstances, tell Trump something he does not want to hear. They've never shown us that kind of strength of character. Don't expect it now.
Elizabeth Goitein, the Brennan Center for Justice's senior director for liberty and national security, told me Trump has wanted to invoke the Insurrection Act since the 2020 protests during his first term, after the murder of George Floyd by a Minneapolis police officer.
Mark Esper, then Defense secretary, dared to tell Trump no then. He could teach Hegseth and Noem plenty, if they had the capacity to learn a lesson in integrity. Spoiler alert: They don't.
Invoking the Insurrection Act would allow Trump to deploy active-duty military members for law enforcement in this country, while also federalizing National Guard units from states to join that effort.
That could mean soldiers rolling into cities in armored vehicles, stopping people on the streets while demanding identification, and going door to door to search houses.
"We don't know until we see it," Goitein said, "but that is the kind of thing that, in theory, could be permitted under the Insurrection Act."
Trump's 'legally incoherent' approach to immigration
Trump invoked the Alien Enemies Act in March to assist a mass-deportation effort. But the U.S. Supreme Court on April 19 told him to stop, for now, deporting Venezuelan migrants from this country, after lawyers successfully argued that the process required judicial review.
Trump issued another executive order on April 11, authorizing the U.S. military to take control of federal lands along the border. His attempt to use military personnel along the border could also prompt a legal challenge.
Goitein calls Trump's approach "legally incoherent" since the Insurrection Act treats unlawful migration "as a law enforcement matter" while the Alien Enemies Act treats it "as an act of war" and Trump's new militarization of the border treats it "as an act of trespass on a military base."
And, again, all this comes while Trump brags about efficiently and effectively closing the border. Here's what he told the National Republican Congressional Committee in an April 8 speech: “In a matter of weeks, we've achieved the lowest level of illegal border crossings in American history.”
That's not true, of course. Apprehensions of migrants who crossed into the country unlawfully is at the lowest level in decades, but not in U.S. history.
This is the truth about what Trump wants to do with deportations
The truth here is easy to see and has been just as easy to predict, as I did in a column on Nov. 24, three weeks after Trump won reelection. He wants to turn the military loose in America to pursue people he perceives as his enemies. If you think that stops with undocumented immigrants, you haven't been paying attention.
Don't take my word for it. Read what federal Judge J. Harvie Wilkinson wrote in his opinion for the 4th Circuit Court of Appeals on April 17 after White House officials continued to try to weasel out of their responsibility for unlawfully deporting a Maryland man to El Salvador with zero due process.
"If today the Executive claims the right to deport without due process and in disregard of court orders, what assurance will there be tomorrow that it will not deport American citizens and then disclaim responsibility to bring them home?" Wilkinson, a known conservative, wrote in a judicial slap down to Trump and his administration.
Goitein of the Brennan Center for Justice told me Trump has been sending mixed signals the whole time he has been back in the White House.
"Trump himself posted on social media that the invasion is over, that very few people came in the last couple of months to try to get over the border," Goitein said. "They have made an incredibly strong case that the president must terminate the emergency declaration that he issued on January 20."
Vanessa Cárdenas, executive director of America's Voice, an immigration rights organization, told me she sees two motives for Trump invoking the Insurrection Act. One: He loves to "scapegoat" immigrants. And two: He could really use a distraction in the news right now, given all that is going wrong with his administration.
Trump's mission is to make Americans afraid as a distraction
The first motive, which she calls a "hateful narrative," is "aimed to psychologically make the American public believe that we have something to fear."
"He is invoking all of these really archaic laws to justify this idea that he is promoting this idea of invasion," Cárdenas said. "It's part of a political strategy to agitate his base and continue creating hate and anger towards immigrants."
While he presses his immigration crusade, Trump is also crashing the stock market with illogical trade tariffs that he about-faces on and then doubles down on. And, after winning reelection by promising to make things more affordable, Trump has shown zero effort to actually improve the economy.
"He would love a distraction right now," Cárdenas said of the Insurrection Act, "and I think this could be it."
Goitein told me the courts have long been reluctant to question a president's declaration of an emergency. But the U.S. Supreme Court, she said, has suggested there is an exemption to that – a president acting in "bad faith."
If ever a legal precedent sounds tailor-made for Trump, this would be it. Bad faith is his primary operating system.
"There are exceptions when the president has exceeded a permitted range of honest judgment, where the president has made an obvious mistake, or where the president is acting in a way that's manifestly unauthorized by law," she said, adding that courts are "triggered in the situation where the president is simultaneously bragging about the lack of an emergency at the southern border and trying to invoke emergency powers."
So, like just about everything we've seen in Trump's first three months in office, the courts, a coequal branch of our government, will probably be called upon to rein in another abuse of power from him. The question is still unanswered – will Trump follow the law if judges tell him to stop?
Follow Paste BN columnist Chris Brennan on X, formerly known as Twitter: @ByChrisBrennan. Sign up for his weekly newsletter, Translating Politics, here.