Courts Serve as Early Bulwark Against Trump Immigration Agenda

President Donald Trump’s pledge to tighten immigration controls and carry out the largest deportation campaign in US history has faced repeated setbacks in federal court.

Following an unprecedented barrage of anti-immigration executive actions in his first 100 days, judges have set limits on Trump’s ability to use wartime powers for enforcement, paused his bid to end birthright citizenship, and preserved temporary status for hundreds of thousands of immigrants.

“Federal courts across the country are trying to be a bulwark against the worst excesses of the administration in the immigration context,” Columbia Law School professor Elora Mukherjee said.

Still, the administration has notched initial court wins, including a decision denying efforts to block a rule requiring millions of foreign nationals to register with the federal government. And lawyers and advocates across the political spectrum note that the biggest legal questions have yet to be answered.

Judge Lets Trump Move Ahead With Immigrant Registry Rule

A US Courthouse in Seattle, Wash., where a federal judge on Feb. 6 paused President Donald Trump’s attempt to restrict birthright citizenship. His administration has faced repeated setbacks in court over its immigration agenda.

Photographer: Jason Redmond / AFP via Getty Images

Trump has issued 175 directives focused on immigration through April 22, a nearly six-fold jump compared to the same period in his first term, according to the Migration Policy Institute. At least 50 multi-plaintiff suits have challenged those measures, according to MPI, while individuals affected by enforcement policies filed dozens of others.

The White House on Monday moved to sign two executive orders intended to crack down on places that restrict cooperation with immigration enforcement.

With sometimes multiple immigration executive orders released in a single day, it’s often a matter of guessing which grenades get stuck in court and which ones “are going to detonate,” said Jeff Joseph, president-elect of the American Immigration Lawyers Association and partner at immigration law firm BAL.

“I think their idea is, we’re going to get sued and let’s just see if any of these stick,” he said.

Birthright Citizenship

No Trump executive order would upend immigration law more than his bid to end automatic citizenship for children born in the US to unauthorized immigrant parents or people with a temporary status, including employment-based visa programs. That order went even further than many observers expected, removing birthright citizenship for children of temporary workers like those on H-1B status as well as undocumented parents.

Advocacy groups and Democratic state officials who notched big wins during Trump’s first term have used the same aggressive legal playbook this time around: seeking immediate halts to Trump policies in federal courts seen as favorable to their position.

Multiple courts have issued injunctions blocking enforcement of the birthright order, with even Republican-appointed judges excoriating the initiative. One Reagan-appointed judge said Trump had “cloaked what is effectively a constitutional amendment under the guise of an executive order.”

“At the lower levels, it’s not going well,” said Lora Ries, director of the Border Security and Immigration Center at the Heritage Foundation, which supports Trump’s agenda.

The administration has responded by challenging the scope of nationwide injunctions. The Supreme Court agreed to hear arguments over whether those court orders should be narrowed in a special May 15 hearing.

Nationwide Orders

The administration has also attempted to block nationwide court orders preserving Temporary Protected Status and parole grants—as well as legal work authorization—for hundreds of thousands of immigrants from countries like Venezuela and Ukraine.

Attacks on such rulings have become increasingly popular among Trump allies, including in Congress. If a majority of justices limit the use of those orders, it could be vastly more difficult to stop many of the administration’s policies in court, said David Bier, director of immigration studies at the Cato Institute.

“It’s just not going to be possible to keep up with court filings in every district in the country,” he said.

Courts have stymied the administration’s use of the wartime Alien Enemies Act to remove immigrants alleged to belong to the Venezuelan gang Tren de Aragua. The Supreme Court required the government to give immigrants a chance to contest their removal, but mandated that challenges be brought in the place detainees are held.

Ries expressed confidence that the administration will ultimately win “when we get down the merits and past all these procedural ping pong balls” of nationwide injunctions. American Civil Liberties Union lawyer Lee Gelernt, who’s leading cases against the Alien Enemies Act, sounded a different note.

“Ultimately I think the courts will recognize that the Trump administration is flouting basic principles that have guided this country since its beginning,” he said.

Trump’s critics say courts must do more to rein in the administration following the White House’s resistance to some adverse rulings, such as one requiring it to “facilitate” the return of Salvadoran national Kilmar Abrego Garcia.

“It may be that courts at least during this administration try to issue orders that have less wiggle room,” George Mason University law professor Ilya Somin said.

International Students

One of the biggest wins claimed by immigrant advocates didn’t involve an executive order or official policy change by the administration. Dozens of international students have secured court orders requiring US Immigration and Customs Enforcement to reinstate their records in a federal database. ICE allegedly had terminated the students’ records without notice, threatening their legal status and work authorization.

Students’ attorneys say the administration likely based the cancellations on interactions with the criminal justice system. But many of the affected students were never even arrested, much less convicted of a crime.

With losses piling up in courts across the country, Justice Department attorneys on April 25 said the government was reactivating those student records until ICE produced a policy outlining a process for such terminations in the future. Immigration attorneys said that reversal shows the importance of fighting back in court but noted major questions remain unsettled.

The targeting of international students and use of the Alien Enemies Act show the administration often hasn’t thought through the legal grounding of new policies before adopting them, said Cato’s Bier.

“Everywhere you look, they’re acting first and thinking about the legal consequences later,” he said.