Should the federal government use emergency or national security authorities to address illegal immigration?

Background

The use of emergency and national security authorities to address illegal immigration has become one of the most consequential and contested areas of federal policy. On January 20, 2025, President Trump declared a national emergency at the southern border under the National Emergencies Act, invoking what the administration called an "invasion" to unlock military resources, redirect Defense Department funds toward border barrier construction, and deploy thousands of active-duty troops to the southern border. The administration also invoked a 1996 mass-influx provision for the first time, authorizing the Department of Homeland Security to deputize local law enforcement to conduct immigration enforcement nationwide. According to the Conference Board, border encounters dropped 79 percent year over year by January 2026, and ICE custody numbers rose roughly 84 percent. In April 2026, the U.S. Court of Appeals for the D.C. Circuit upheld a lower court ruling that the president's invasion proclamation was illegal, finding that existing immigration law does not permit the executive to create summary removal procedures of his own making. The administration has vowed to challenge that ruling.

Supporters argue that emergency and national security powers are necessary tools when existing immigration systems are overwhelmed. They point to the designation of cartels as foreign terrorist organizations, the rise in terrorist watchlist encounters at the border in prior years, and the need for rapid federal action to protect public safety. The Department of Homeland Security has framed these authorities as essential to dismantling smuggling networks and removing individuals who pose serious threats. Opponents, including organizations like the ACLU, the Brennan Center for Justice, and legal scholars writing in Lawfare, argue that labeling immigration a permanent emergency concentrates power in the executive branch, circumvents Congress's constitutional authority over both immigration law and the federal budget, and erodes due process protections. The National Immigration Forum's Council on National Security and Immigration, which includes former homeland security officials, has argued that an overly broad security framework actually undermines national security by diverting resources from genuine threats. A 2026 PRRI survey found that only 36 percent of Americans favor increased ICE arrest and deportation funding, though support varies sharply by party.

The stakes of this debate extend well beyond border policy. At issue is the balance of power between the executive and legislative branches, the scope of presidential emergency authority, and the civil liberties of both immigrants and U.S. citizens. According to the Catholic Legal Immigration Network, military personnel are now participating in immigration enforcement, transit monitoring, and other traditionally civilian roles, raising questions about the long-standing boundary between military and civilian authority. Employers in health care, agriculture, construction, and hospitality have raised concerns about labor shortages tied to reduced immigration. Multiple cases testing the limits of emergency powers, including the use of the Alien Enemies Act, are working their way toward the Supreme Court. How courts and Congress ultimately resolve these questions will shape the scope of presidential authority and immigration enforcement for years to come.