For the first time since 2014, and the last time until 2087, Easter Sunday will fall on April 20. The 20th will also mark the last day of Passover, Chinese Language Day, International Cannabis Day, and the 136th anniversary of the birth of Adolf Hitler. There’s a lot going on.
But of all the observances and events that will take place, only one has the potential to alter the course of American democracy. April 20 is the deadline Defense Secretary Pete Hegseth and Homeland Security Agency head Kristi Noem have for submitting a joint report to President Donald Trump about conditions at the southern border, along with their recommendations for invoking the Insurrection Act of 1807 and the National Emergencies Act of 1976.
Hegseth and Noem were given this task by a presidential proclamation declaring a state of emergency at the border, and an accompanying executive order (EO No. 14159) that Trump issued on Jan. 20. The edicts gave the department leaders 90 days to reach their conclusions. Both are based on the theory that the U.S. faces an invasion of undocumented migrants on its southern flank, and are part of a larger set of 51 executive orders, 12 memorandums, and four proclamations Trump promulgated on the first day of his second term.
If any of this comes to pass, it won’t just be undocumented migrants, foreign students, asylum-seekers, and suspected gang members who end up in the crosshairs.
There are some fine distinctions between EOs, presidential memoranda, and proclamations—principally, that EOs are directed specifically at federal agencies and must be published in the Federal Register while the others need not be—but the order and the emergency proclamation work as a package and must be read in tandem. EO 14159 is entitled “Protecting the American People Against Invasion.” It begins, in the histrionic fashion of the 47th president, blaming former President Joe Biden for the breakdown of our immigration system, declaring:
Over the last 4 years, the prior administration invited, administered, and oversaw an unprecedented flood of illegal immigration into the United States. Millions of illegal aliens crossed our borders or were permitted to fly directly into the United States on commercial flights and allowed to settle in American communities, in violation of longstanding Federal laws.
Many of these aliens unlawfully within the United States present significant threats to national security and public safety, committing vile and heinous acts against innocent Americans. Others are engaged in hostile activities, including espionage, economic espionage, and preparations for terror-related activities. Many have abused the generosity of the American people, and their presence in the United States has cost taxpayers billions of dollars at the federal, state, and local levels.
To combat the invasion, the EO calls for the formation of joint interagency task forces to expand the use of expedited removal (deportations without hearings) of the undocumented, deny federal funding to “sanctuary” jurisdictions, impose criminal and civil penalties on undocumented persons who fail to register with the federal government, and to devise a plan to carry out such measures within 90 days.
The EO does not specifically mention the Insurrection and National Emergency acts, but the proclamation cites both statutes as sources of presidential power. In addition to the 90-day reporting deadline, the proclamation authorizes the Defense Department to complete construction of the border wall, and to deploy the Armed Forces and National Guard to assist Homeland Security to obtain “operational control” of the border.
Although the proclamation and order seem limited on their face to the immediate southern border, legally they apply to a much broader geographical area. Even without the new initiatives, federal law gives U.S. Customs and Border Patrol the power to conduct searches and make arrests within an “expanded border zone” that extends 100 miles from any external international boundary. According to the American Civil Liberties Union, some 200 million people live within the expanded zone, including everyone residing in New York City, Los Angeles, Chicago, and the entire state of Florida. In the interior of the country as well as in the expanded zone, Immigration and Customs Enforcement (ICE) wields the power of arrest.
There have been other periods of immigrant scapegoating and persecution in U.S. history, but this is the first time that immigration enforcement has been officially linked by presidential decrees to the Insurrection Act.
Originally adopted in 1792 as the “Calling Forth Act,” the Insurrection Act on the books today authorizes the president to deploy the Army and deputize the National Guard to suppress insurrections, rebellions, instances of civil disorder, and unlawful “combinations or assemblages” that obstruct the authority of the United States or the ability of any state to enforce the law.
The Insurrection Act operates as an exception to the prohibition of the domestic deployment of federal troops, as codified in the Posse Comitatus Act of 1878. It has been invoked 30 times. In the 19th century, Abraham Lincoln utilized the act in response to southern secession at the outset of the Civil War; and Ulysses S. Grant used it during Reconstruction to respond to the rise of the Ku Klux Klan. In the 20th century, Woodrow Wilson used the act against striking Colorado coal miners; Herbert Hoover used it against “Bonus Army” protesters in Washington, D.C.; Dwight D. Eisenhower used it to enforce the integration of public schools in Little Rock, Arkansas; and George H.W. Bush used it in response to the 1992 riots in Los Angeles.
Trump threatened to invoke the Insurrection Act in 2020 to quell mass demonstrations related to the murder of George Floyd, but reportedly was restrained from doing so by former Joint Chiefs Chairman Gen. Mark Milley and other “grown-ups” in his first administration. This time around, the grown-ups have left the building. There are no restraints.
Invoking the National Emergencies Act poses additional dangers in Trump’s hands, allowing him to unilaterally activate an estimated 150 statutory powers. These include the authority to waive the minimum comment periods for proposed regulations, seize American citizens’ assets without due process, and, perhaps most alarming of all, shut down or take over private communications systems.
If any of this comes to pass, it won’t just be undocumented migrants, foreign students, asylum-seekers, and suspected gang members who end up in the crosshairs. We could all be at risk.
