The Trump administration’s recent immigration policies expand the authority of federal immigration officials, such as Immigration and Customs Enforcement (ICE) officials, allowing them to enter previously protected locations such as schools, churches and hospitals. Additionally, an executive order issued on Jan. 20 seeks to reinterpret birthright citizenship by stating that children born on U.S. soil after Feb. 19 to parents unlawfully present or with temporary lawful status will not be recognized as U.S. citizens. This executive order has been temporarily blocked by a federal judge and faces several legal challenges. For colleges such as Carleton, the consideration pertains to how these policies and possible future immigration policies would impact higher education and create uncertainty for undocumented and international students.

The Trump administration’s recent immigration policies expand the authority of federal immigration officials, such as Immigration and Customs Enforcement (ICE) officials, allowing them to enter previously protected locations such as schools, churches and hospitals. Additionally, an executive order issued on Jan. 20 seeks to reinterpret birthright citizenship by stating that children born on U.S. soil after Feb. 19 to parents unlawfully present or with temporary lawful status will not be recognized as U.S. citizens. This executive order has been temporarily blocked by a federal judge and faces several legal challenges. For colleges such as Carleton, the consideration pertains to how these policies and possible future immigration policies would impact higher education and create uncertainty for undocumented and international students.

Impact on Deferred Action for Childhood Arrival (DACA) Students and Undocumented Students

“There’s been ongoing legal fights about whether or not [DACA students] would be allowed to stay in the country and have a college degree,”  said Professor of Political Science and President Emeritus Steven Poskanzer, who specializes in higher-education law.

“That’s one population that certainly is at graver risk,” Poskanzer said. “Another related population that would be at greater risk would be someone who is also here illegally, but that hasn’t registered for DACA.”  According to Poskanzer, many DACA-qualified students have been able to obtain their degrees over the years, but it is unclear how many students are still eligible.

Benjamin Casper ’90, American Civil Liberties Union attorney and immigration law expert, called DACA a “wild card.” In an on-campus talk on Jan. 17, Casper explained that during the first Trump administration, attempts to end DACA were struck down by the Supreme Court on technical grounds. He said that, should Trump relitigate DACA, it is likely to be rescinded. According to Casper, Trump may alternatively grant legal statuses to DACA recipients to leverage wider support for his deportation expansion project. 

“If they actually write the policies and take away DACA, competently, [it] probably would be upheld by the Supreme Court and other courts,” said Casper. As of Jan. 28, Trump has not taken any action towards DACA. 

Casper is also concerned about the possibility of the Trump administration progressing a number of efforts to restrict federal funding for public and private educational institutions. He explained that the federal government can require full compliance and information sharing about the student populations on certain campuses as the requirement to access these funds. 

“Federal funding of higher education potentially opens the door to all kinds of new regulations,” said Poskanzer. “Would the government say that if you accept federal money, you need to allow immigration officials to come on your campus? They could do that, [but] they have not done that right now.”

If federal funding requires full compliance and information sharing about student populations on certain campuses, undocumented students are likely at graver risk. According to an article in the Chronicle of Higher Education, there are about 400,000 college students who are undocumented. Some colleges have released guidelines about where ICE can and cannot directly access and recommendations for when students or staff should contact campus security; other colleges emphasized that law enforcement must comply with due process. 

International Students and Travel Restrictions

According to Poskanzer, the travel ban on Muslim-majority countries is likely to come back. There will also be more aggressive language about denying immigration and visas on the basis of national security concerns. This likely includes “interpretations of the law to claim that anybody has any kind of links to terrorist organizations,” according to Poskanzer. He further estimates that these changes are likely to affect a great number of people, including international students.  

“Trump’s administration has been vocal recently about supporting H-1B and F-1 students in conversations, identifying them as visa programs that allow for intellectual talent and skill sharing across cultures,” Liz Cody, director of international student life and intercultural & international life, wrote over email. “From the executive orders issued as of today, Jan. 24, there have not been any orders implementing changes to these programs.” 

 Cody noted that visa processing times and work permit approvals were delayed during Trump’s previous term, raising concerns that these delays could return. In particular, increased scrutiny of Optional Practical Training (OPT) for F-1 students could impact international graduates’ ability to receive work authorization and remain in the U.S. after completing their studies.

