Democratic attorneys general are preparing a raft of legal actions to prevent Donald Trump from carrying out mass deportations of undocumented immigrants, setting the stage for a series of showdowns over one of his central campaign pledges.
In interviews with POLITICO, six leading blue-state prosecutors said they are girding to take Trump to court over misusing military troops on domestic soil, attempting to commandeer local or state law enforcement to do the job of the federal government and denying people’s constitutional right to due process.
The attorneys general also said they would move to challenge Trump if he tries to federalize the National Guard — or attempts to direct active-duty military units or National Guard troops from red states into blue states. They are bracing to push back against his administration sending immigration agents into schools and hospitals to target vulnerable populations.
And they are preparing to fight Trump over withholding federal funding from local law enforcement agencies in an attempt to induce them into carrying out deportations, as he did unsuccessfully in his first term.
The attorneys’ preparations underscore the depth of concern among blue-state leaders about Trump’s deportation plans and foreshadow the major role state prosecutors will continue to play in shaping the country’s immigration policy. Following a rash of red-state challenges to President Joe Biden’s immigration agenda over the last four years, it’s now blue-state attorneys who are positioned to set off another round of legal clashes — this time intended to stymie Trump on his signature issue.
“There are ways to [handle immigration] that are in line with American values and conform to American law. But they don’t seem to be interested in pursuing that,” New Mexico Attorney General Raúl Torrez, a former federal prosecutor who has experience in immigration enforcement, said of Trump and his allies. “And that’s where someone like me has an important role to play.”
MOVES AND COUNTERMOVES
While some have dismissed Trump’s pledge to carry out the largest deportation in American history as infeasible, Democratic attorneys general are taking the incoming president at his word. They are preparing briefs and analyses and even identifying courts in which to file their lawsuits as they brace for him to begin rounding up undocumented immigrants, who number some 11 million, en masse.
It is setting up a legal chess match between a president-elect looking for new ways to press the limits of executive power and a cadre of state prosecutors already familiar with his playbook and adapting to changes in his approach. And it is unfolding amid broader shifts in the politics of border security.
The incoming president’s policy team is already thinking about how to craft executive actions aimed to withstand the legal challenges from groups and state prosecutors — all in hopes of avoiding an early defeat like the one that shuttered his 2017 travel ban targeting majority-Muslim nations.
But each step Trump takes during his transition — stacking his Cabinet with immigration hardliners who have pledged to carry out his calls for large-scale deportations, and confirming he intends to both declare a national emergency and use the military in some form to aid his plans — gives Democrats more clues about how to attempt to block his efforts once he takes office.
Trump pledged on the campaign trail to invoke the Alien Enemies Act of 1798 to expedite the removal of immigrant gang members. He is expected to end parole for people from Cuba, Haiti, Nicaragua and Venezuela, and deactivate a mobile phone application called CBP One that migrants could use to set up appointments to seek asylum.
His border-czar-in-waiting, former acting Immigration and Customs Enforcement director Tom Homan, has vowed to ramp up workplace raids. His incoming deputy chief of policy, Stephen Miller, has spoken of deputizing the National Guard as immigration enforcement officers and even sending troops across state lines to circumvent any resistance efforts. While federal law largely prohibits using military forces for domestic law enforcement, Miller last year identified a workaround — the clause in the so-called Insurrection Act that gives the president power to deploy the military on domestic soil in times of turmoil.
And on Monday, Trump confirmed in a social media post that he intends to declare a national emergency and marshal military assets to help execute deportations.
State prosecutors argued in interviews that those plans are on shaky legal ground. And talk of using the military has already spurred policy divides between the incoming president and Republican lawmakers, with libertarian-leaning GOP Sen. Rand Paul (R-Ky.) saying this week that Trump’s plan to carry out mass deportations with the military’s help would be a “huge mistake” — an early sign that Democrats might have some allies on this front.
“I don’t think the theories that they have comport with federal laws, so there would be a direct challenge to the legal basis the president would use to deploy the United States military,” Torrez said.
“Separate and apart from the legal arguments that we would be advancing in court, I think there’s a broader context that most Americans are simply not comfortable and do not support utilizing military assets in that way,” Torrez added.
WHERE TO PUSH BACK — OR NOT
Attorneys general aren’t planning to stand in the way of lawful immigration enforcement. In many cases they will work with federal authorities to address public safety threats and to help catch and deport criminals — as they have in the past. And even as they prepare for what they cast as potential overreach from a second Trump administration, they note that their next steps largely depend on how the president-elect implements his plans, which is difficult to predict.
Trump’s advisers have suggested the Republican administration will take a more “targeted” approach to deportations, starting with those who are known or suspected national security threats and who have criminal records. But attorneys general are skeptical he will stick to that. And they are fearful he could begin targeting both undocumented immigrants who have been in the country for a decade or more and have established roots, or those who entered the country through legal pathways — scenarios they warn could lead to family separation and cause chaos in some communities.
“If he’s going to want to achieve that type of scale, the largest deportation in U.S. history, as he says, by definition he’s going to have to target people who are lawfully here and … go after American citizens,” New Jersey Attorney General Matthew Platkin said. “And we’re not going to stand for that.”
Trump pledged on the campaign trail to begin his deportation push in Aurora, Colorado, the Denver suburb he routinely depicted — despite pushback from locals — as a “war zone” that had been “invaded and conquered” by members of the Venezuelan gang Tren de Aragua. Phil Weiser, the state’s attorney general, said he will be “laser-focused” on determining whether Trump’s immigration officials are denying people due process — a move he called “unAmerican.”
Attorneys general from Colorado to California are also preparing for repeat battles over federal funding. Trump threatened throughout his first term to withhold funding from states and cities with so-called sanctuary policies that limit local law enforcement’s interactions with federal immigration authorities. His administration also attempted to attach immigration-enforcement conditions to grants for local law enforcement — and lost in court.
“We won’t take that lying down, just as we didn’t last time,” California Attorney General Rob Bonta said.
In response to a request for comment for this story, Steven Cheung, Trump’s communications director, said in a statement that the president-elect has “nominated the most highly qualified and experienced attorneys to lead the Department of Justice” and “focus on enforcing the rule of law.”
Democratic prosecutors’ resistance will extend beyond the courtroom. Advocacy groups such as the ACLU are already pushing attorneys general to use other tools at their disposal — such as issuing guidance to state and local agencies about how to handle immigration requests from the federal government — to attempt to slow implementation of Trump’s immigration actions.
And attorneys general are already embarking on a messaging campaign both against Trump’s broad characterizations of migrants as “blood thirsty” criminals and in support of immigrants who are contributing to local communities. They are also joining other Democratic leaders in starting to cast Trump’s deportation plans as potentially harmful for the economy he has pledged to improve, drawing a direct line between the immigrant workforce that helps drive the nation’s agriculture industry and higher prices at the grocery store.
Trump has created the narrative “that every immigrant who is here in, say, Massachusetts, or this country, illegally is committing crimes,” said the state’s attorney general, Andrea Campbell. “It’s just not true.”
Shia Kapos and Josh Gerstein contributed to this report.