Timothy Snyder, a Yale Professor (here and here) wrote a Substack posting titled “deportation action as regime change.”   Executive action to bar entry into the country and to deport persons has a specially resonant role for aspiring autocrats in a democratic society.  I will explain.

Immigration laws, extremely complicated and hard for an outsider to penetrate, can include provisions that give the head of state extraordinary discretion to respond to national security emergencies for which the head of state has exclusive powers to declare. In the past ten days, Trump as invoked so such provisions: (1) the Alien Enemies Act (with regards to Tren de Aragua), and  (2)Section 237(a)(4)(C)(i) of the Immigration and Nationality Act (with regard to Mahmoud Kahlil). He has also invoked (3) the Alien Registration Act (this has not burst into flames as yet).

There are several features of the first two that are attractive to the Trump Administration. First, they brush up against constitutional rights to due process – Trump is using these actions to create a constitutional confrontation that he has been seeking. These are in effect test cases for a broader assault on the judiciary seen (correctly) as protecting these rights.  Contempt of court is a deliberate feature of his challenge.

Second, deportation is in Snyder’s words great theater. “This [Tren de Aragua] deportation was planned as a political spectacle. The deportees were carefully chosen, as was the language used to describe them. The messaging was obviously coordinated in advance. And the entire humiliating procedure was carried out before cameras that were already in place. The videos that are being distributed are not some assemblage of footage caught haphazardly by cell phones. They are the result of fixed cameras, set in place in advance, with camera operators awaiting the action. The result is propaganda film worthy of the 1930s…”

The Tren de Aragua case is a very mild version of the Reichstag fire.

Third, as Presidents Obama and Biden practiced during their tenure, executive action on immigration is an especially accessible means for a president to arrogate to themselves Congressional functions.  

In summary, in these two actions in recent days, Trump has dramatically thrown down the gauntlet to the judicial independence and has further neutered Congress’ role in immigration.  Much easier to do this with immigration than with, for example, climate policy or national defence.