“Starting in 2017, the prior Trump administration issued various travel bans for citizens from Chad, Eritrea, Iran, Iraq, Kyrgyzstan, Libya, Myanmar, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela and Yemen,” said Cody. “In most cases, bans affected travel and processing for immigrant and refugee visas, but mostly did not affect F-1 or J-1 visa issuance and travel. The Trump administration also banned entry for F-1 and J-1 visa holders from China affiliated with the military-civil fusion strategy, which remains in place today.” 

“During his previous term, we saw increases in processing times for visa applications, delays in visa appointment availability, and increased processing time for OPT applications (work permits),” said Cody. 

Birthright Citizenship and Its Legal Challenges

According to an article from National Public Radio, Trump wants to reinterpret the 14th Amendment phrase “subject to the jurisdiction thereof” to mean that the federal government will not recognize birthright citizenship for children born in the U.S. to parents who lack legal status. Trump’s attempt to end birthright citizenship has faced numerous legal challenges. As of Jan. 23, the executive order to end birthright citizenship will be blocked for 14 days after a Federal District Court judge declared it unconstitutional. 

Back in Jan. 16, Casper had called the move to end birthright citizenship a “pretty radical legal proposition” and predicted, “the chances of that actually succeeding when it is challenging courts is extremely low.”

“But that’s not the point,” Casper stresses. “The point it is being raised is because it’s divisive, and it will create a ton of fear and a ton of doubt and a ton of confusion. That really is the purpose of bringing that challenge.” 

Furthermore, Casper anticipates discussions that compare the challenge of birthright citizenship with the travel ban on Muslim-majority countries. While the Supreme Court upheld the travel ban, Casper said that birthright citizenship is in a different situation; birthright citizenship is a Constitutional question, while the litigation over Trump’s travel ban concerns executive powers. 

“The Muslim ban litigation had everything to do with the idea of executive power and how much power the executive [branch] have over the enforcement of immigration policy in relation to the courts,” Casper said. Poskanzer echoed Casper’s sentiment.

“It is unlikely that an outright ban on birthplace citizenship from an executive order will stand up,” Poskanzer said. He referred to the language of the 14th Amendment, finding that the plain text supports birthright citizenship. 

“As opposed to the broad power that presidents have over foreign policy or that Congress has over immigration, this is a much, much heavier legal lift,” he said. 

Poskanzer stressed that the current administration has no reasonable pathway to redefine birthright citizenship. The only way would be to amend the Constitution, which he said would not only take a long time, but the current Supreme Court is also unlikely to support this interpretation. 

“The current Supreme Court has more conservative justices who typically say that they like to understand the Constitution based on its text [and] the original intention of the people that wrote the Constitution,” said Poskanzer. “I think that the plain text of the Constitution is a very strong defense of birthright citizenship. You would have to have a court that has historically been very text-oriented now start to ignore the text of the Constitution.” 

The Future of Immigration Enforcement

Though both Poskanzer and Casper stressed that immigration law is federal law, Casper contends that different states will differ on how they will cooperate with federal enforcement of various immigration policies. 

“There will be a lot of difference between states like Texas [and] states around Minnesota,  including North and South Dakota, where the state governments will be cooperative to a great extent with the mobilization of this expansion of interior enforcement,” he said.

 Casper said that the Trump administration will likely invoke the president’s powers over the objections of governors of states such as California and perhaps Minnesota to use National Guard troops, not in direct law enforcement activities, but in creating the infrastructure for more detention centers. Another area of uncertainty is whether Congress will pass legislation that would compel states to cooperate.

 “That is a big question I have,” Casper said. “These would be constitutional fights if they happen between states that do not want to cooperate, do not want to deputize local law enforcement to the jobs of immigration federal immigration enforcement.”

The passing of the Laken-Riley Act raises more questions. “There is also a new bill in Congress called the Laken-Riley Act,” Cody wrote over email. “The bill’s Section 3c provides state attorneys general the authority to sue the State Department to stop the issuance of nonimmigrant and immigrant visas to so-called recalcitrant countries (defined as those who are slow to or do not accept their nationals who the United States seeks to deport). According to a 2020 Congressional Research Service report, 13 countries were on this list: Bhutan, Burundi, Cambodia, China, Cuba, Eritrea, Hong Kong, India, Iran, Iraq, Laos, Pakistan and Russia.” 

“This would not impact current students but could have an impact in some states,” Cody said. “This means that for the first time, states, instead of the federal government Department of State, could make determinations about whether or not citizens of particular countries should be issued U.S. visas.” 

