Trump's Abuse of Power Is About to Begin

We are just days away from Donald Trump's swearing in and the launch of four years of chaos, likely economic turmoil, and abuses of power not seen in decades.  Already, there are reports that there will be large scale ICE raids in Chicago beginning on Tuesday and Trump's border boss, Tom Homan is saying he wants to "deputize" every American citizens to turn in migrant families and children like something  the Nazis did for the reporting of Jews as the Holocaust unfolded.  Perhaps most sick is Homan's framing of his planned pogrom as “saving” migrant children from abuse as if family separations and putting children in cages is something laudatory.  Equally frightening are Trump's threats to invoke emergency and wartime powers such as the Insurrection Act, the National Emergencies Act, and the Alien Enemies Act to remove immigrant families - including potentially those legally in the country- and to intimidate those who might protest his abuse of power.  A piece in The Atlantic looks at the the coming threats and the reign of terror Trump seeks to unleash.  Here are article highlights:

The nation is bracing itself for what President-Elect Donald Trump has promised will be the largest deportation effort in American history. Trump has vowed to use the military to assist with deportations, relying on emergency and wartime powers such as the Insurrection Act, the National Emergencies Act, and the Alien Enemies Act. In addition to worrying about the impact on immigrant families, wider communities, and the economy, many Americans are wondering—is this legal?

The deportation of undocumented individuals who are ineligible for asylum or other legal protection is, of course, well within the government’s authority under current immigration law. . . . But deploying the military raises an entirely different set of legal questions. Even under the potent authorities Trump has cited, the actions he proposes to take would, at a minimum, be an abuse of power, and they might well be illegal to boot.

Some degree of military involvement in immigration enforcement is already permitted—and has occurred under multiple administrations—without recourse to emergency powers. This may be surprising to many Americans. Anglo-American law has a long tradition of military noninterference in civilian affairs, for the simple reason that an army turned inward can quickly become an instrument of tyranny.

In the United States, this tradition finds expression in an 1878 statute, the Posse Comitatus Act, that prohibits federal armed forces from participating in law-enforcement activities unless expressly authorized by law. . . . .Federal forces may still provide indirect support to law-enforcement agencies in a number of ways, including conducting reconnaissance, sharing intelligence, and furnishing and operating equipment.

In addition, the act applies only to federal armed forces. It does not apply to the National Guard—military units within the states that usually operate under state authority—unless the president has called Guard forces into federal service, at which point they become part of the federal military.

The seemingly permanent militarization of the U.S.-Mexico border may not violate the Posse Comitatus Act, but it has led to a variety of harms. When thousands of soldiers are routinely arrayed at the border, Americans receive the message that migrants are a threat to national security and public safety—a baseless notion that underlies and fuels support for Trump’s anti-immigration platform. Prolonged deployments at the border are also bad for the military, as they undermine service members’ morale and divert resources and personnel from core military functions.

Trump now reportedly seeks to double down on the militarization of immigration enforcement by invoking a trio of emergency authorities, beginning with the Insurrection Act of 1807—the primary statutory exception to the Posse Comitatus Act. The Insurrection Act gives the president broad powers to deploy federal armed forces (including the federalized National Guard) to quell civil unrest or enforce the law. The criteria for deployment are written in vague, archaic terms that provide few clear constraints. To make matters worse, the Supreme Court held in 1827 that the president is the sole judge of whether the criteria for deployment have been met. In other words, courts generally cannot review a president’s decision to invoke the law.

[I]t’s conceivable that Trump’s purpose in invoking the Insurrection Act is purely symbolic—a performative act of “shock and awe.” (The very name of the law suggests that immigrants are attacking from within and must be defeated through force.) At least in theory, though, the law could allow federal forces to perform core law-enforcement functions, such as apprehending and detaining immigrants, in any state in the country and against any governor’s wishes.

Soldiers rolling into American towns in armored vehicles, knocking on doors, and carting people off to military detention facilities would create risks and harms that current border operations do not. For one thing, direct interactions between military personnel and civilians in fraught circumstances carry a significant potential for violence. . . . .Furthermore, the visible presence of soldiers deployed in the streets would be both alarming and chilling for many Americans. Some would undoubtedly feel less comfortable engaging in protests against Trump’s policies or other basic acts of personal expression.

Heavy involvement of the military in immigration enforcement would also require a massive infusion of resources, both financial and human.

Finally, Trump has pledged to invoke the Alien Enemies Act—the last remaining vestige of the notorious 1798 Alien and Sedition Acts. A president may invoke this law when Congress has declared war or when the president proclaims an “invasion” by a foreign government. It allows the president to detain and deport immigrants, including green-card holders and others lawfully in the country, who are not U.S. citizens and who were born in the enemy nation. Immigrants targeted under the act are not entitled to the hearings and other procedural protections afforded by immigration law.

Most notably, if Trump were successful in invoking these laws, they could allow troops to detain and deport not just undocumented individuals but people who are lawfully present in the United States.

There is no question that the authorities Trump has cited grant the president sweeping powers. The Brennan Center, where I work, has called attention to the dangers posed by each of them. . . . But there is also no question that Trump’s proposed actions, as he and his allies have framed them, would be a staggering abuse of these authorities—and quite possibly illegal. Despite the permissive language of the Insurrection Act, it was clearly intended for crises that could not be solved by civilian government actors. That is why it has been invoked only 30 times in the nation’s history and has lain dormant for the past 33 years.

Having actively obstructed an effort to ramp up civilian enforcement of immigration laws, Trump can hardly argue that military deployment is a “last resort.”

Although Trump has not identified which powers he plans to use, none of the 150 provisions available during a national emergency is designed to facilitate deportation. Trump will likely be stretching some of these laws beyond their permissible limits.

Perhaps the most glaring abuse would be invoking the Alien Enemies Act. The history and design of the law make clear that it is a wartime authority only. It was intended to address armed attacks by foreign nations, not people fleeing political persecution, drug- and gang-related violence, or economic hardship. Even if a significant portion of migrants were criminals—a myth contradicted by all available evidence—that would not render their border crossing an act of war.