Napolitano: U.S. Deportation Push Raises “Profound” Constitutional Issues

In this new installment of our “Five Questions for Faculty” series, we revisit the escalating implications of large-scale immigration enforcement with Professor Janet Napolitano. Since our last conversation, the Trump administration has begun deportations under the Alien Enemies Act, floated plans to send U.S. citizens convicted of crimes to foreign prisons, and intensified fast-tracked removals—raising profound legal and constitutional questions. With her experience as Secretary of Homeland Security and a longtime advocate for civil rights and the rule of law, Napolitano offers essential insights into the ethical, logistical, and political risks of the administration’s evolving approach to immigration enforcement.

Since our last conversation, the Trump administration has begun deporting individuals to El Salvador using the Alien Enemies Act (AEA)—some without any criminal record. How does this shift the legal and ethical landscape, especially since AEA is designed for use during a condition of war or an invasion, and not  for widespread deportations?

In my view, the president is misinterpreting and misapplying the law—it was never intended to justify this kind of action, especially not in times of peace or without individualized due process. Lower courts seem to agree, as individual cases challenging the practice are making their way through the system. Ultimately, we need the Supreme Court to definitively say that this statute cannot be used for mass deportations. It will be a hard-fought battle—at least two justices seem inclined to believe the President has broad authority—but you still need a majority. I think the Court is paying close attention. In the Abrego Garcia matter, for example, the 1 a.m. order made clear that the President cannot act under that statute in the way he attempted and must afford each potential departure the opportunity to contest that be filled under the Administration’s “alien enemy,” designation.

You previously noted the logistical and legal challenges of mass deportation, particularly around due process. What’s your assessment of recent deportations that appear to have sidestepped these processes, including the case of Kilmar Abrego Garcia, who was mistakenly deported?

First, it’s important to clarify that Kilmar Abrego Garcia was not technically a legal resident—he had a Withholding of Removal order, which is a different legal status. That said, here’s my broader assessment: The president, through various actions at the border—including deploying the military and using the power of the bully pulpit —has effectively shifted public focus by claiming to have established 'order at the border.' The numbers are indeed lower, and from a purely operational standpoint, it appears more controlled than before.

Now, the public's focus has moved to interior deportations from the country's interior, and that’s where the problems lie. The administration’s approach has been inconsistent with established legal procedures and due process, and in many cases, it appears scattershot. This disorganized and legally questionable strategy is beginning to backfire—not just in the courts, but also in the court of public opinion. New polling ahead of the 100-day mark showed that the President is now underwater on immigration. That’s significant. A slight majority of Americans are already expressing concern and recognizing that something isn’t right.

We’re now seeing discussions from the administration about the possibility of deporting U.S. citizens convicted of crimes to prisons abroad, such as El Salvador’s CECOT facility. What are the constitutional implications of such a policy, and how should the public and legal institutions respond?

The deportation of U.S. citizens convicted of crimes to serve time in foreign prison raises profound constitutional concerns. Chief among them are the protections guaranteed by the Fifth and Eighth Amendments—due process and protection from cruel and unusual punishment. Those rights don’t automatically follow a person once they’re transferred abroad. In other words, once a U.S. citizen is outside the country, particularly under the custody of a foreign government, our Constitution doesn’t necessarily apply in the same way. That’s a major problem.

Such a policy would almost certainly face legal challenges, and I would expect both the courts and the public to push back strongly. It's not only constitutionally suspect—it also sets a dangerous precedent for how we treat our own citizens under the rule of law.

Given what we’re seeing now—deportations to high-security prisons, broad claims of gang affiliation based on tattoos or social media, and fast-tracked removals—how do you evaluate the risks of wrongful detention and the burden of proof in immigration enforcement?

Look—some of the individuals who were deported were gang members and had committed crimes. They had criminal records and, under the law, they are not entitled to remain in the country. But that’s not the full picture. When you look at the broader group of those being deported, about three-quarters have no criminal record in the U.S. or abroad that can be verified.

These individuals often had no opportunity to defend themselves—no real chance to say, ‘Yes, I have a tattoo, but that doesn’t make me a gang member.’ In many of these cases, there’s no proof that a tattoo signals gang affiliation at all. Gangs don’t use a standardized system for that, and the presumption alone should never be grounds for removal. That’s where due process comes in.

The argument that it’s easy to enter the U.S., so it should be just as easy to deport someone, is a false equivalency. Due process isn’t a loophole—it’s a constitutional protection. And if we start eroding it for one group, we risk weakening it for all of us.

You mentioned that any attempt to enforce large-scale deportation would likely face political pushback at the state and local level. In light of recent federal threats to cut funding for noncompliant cities and universities, do you think those institutions will continue to resist? What strategies could they adopt in response?

We’ve seen signs that institutions will continue to resist federal overreach, particularly when legal processes are ignored. A good example is the administration’s recent reversal on international student visas. Students suddenly discovered that their SEVIS records had been revoked—many without explanation. Lawsuits were filed, and courts ruled unanimously in favor of the students. The administration was forced to backtrack and is purportedly working to put in place actual criteria and a process. That shows that institutions can push back effectively, especially when legal norms are on their side.

Large-scale deportation raises similar challenges. First, the administration must identify who is actually subject to deportation. That requires a functioning administrative and judicial infrastructure—facilities, legal representation, and fair hearings. But the current system doesn’t have the funding or capacity to manage deportation at that scale. If the administration is serious about this effort, they would need to bring Congress into the fold to change the law and appropriate more funding. So far, they haven’t done that. They're treating it purely as an executive matter, and that limits their reach.

The other point I want to emphasize is that the politics of interior enforcement are different. Now that the border is perceived as more secure, attention is shifting to what the administration is doing inside the country—and that’s prompting a different kind of public reaction.

We’re also likely to see related constitutional questions arise, such as whether a president can end birthright citizenship under the 14th Amendment, and whether national injunctions—like those issued by a district court in Washington state—can bind the executive branch nationwide. The Supreme Court is expected to take up both of these issues.