 What now

Casper said that the core of the enforcement expansion of undocumented immigrant detention is how people will react to family separation. According to him, in the large majority of cases, undocumented immigrants are parts of mixed-status families. Moreover, there is already an extreme reaction to the family separation at the border. 

“I think it’s going to be more impactful at a gut level for more people across the country,” he said. “I do think that there will be a natural revulsion to an impact on families because it’s going to be difficult.” 

“I think the policies are going to reach more people and affect more families and more individuals and communities in ways that are going to make it evident what the human cost of it is,” Casper concluded. “So I am hopeful for where we’re going to land, even though it’s going to be a very, very hard and difficult road.”

Impact on Deferred Action for Childhood Arrival (DACA) Students and Undocumented Students

“There’s been ongoing legal fights about whether or not [DACA students] would be allowed to stay in the country and have a college degree,”  said Professor of Political Science and President Emeritus Steven Poskanzer, who specializes in higher-education law.

“That’s one population that certainly is at graver risk,” Poskanzer said. “Another related population that would be at greater risk would be someone who is also here illegally, but that hasn’t registered for DACA.”  According to Poskanzer, many DACA-qualified students have been able to obtain their degrees over the years, but it is unclear how many students are still eligible.

Benjamin Casper ’90, American Civil Liberties Union attorney and immigration law expert, called DACA a “wild card.” In an on-campus talk on Jan. 17, Casper explained that during the first Trump administration, attempts to end DACA were struck down by the Supreme Court on technical grounds. He said that, should Trump relitigate DACA, it is likely to be rescinded. According to Casper, Trump may alternatively grant legal statuses to DACA recipients to leverage wider support for his deportation expansion project. 

“If they actually write the policies and take away DACA, competently, [it] probably would be upheld by the Supreme Court and other courts,” said Casper. As of Jan. 28, Trump has not taken any action towards DACA. 

Casper is also concerned about the possibility of the Trump administration progressing a number of efforts to restrict federal funding for public and private educational institutions. He explained that the federal government can require full compliance and information sharing about the student populations on certain campuses as the requirement to access these funds. 

“Federal funding of higher education potentially opens the door to all kinds of new regulations,” said Poskanzer. “Would the government say that if you accept federal money, you need to allow immigration officials to come on your campus? They could do that, [but] they have not done that right now.”

If federal funding requires full compliance and information sharing about student populations on certain campuses, undocumented students are likely at graver risk. According to an article in the Chronicle of Higher Education, there are about 400,000 college students who are undocumented. Some colleges have released guidelines about where ICE can and cannot directly access and recommendations for when students or staff should contact campus security; other colleges emphasized that law enforcement must comply with due process. 

International Students and Travel Restrictions

According to Poskanzer, the travel ban on Muslim-majority countries is likely to come back. There will also be more aggressive language about denying immigration and visas on the basis of national security concerns. This likely includes “interpretations of the law to claim that anybody has any kind of links to terrorist organizations,” according to Poskanzer. He further estimates that these changes are likely to affect a great number of people, including international students.  

“Trump’s administration has been vocal recently about supporting H-1B and F-1 students in conversations, identifying them as visa programs that allow for intellectual talent and skill sharing across cultures,” Liz Cody, director of international student life and intercultural & international life, wrote over email. “From the executive orders issued as of today, Jan. 24, there have not been any orders implementing changes to these programs.” 

 Cody noted that visa processing times and work permit approvals were delayed during Trump’s previous term, raising concerns that these delays could return. In particular, increased scrutiny of Optional Practical Training (OPT) for F-1 students could impact international graduates’ ability to receive work authorization and remain in the U.S. after completing their studies.

“Starting in 2017, the prior Trump administration issued various travel bans for citizens from Chad, Eritrea, Iran, Iraq, Kyrgyzstan, Libya, Myanmar, Nigeria, North Korea, Somalia, Sudan, Syria, Tanzania, Venezuela and Yemen,” said Cody. “In most cases, bans affected travel and processing for immigrant and refugee visas, but mostly did not affect F-1 or J-1 visa issuance and travel. The Trump administration also banned entry for F-1 and J-1 visa holders from China affiliated with the military-civil fusion strategy, which remains in place today.” 

“During his previous term, we saw increases in processing times for visa applications, delays in visa appointment availability, and increased processing time for OPT applications (work permits),” said Cody. 

