President-elect Donald Trump confirmed reports that he plans to declare a legally dubious national emergency when he returns to power in January 2025, this time in order to carry out the “bloody” detention and mass deportation of millions of our undocumented neighbors, and likely some U.S. citizens as well.

In a November post on his Truth Social account, Trump issued his one-word confirmation in response to Tom Fitton, the president of the right-wing Judicial Watch outfit, who had written that Trump is “prepared to declare a national emergency and will use military assets” to carry out his violent mass deportation agenda. The order could come on day one of his administration, along with a slew of other extreme plans that enable mass deportation, including doing away with common-sense immigration enforcement priorities to make working moms and dads with no criminal record vulnerable to their bloody mass deportation agenda.

But does Trump actually have the legal authority to invoke a national emergency and use the U.S. military to carry out a mass family separation agenda that will hurt working Americans in the wallet and take a sledgehammer to U.S. industries and the economy? The experts say an order could unlock some aspects of his plan, but not all. But we have been here before and it is worth reexamining that history as a second declaration is on the horizon.

TRUMP’S FIRST EMERGENCY DECLARATION

Trump’s first national emergency declaration in February 2019 didn’t follow an actual national emergency either, but was rather the result of an executive branch tantrum after Congress, which constitutionally holds the power of the purse, said absolutely not to allocating billions in taxpayer dollars for his racist and useless border wall. “In late 2018-2019, the federal government shut down for 35 days because Congress — both Democrats and Republicans — refused to give Trump the money he demanded to build his wall,” America’s Voice Senior Research Director Zachary Mueller wrote at the time.

When his unpopular shutdown didn’t force federal lawmakers to acquiesce and hand over the billions he demanded, Trump declared a national emergency in order to bypass them and grab the federal funds anyway, raiding more than $3.5 billion from the Pentagon to build the racist vanity project that he said Mexico was going to pay for. Congress had explicitly approved these funds for specific military-related investments and infrastructure, including for the education of children of military families, improved roads, and ambulatory care centers. “In a rare show of unity, both the Senate and the House passed resolutions opposing Trump’s national emergency, forcing Trump to issue his first-ever veto in March,” Mueller continued. “Unfortunately, in July, the Supreme Court reversed decisions from lower courts and said that Trump could start using money obtained through the national emergency to start building his border wall.”

Trump will likely again seek to manufacture a national emergency, but this time around there are fewer checks in place to block what will be a far more costly and destructive agenda that will affect all Americans, no matter their legal immigration status. Unlike his previous emergency declaration, when the GOP-led Senate was forced to vote on the resolution to overturn the order due to the Democratic-led House, both chambers of Congress will be under GOP control come January 2025. And, while the first emergency declaration was confined to the southern border, this second emergency order is set to target every community across the nation. “There is a much bigger ploy the right is aiming toward,” America’s Voice Research Associate Yuna Oh wrote late last year. “Mass deportation is a vehicle used to bring authoritarian power and process to the US, turning the power of the federal government to the challenge of ethnic purges.”

BUT IS IT LEGAL?

The answer is far more complicated than a simple yes or no, according to some of the legal and constitutional experts. Michael Waldman, president and CEO of the Brennan Center for Justice at NYU School of Law, wrote in November that the organization’s experts “have mapped out the ways that presidents can wield little-used laws to unlock astonishingly broad powers. But even these emergency powers, which have inadequate restrictions, must be subject to the rule of law.”

And while laws like the Posse Comitatus Act generally prevent the use of the U.S. military against the general American populace, “other dusty and obscure laws provide exceptions to that rule.” Trump has already made perfectly clear he will not shy away from trying to get what he wants. As the Brennan Center noted, the first Trump administration in 2020 exploited loopholes in the Posse Comitatus Act to bring National Guard troops into Washington, D.C. “to police mostly peaceful protests against law enforcement brutality and racism,” including asking governors to deploy their own troops to the area “over the objections of DC’s mayor.” Chris Mirasola, Assistant Professor of Law at the University of Houston Law Center, has also written that existing framework and precedent could allow Trump to deploy the U.S. military to the southern border area “even without a declaration of national emergency.”

This is where our system of checks and balances is supposed to come into play. While Congress did pass a resolution in 2019 overturning Trump’s attack on the constitutional primacy of Congress with respect to appropriations, a sufficient number of Republicans did not join Democrats in order to overturn his veto of the resolution. In an unsigned, one-paragraph order, all five conservative justices on the Supreme Court at that time allowed Trump to proceed. Next year, Trump could expand that margin to six justices under any potential future litigation.

THE DANGERS OF A NATIONAL EMERGENCY

Trump’s push for another unfounded emergency declaration in order to carry out violent mass deportation and warning that he’ll seek to use the Insurrection Act against protests of his unpopular policies represents a critical threat to all Americans. This assertion of the conspiracy theory that immigrants constitute a literal invasion and as the “enemy from within” provides a rationalization for deploying the military on American streets targeting American homes, as Oh noted.

“While under the pretext of going after immigrants, Trump has been quite clear that his designs for directing the military against the American people are much more expansive. In a rally in Iowa early last year, he already promised to use the military to ‘get crime out of our cities’ and ‘replace local law enforcement in democratic cities to squelch protests.’” She continues: “There is a much bigger ploy the right is aiming toward. Mass deportation is a vehicle used to bring authoritarian power and process to the US, turning the power of the federal government to the challenge of ethnic purges.” And, as history and regimes from around the world have already shown us, once military forces are out in the streets in order to squelch dissent and other opposing views, they’re hard to get back out.

Tom Homan, Trump’s “border czar” who is being asked to lead the mass deportation effort (and is not subject to U.S. Senate confirmation), has also repeatedly cited existing U.S. code to threaten local Democratic officials with arrest if they impede the incoming administration’s agenda. Ordinary folks seeking to protect their undocumented loved ones and neighbors may not be exempt from persecution, either. The first Trump administration unsuccessfully sought the criminal conviction of a humanitarian aid worker under felony charges of harboring undocumented immigrants, a law “used almost exclusively against smugglers who trafficked migrants for profit,” The New Yorker reported in 2020. Homan’s recent comments present an ominous expansion that pursues non-profits and Democratic officials who help provide critical services to immigrant communities.

But it should also be remembered that Trump’s first national emergency was widely opposed by the American people, with thousands taking to the streets to oppose the move. And when the public is confronted with the details of Trump’s signature mass deportation promise – the detention and expulsion of workers who have lived and worked here for years – they are repelled. Trump is now reentering office purporting a mandate to pursue his agenda – an assertion to which The New Republic’s Greg Sargent noted,“ If media is too credulous about Trump’s claims of a mandate, he’ll feel more emboldened to pursue authoritarian extremes. Media has a real responsibility to get this right. Don’t blow it.”