Jean Lantz Reisz, University of Southern California

During his first day in office on Jan. 20, 2025, President Donald Trump signed a slew of executive orders on immigration that would make it harder for refugees, asylum seekers and others to try to enter the U.S. – and for some immigrants to stay in the country.

On Monday night, Trump signed executive orders that included declaring a national emergency at the U.S.-Mexico border and pausing refugee admissions for at least four months. Migrants trying to enter the U.S. at the border also found that CBP One, an app they used to schedule asylum application appointments, was shut down.

Amy Lieberman, a politics editor at The Conversation U.S., spoke with scholar Jean Lantz Reisz, co-director of the University of Southern California’s Immigration Clinic and a clinical associate professor of law, to understand the meaning of Trump’s new executive orders – and the challenges he could face in implementing them.

Will Trump be able to carry out these many executive orders?

When it comes to immigration and national security, the president has a broad range of powers. We are hearing that Trump is trying to end asylum. Migrants at the U.S. border today had their appointments with Customs and Border Protection canceled.

There will be litigation because asylum is a big part of U.S. law and only a Congressional act can end it. Using different kinds of national security and public health actions, like Title 42, an emergency health order that allowed the government to turn away migrants at the border because of COVID-19, has been successful in the past at making it harder for people to seek asylum – but a presidential action cannot end asylum.

If Congress wanted to end asylum, it would be a terrible thing in the world of international human rights, but it could still happen.

Trump announced he will reinstate the Remain in Mexico program, which requires people seeking asylum in the U.S. to remain in Mexico while they await their court date. It would require Mexico’s cooperation to do this, especially since this would apply to migrants who are not even from Mexico. Usually, this kind of announcement would have to first be published in the Federal Register for comment. This procedure has not been followed here and could leave this policy open to legal challenges.

What does it actually mean to shut down the border?

We don’t have the details yet, but it looks like shutting down the border means the U.S. government will no longer process any migrants coming to the border without visas for asylum or other kinds of humanitarian relief.

Up until now, if a migrant comes to the U.S. border and says they fear returning to their home country, they are supposed to be given a so-called “credible fear interview.” That would be suspended. People have the right to seek asylum under U.S. law, and by shutting the border down, the president is preventing people from exercising that right.

Now, under Trump’s orders, migrants who are crossing into the country and seeking asylum or humanitarian parole at a U.S. border port of entry will be denied the right to stay in the country, even temporarily. Everyone who crosses the border will be immediately expelled from the country.

That is an immediate impact that is already being felt at the border. But for people who already crossed the U.S. border and applied for asylum, their situations have not changed, according to these executive orders. This is also unlikely to affect people who have visas to enter the country or those conducting any commerce across the border.

Trump announced that he will use the Alien Enemies Act to deport immigrants who are in the country illegally. Are there limits on his ability to do that?

The president has the authority to invoke the Alien Enemies Act, a law from 1798 that allows a president to detain and deport noncitizen males during times of war. This is aimed at making it easier to deport people who have been suspected of belonging to a drug cartel.

But the U.S. government then has to prove that it is at war with the migrant’s country of origin, and that the drug cartels represent this entire country and government. In the immigration system, a president can deport someone who is suspected of supporting or belonging to a drug cartel or terrorist group, but Trump may be using the Alien Enemies Act to deport a targeted group of persons more quickly.

The Alien Enemies Act does allow a federal court to review whether or not a person being targeted by the U.S. government is actually an alien enemy. This hasn’t actually played out for almost 100 years, but someone could challenge the government’s designation that they are a foreign enemy and take the claim to a federal court, or all the way up to the Supreme Court.

What are some of the other big changes that you will be watching?

First, The Washington Post reported that the Trump administration will end birthright citizenship, which gives U.S. citizenship to U.S.-born children of noncitizens. I think that would play out by Trump issuing orders to federal agencies like the U.S. Citizenship and Immigration Services and the Social Security Administration to not process citizen’s applications for passports or Social Security numbers if they cannot demonstrate that the citizen’s parents were lawfully present in the U.S. at the citizen’s birth.

That would then be challenged with lawsuits because the president can’t just say there is no more birthright citizenship when it is part of the U.S. Constitution.

I am also expecting mass arrests of immigrants living in the U.S. without legally authorized status through workplace raids targeting them. The president has the authority to arrest everyone who is in unlawful status. But most immigrants living in the U.S. without legal authorization have the right to go in front of an immigration judge to argue that they are lawfully in the U.S. There is a long backlog right now of cases in immigration court. It could also be prohibitively expensive to arrest, detain and deport the millions of people that Trump wants to deport.

Finally, by declaring a national emergency at the southern border, Trump could use Department of Defense funding for immigration enforcement and allow the military and the National Guard to help patrol the border and build a border wall.

The National Guard has assisted in border security administrative work under Joe Biden’s administration, as well as Barack Obama’s and Trump’s, by doing things like mending fences and stocking warehouses. This freed up more Border Patrol and Customs and Border Protection agents to go out and actually arrest immigrants. That is nothing new.

But the way Trump is saying he is going to enlist military to do the law enforcement would likely be challenged. U.S. law says you cannot use the military in internal law enforcement operations.