Birthright Citizenship and Its Legal Challenges

According to an article from National Public Radio, Trump wants to reinterpret the 14th Amendment phrase “subject to the jurisdiction thereof” to mean that the federal government will not recognize birthright citizenship for children born in the U.S. to parents who lack legal status. Trump’s attempt to end birthright citizenship has faced numerous legal challenges. As of Jan. 23, the executive order to end birthright citizenship will be blocked for 14 days after a Federal District Court judge declared it unconstitutional. 

Back in Jan. 16, Casper had called the move to end birthright citizenship a “pretty radical legal proposition” and predicted, “the chances of that actually succeeding when it is challenging courts is extremely low.”

“But that’s not the point,” Casper stresses. “The point it is being raised is because it’s divisive, and it will create a ton of fear and a ton of doubt and a ton of confusion. That really is the purpose of bringing that challenge.” 

Furthermore, Casper anticipates discussions that compare the challenge of birthright citizenship with the travel ban on Muslim-majority countries. While the Supreme Court upheld the travel ban, Casper said that birthright citizenship is in a different situation; birthright citizenship is a Constitutional question, while the litigation over Trump’s travel ban concerns executive powers. 

“The Muslim ban litigation had everything to do with the idea of executive power and how much power the executive [branch] have over the enforcement of immigration policy in relation to the courts,” Casper said. Poskanzer echoed Casper’s sentiment.

“It is unlikely that an outright ban on birthplace citizenship from an executive order will stand up,” Poskanzer said. He referred to the language of the 14th Amendment, finding that the plain text supports birthright citizenship. 

“As opposed to the broad power that presidents have over foreign policy or that Congress has over immigration, this is a much, much heavier legal lift,” he said. 

Poskanzer stressed that the current administration has no reasonable pathway to redefine birthright citizenship. The only way would be to amend the Constitution, which he said would not only take a long time, but the current Supreme Court is also unlikely to support this interpretation. 

“The current Supreme Court has more conservative justices who typically say that they like to understand the Constitution based on its text [and] the original intention of the people that wrote the Constitution,” said Poskanzer. “I think that the plain text of the Constitution is a very strong defense of birthright citizenship. You would have to have a court that has historically been very text-oriented now start to ignore the text of the Constitution.” 

The Future of Immigration Enforcement

Though both Poskanzer and Casper stressed that immigration law is federal law, Casper contends that different states will differ on how they will cooperate with federal enforcement of various immigration policies. 

“There will be a lot of difference between states like Texas [and] states around Minnesota,  including North and South Dakota, where the state governments will be cooperative to a great extent with the mobilization of this expansion of interior enforcement,” he said.

 Casper said that the Trump administration will likely invoke the president’s powers over the objections of governors of states such as California and perhaps Minnesota to use National Guard troops, not in direct law enforcement activities, but in creating the infrastructure for more detention centers. Another area of uncertainty is whether Congress will pass legislation that would compel states to cooperate.

 “That is a big question I have,” Casper said. “These would be constitutional fights if they happen between states that do not want to cooperate, do not want to deputize local law enforcement to the jobs of immigration federal immigration enforcement.”

The passing of the Laken-Riley Act raises more questions. “There is also a new bill in Congress called the Laken-Riley Act,” Cody wrote over email. “The bill’s Section 3c provides state attorneys general the authority to sue the State Department to stop the issuance of nonimmigrant and immigrant visas to so-called recalcitrant countries (defined as those who are slow to or do not accept their nationals who the United States seeks to deport). According to a 2020 Congressional Research Service report, 13 countries were on this list: Bhutan, Burundi, Cambodia, China, Cuba, Eritrea, Hong Kong, India, Iran, Iraq, Laos, Pakistan and Russia.” 

“This would not impact current students but could have an impact in some states,” Cody said. “This means that for the first time, states, instead of the federal government Department of State, could make determinations about whether or not citizens of particular countries should be issued U.S. visas.” 

What now

Casper said that the core of the enforcement expansion of undocumented immigrant detention is how people will react to family separation. According to him, in the large majority of cases, undocumented immigrants are parts of mixed-status families. Moreover, there is already an extreme reaction to the family separation at the border. 

“I think it’s going to be more impactful at a gut level for more people across the country,” he said. “I do think that there will be a natural revulsion to an impact on families because it’s going to be difficult.” 

“I think the policies are going to reach more people and affect more families and more individuals and communities in ways that are going to make it evident what the human cost of it is,” Casper concluded. “So I am hopeful for where we’re going to land, even though it’s going to be a very, very hard and difficult road.”