The brutal truth: Trump doesn’t need Congress to suspend immigration

A president cannot admit more people into the country than Congress authorizes. However, the president holds both delegated authority and inherent Article II powers over foreign commerce to prevent individuals from entering, even if Congress has authorized their admission.

Instead of relying on Congress to change laws or allocate funds, Trump should assert his authority to exclude and deport individuals. He can invoke emergency powers to redirect military funding, coordinate with state and local resources, and use this strategy to negotiate an immigration bill from a position of strength later in his presidency.

Declaring an emergency at the border offers another key advantage: Trump could redirect funding for removal operations without needing congressional approval.

With that approach, here are five authorities Trump should invoke on his way back from his second inaugural on January 20:

1. The right to exclude

Congress established the modern immigration enforcement framework through the Immigration and Nationality Act of 1952, later modified in 1965, 1980, 1990, and 1996. The INA outlines numerous categories of legal immigration and processes for addressing illegal immigration or asylum claims. However, Section 212(f) grants the president sweeping authority to halt all immigration categories at will, independent of these parallel processes.

This provision allows the president to “suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants” for as long as deemed necessary, provided the president determines their entry would be detrimental to U.S. interests.

This plenary power, upheld by longstanding case law and reaffirmed in Trump v. Hawaii (2018), is unreviewable by the courts. While Trump mainly used this authority during his first term to address terrorism concerns, Section 212(f) extends beyond national security to encompass the broader “national interest.” Justice Clarence Thomas, in his concurrence in Trump v. Hawaii, noted that the law “does not set forth any judicially enforceable limits that constrain the president.”

As a result, Trump — or any president — can determine that any form of immigration, including legal immigration, is detrimental to U.S. interests for reasons such as culture, wage depression, health, welfare, or the economy.

2. The right to regulate entry

Section 215(a)(1) of the Immigration and Nationality Act grants the president significant authority to regulate the entry of all aliens, covering both immigrant and nonimmigrant visas.

The law states: “Unless otherwise ordered by the President, it shall be unlawful — (1) for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.”

This provision allows the president to establish any process for handling asylum claims at the border, even without congressional reforms to immigration laws. While tightening certain laws would be ideal, it is not a prerequisite for the president to address illegal immigration during his term.

Furthermore, under these and other authorities, the president could reform or even halt processes such as the H-1B visa program as needed.

3. Inherent constitutional authority to block entry

Congress holds full authority over naturalization, entry rules, and deportations, while the president exercises power over foreign affairs and commerce. This means the ability to enter the U.S. depends on agreement between both branches. If either Congress or the president opposes an individual or group’s entry, they may be denied.

For instance, even if Congress passed a law explicitly stating that “all aliens seeking admission shall be granted status,” the president could still exclude individuals at his discretion. Justice Thomas has suggested the president might also possess inherent authority to deport, separate from delegated powers — a concept worth testing. In his dissent in Sessions v. Dimaya (2018), Thomas argued that this authority may exist inherently.

The strength of this executive power was affirmed by the Supreme Court in Knauff v. Shaughnessy (1950), which remains a controlling precedent. The Court stated, “The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation.”

A California district judge echoed this sentiment in 1996, in a case called Encuentro del Canto Popular v. Christopher. The court ruled that Congress does not act alone when it prescribes immigration procedures. Instead, it implements inherent executive powers under Article II.

Before Congress officially began regulating immigration in 1875, the State Department managed immigration diplomatically. For example, in 1872, Secretary of State Hamilton Fish warned the British that the United States would not accept immigrants from the “pauper class” supported by government funds.

Even without Section 212(f), no asylum statute could override the president’s authority to halt asylum cases when deemed to be in the national interest. With 212(f) in place, the president’s power to do so is unassailable.

4. Deputizing state and local law enforcement to deport

In addition to the 287(g) program, which deputizes state and local law enforcement to enforce immigration laws, particularly for criminal aliens in local jails, another authority becomes available if the president declares an emergency. Federal law empowers the attorney general to authorize state law enforcement to exercise the same immigration powers as federal officers if an “imminent or actual mass influx of aliens” is determined.

Since the law includes no exceptions to this rule, local law enforcement agencies that agree to participate could potentially apprehend, detain, and even deport illegal aliens. This authority would allow the president to enlist tens of thousands of additional personnel to support Immigration and Customs Enforcement in conducting mass deportations.

5. Redirecting defense funding for border and deportations

Declaring an emergency at the border offers another key advantage: Trump can redirect funding for removal operations without needing congressional approval. Instead of relying on Democrats for more detention space and removal funding — risking demands for amnesty in exchange — he can reprogram Department of Defense funds. Using the military budget to secure our homeland, rather than funding overseas conflicts like Ukraine, is a logical approach.

In 2019, Trump used these same authorities to begin border wall construction. He could now apply them to construct detention facilities, utilize military ships for deportations (which are more efficient than commercial flights), and support other border security operations.

Upon declaring a national emergency, Section 2808 of the Emergencies Act of 1976 allows the secretary of defense to undertake military construction projects “not otherwise authorized by law” that are necessary to support the use of the armed forces. Similarly, a parallel statute permits the secretary to redirect Department of the Army resources — including funds, personnel, and equipment — for essential civil works, military construction, and civil defense projects during such emergencies.

These statutes include minimal restrictions. The secretary of defense is required only to report the nature and costs of the projects to the relevant congressional committee — no further approval is necessary.

Another law authorizes the secretary of defense, upon request from federal or state law enforcement combating drug trafficking, to support counter-drug and anti-transnational crime activities. In fact, the legislation specifically authorizes the Defense Department to construct roads and fences and install lighting to block drug smuggling corridors along the U.S. border.

Trump could use these statutes to fund ICE detention space and logistics for mass deportations. By leveraging these existing authorities, he could launch deportation operations immediately without relying on Congress, offering concessions, or expending party-line budget reconciliation for border funding.

The president has all the authority he needs to safeguard U.S. sovereignty. As commander in chief, enforcing these laws is his primary responsibility. The issue lies not with the laws themselves but with faithfully executing them.