Jean Lantz Reisz, Clinical Associate Professor of Law, Co-Director, USC Immigration Clinic, University of Southern California

This article is republished from The Conversation under a Creative Commons license. Read the original article.

John E. Jones III, Dickinson College

In the first hours of his second term, President Donald Trump pardoned nearly everyone convicted of crimes associated with the Jan. 6, 2021, insurrection at the U.S. Capitol – including former Proud Boys leader Enrique Tarrio – and commuted the sentences of 14 more, including Oath Keepers founder Stewart Rhodes.

CNN reported that nearly 1,600 people have been charged and about 1,300 have been convicted of crimes committed on that day. There are about 300 cases “still active and unresolved,” CNN reported.

According to a Washington Post analysis, 14 leaders of far-right militant groups Oath Keepers and Proud Boys have been convicted of seditious conspiracy. And 379 people have been charged with felony assault; most of them have been convicted already. though some are still awaiting trial. Trump also ordered the Justice Department to dismiss all pending indictments against Jan. 6 defendants.

To understand the situation, Jeff Inglis, a politics editor at The Conversation U.S., spoke with John E. Jones III, a retired federal judge who was appointed to the bench by President George W. Bush and confirmed unanimously by the Senate in 2002. Jones is now president of Dickinson College.

What’s the difference between a pardon and a commutation?

A pardon essentially wipes away the offense and restores the constitutional rights that a person convicted of a federal felony crime would be deprived of, such as the right to vote and to travel unimpeded. Technically, it does not mean they’re not guilty of the offense, but it washes away all the consequences of the offense.

A pardon can be anticipatory, but in most cases historically it’s given after a person has been convicted of a crime, or at least charged.

A commutation means that, essentially, the president believes the sentence is too harsh or too long. The commutation could either let somebody out of jail immediately and terminate their sentence or could shorten the amount of time remaining for them to serve.

The key difference is that a commutation doesn’t change the fact of a conviction and doesn’t wash away the consequences.

What do judges think about a president exercising the power to pardon and commute?

There have been instances historically where judges probably have agreed with commutations and pardons. It’s typically not ever top of mind when you sentence people that someone is going to commute that sentence or pardon. It’s a pretty rare occurrence.

I will say that in my experience, if someone was angling for a commutation or pardon without any sense of gratitude or remorse, that would be more difficult to swallow for the judge who passed the sentence.

What do judges think about Trump’s actions in these Jan. 6 cases?

In many cases, these judges sentenced the offenders to less than what the government was asking for. They gave them a break and went below the advisory sentencing guidelines that judges have to consult when they pass sentence. They’re not mandatory, but judges have to explain why they’ve sentenced outside the guidelines when they pass sentences. The Department of Justice wanted sentences at the upper end of the guidelines because of the conduct of the individuals.

When it comes to Jan. 6 offenders, not only do I think they received appropriate due process, but in some cases, I believe they received excessive due process.

For example, look at the case of a person from Pennsylvania named Joseph W. Fischer. Fischer is a former police officer, and he was charged, among other things, with obstructing the business of Congress by damaging or destroying items. He argued that his actions did not meet the criteria of obstructing Congress and took his case all the way to the Supreme Court, which sided with Fischer. He had access to the courts. He had good lawyers. He took the case all the way up and was able to rid himself of that particular charge.

I think the judges were fully capable and did, in fact, sentence according to the degree of conduct of the offenders.

You’re a retired federal judge. How does this action of pardoning and commutation of this group of people make you think about the justice system?

Two of the purposes of sentencing are deterrence and respect for the law.

Taking deterrence first, imagine you are an individual who believes that taking the law into your own hands and attempting to interfere with the business of government is the right way to proceed when you disagree with the result. The message that blanket pardons or commutations sends is essentially: You can get away with those actions without penalty, because your benefactor is going to save you in the end.

Respect for the law is another aspect. What I’m hearing from a number of incarcerated folks who say they expect to be pardoned or have their sentences commuted is that they don’t believe they’ve done anything wrong. Might those same individuals engage in similar behavior at another time, thinking that they can do that with impunity?

I think Trump is going to make these people into martyrs and heroes, and to my mind, that flies in the face of the facts of these cases.

How do you think about Trump’s Jan. 6 pardons and commutations alongside the pardons and commutations that former President Joe Biden issued on the way out the door?

It’s really troublesome. Setting aside my judicial career and history and career in the law, the fact of the matter is, the general public just sees dozens and dozens, if not hundreds, of pardons.

It is probably true that we’re seeing an overuse of the pardon power at this point, maybe more than we’ve ever seen in history.

I think Biden pardoning his family members was bad for him. If you’re going to do it, do it in the light of day. There’s still a bad taste in many people’s mouths about Hunter Biden’s pardon.

I see the point: He’s taking Trump’s threats of retribution seriously. The Justice Department could convene grand juries and investigate folks, and whether they were bona fide charges or not, it would cost them millions of dollars in legal fees. In the case of Hunter Biden, I guess any parent has empathy. It’s his son, and he had the power to do it. It’s sort of a tortured situation.

But then I think about all of us on Jan. 6, 2021, turning on the TV and seeing something that we’ve never seen before in history. It is rare that something happens for the first time in history, and that searing image is stuck in a lot of folks’ brains.

I think you absolutely can logically and factually differentiate them. But I don’t know if that’s what’s going to happen in the court of public opinion.

John E. Jones III, President, Dickinson College

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Sharece Thrower, Vanderbilt University

Before his inauguration, Donald Trump promised to issue a total of 100 or so executive orders once he regained the presidency. These orders are expected to reset government policy on everything from immigration enforcement to diversity initiatives to environmental regulation. They also aim to undo much of Joe Biden’s presidential legacy.

Trump is not the first U.S. president to issue an executive order, and he certainly won’t be the last. My own research shows executive orders have been a mainstay in American politics – with limitations.

What is an executive order?

Though the Constitution plainly articulates familiar presidential tools like vetoes and appointments, the real executive power comes from reading between the lines.

Presidents have long interpreted the Constitution’s Article 2 clauses – like “the executive power shall be vested in a President” and “he shall take care that the laws be faithfully executed” – to give them total authority to enforce the law through the executive branch, by any means necessary.

One leading way they do that is through executive orders, which are presidential written directives to agencies on how to implement the law. The courts view them as legally valid unless they violate the Constitution or existing statutes.

Executive orders, like other unilateral actions, allow presidents to make policy outside of the regular lawmaking process.

This leaves Congress, notoriously polarized and gridlocked, to respond.

Thus, executive orders are unilateral actions that give presidents several advantages, allowing them to move first and act alone in policymaking.

How have they historically been used?

Every U.S. president has issued executive orders since they were first systematically cataloged in 1905.

In March of 2016, then-presidential candidate Donald Trump criticized President Obama’s use of executive orders.

“Executive orders sort of came about more recently. Nobody ever heard of an executive order. Then all of a sudden Obama – because he couldn’t get anybody to agree with him – he starts signing them like they’re butter,” Trump said. “So I want to do away with executive orders for the most part.”

Little in this statement is true.

Obama signed fewer orders than his predecessors – averaging 35 per year. Trump issued an average of 55 per year.

Against conventional wisdom, presidents have relied less on executive orders over time. Indeed, modern presidents used drastically fewer orders per year – an average of 59 – than their pre-World War II counterparts, who averaged 314.

Executive orders have been used for everything from routine federal workplace policies like ethics pledges to the controversial 2017 travel ban restricting entry into the United States.

They have been used to manage public lands, the economy, the civil service and federal contractors, and to respond to various crises such as the Iran hostage situation and the COVID-19 pandemic.

Presidents often use them to advance their biggest agenda items, by creating task forces or policy initiatives and directing rulemaking, the process for formally translating laws into codified policy.

Limitations in their use

Why don’t presidents always issue executive orders, a seemingly powerful policy device? Because they come with serious constraints.

First, executive orders may not be as unilateral as they seem. Drafting an order involves a time-consuming bargaining process with various agencies negotiating its content.

Second, if they are issued without proper legal authority, executive orders can be overturned by the courts – although that happens infrequently.

Trump’s 2017 travel ban faced several legal challenges before it was written in a way to satisfy the court. Many of his initial orders, on the other hand, didn’t face legal scrutiny because they simply requested agencies to work within their existing authority to change important policies like health care and immigration.

Congress is another barrier, as they give presidents the legal authority to make policy in a certain area. By withholding that authority, Congress can deter presidents from issuing executive orders on certain issues. If the president issues the order anyway, the courts can overturn it.

Legislators can also punish presidents for issuing executive orders they do not like by sabotaging their legislative agendas and nominees or defunding their programs.

Even a polarized Congress can find ways to sanction a president for an executive order they don’t like. For example, a committee can hold an oversight hearing or launch an investigation – both of which can decrease a president’s public approval rating.

Congresses of today are equipped to impose these constraints and they do so more often on ideologically opposed administrations. This is why scholars find modern presidents issue fewer executive orders under divided government, contrary to popular media narratives that present executive orders as a president’s way of circumventing Congress.

Finally, executive orders are not the last word in policy. They can be easily revoked.

New presidents often reverse previous orders, particularly those of political opponents. Biden, for instance, quickly revoked Trump’s directives that excluded undocumented immigrants from the U.S. Census.

All recent presidents have issued revocations, especially in their first year. They face barriers in doing so, however, including public opinion, Congress and legal limitations.

Regardless, executive orders are not as durable as laws or regulations.

Constraints on Trump

Some of Trump’s executive orders, particularly those focused on the economy, will require legislation since Congress holds the purse strings.

Though Trump inherits a Republican House and Senate, their majorities are marginal, and moderate party dissenters may frustrate his agenda. Even so, he will undoubtedly use all available legal authority to unilaterally transform his goals into government policy.

But then again, these directives may be undone by the courts – or by the next president with the stroke of a pen.

This is an updated version of a story originally published on January 26, 2021.

Sharece Thrower, Assistant Professor of Political Science, Vanderbilt University

This article is republished from The Conversation under a Creative Commons license. Read the original article.