The Trump administration is right to pursue a deportation campaign, but its performance has been at turns alarming and ineffective. Its removals of gang members under the Alien Enemies Act, and the accidental deportation of Salvadoran illegal immigrant Kilmar Abrego Garcia, have prompted unprecedented reaction from the courts—including, just yesterday, the declaration by a federal judge that the whole exercise is unlawful. And its expansive revocations of student visas, now scrapped, swept up people like Brigham Young University Ph.D. student Suguru Onda, who was temporarily sent home for exceeding his fishing license’s catch quota.
Why is the administration proceeding in this way? Some might see a malign motive, as in Adam Serwer’s claim that “the cruelty is the point.” But we think the administration is motivated by its accurate sense of a voter mandate to undo Joe Biden’s open-borders lawlessness. Trump and his advisors are looking to use all available levers—but in the process, they are expelling those who can most easily be removed rather than those who most deserve to go.
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That’s not a good situation, but neither is one in which millions of illegal-alien criminals and recent arrivals remain in the country. The way around this problem is for lawmakers to expand the immigration system’s capacity. Adding more immigration judges, detention facilities, and border barriers would help achieve the administration’s legitimate goals without running afoul of due process rights or prompting judicial resistance.
Trump’s deportation promises explain in large part why he was elected. Voters returned him to the White House in response to the 5–6 million illegal immigrants who entered the country on Biden’s watch. This surge overwhelmed local schools, hospitals, and social-safety nets. One recent paper, for example, found that recent arrivals accounted for about 60 percent of the increase in sheltered homelessness between 2022 and 2024. Manhattan Institute research projects that the cost of the crisis will exceed $1 trillion in our lifetime.
This explains why Trump’s immigration agenda has remained popular. Polls conducted at the end of March found that immigration is the president’s best issue, with roughly half the country approving of his handling of it, even as support for his economic agenda has fallen.
But the public may soon sour on Trump’s immigration policy, too, based on whom the administration deports. Pew polling found that 83 percent of Americans support deporting some or all illegal immigrants. But among that group, majority support existed only for removing those who commit crimes and those who arrived over the past four years. And Americans generally oppose deportations that contravene court orders.
Americans will also soon feel the indirect effects of deportations targeted beyond criminals and recent arrivals. News stories about European and Japanese tourists and students being removed from the country are already scaring off would-be tourists. The more Americans hear about sympathetic people being removed—like the teenage girls arrested and deported while backpacking in Hawaii—the sooner they will grow fed up with the administration on immigration.
Why, then, do immigration authorities keep scooping up other targets? And why is the administration pushing the boundaries of its authority by, for example, invoking the Alien Enemies Act, a law passed more than two centuries ago and used only three times before now, all during wartime?
One answer is that it’s relatively hard to remove illegal immigrants. Individuals targeted for deportation are entitled to hearings before an immigration court (really, administrative tribunals). That includes an appellate process, several forms of “relief from removal,” and the ability in some circumstances to appeal into the federal court system proper. The process can be stretched out by an immigration defense bar often ideologically opposed to all deportations and eager to exploit the immigration court system’s lack of staff and funding. As a result, the average case pending before immigration court is nearly two years old.
By contrast, it’s quite easy to let illegal immigrants into the country. Many of those who entered during the Biden administration, for example, did so by asserting a credible fear of persecution, thereby qualifying themselves for asylum proceedings before they can be deported. While somewhere between 67 percent and 85 percent of these claims will eventually be denied, until then the would-be asylees can work and in some cases receive benefits like Medicaid.
The result of this dynamic is the ever-growing backlog of immigration cases, at an immense cost to taxpayers. More than 3.6 million cases were pending in the system as of March. That’s up nearly threefold from the end of Trump’s last full year in office, and nearly eightfold from a decade ago.
Thus, the basic tension: the administration accurately believes it enjoys public support to remove lots of people from the country, but the constraints of the immigration system make that all but impossible. Vice President J. D. Vance has alluded to this problem, asking critics of the administration’s approach how, “with reasonable resource and administrative judge constraints,” they think it is possible “to deport at least a few million people per year?”
This conundrum is a classic example of the trade-off between process and results. Resource constraints mean that the system can resolve only a certain number of cases at a given level of due process.
The administration’s solution is to try to reduce the amount of process—by labeling immigrants as “alien enemies” and sending them to El Salvador before anyone can object; by targeting people for swift removal at airports and immigration biometric appointments where they are easy to arrest and detain; and by ending Temporary Protected Status and parole designations without following proper procedure. It has also pulled student visas of potentially thousands of people for nothing more than having parking tickets or getting fingerprinted by law enforcement—even as a victim. (Though the administration now seems to have reversed this latter policy.)
Mechanically, the reduced-process solution works. But it has serious constitutional implications and endangers public support for the president’s deportation agenda. Fortunately, there is a better way.
What if we reduce the resource constraints and expand the system’s capacity—its number of agents, bed spaces, judges, and other assets that determine how many people can be both admitted and removed? If lawmakers are wary of the administration’s attempt to work within the current capacity, they need to expand it.
A well-functioning immigration system would secure the border and ensure fast and efficient adjudication of immigration-law violations. Instead of noncitizens waiting years to have asylum claims heard—during which time they become rooted in communities and have U.S. citizen children—the system should detain them and resolve their claims in a matter of days or weeks.
Such enforcement is not just efficient but humane. It is inhumane and prohibitively expensive to detain someone for years while his case winds through the system; it is equally inhumane to release someone only to deport him years later.
How can we create such a system? Start with hiring. Today, we have about 700 immigration court judges. Ideally, that number should double, thereby clearing the backlog and swiftly processing new cases. U.S. Citizenship and Immigration Services (USCIS), which processes new arrivals, also needs to hire more employees to do “credible-fear” interviews at the border and process the growing affirmative asylum backlog.
The administration has taken the opposite tack, firing both immigration judges and USCIS employees. That’s a mistake. The fewer workers in the system, the longer the queue—and after a long enough wait, immigrants can no longer legally be detained and must be released into the interior. Dramatically increasing staffing would allow for new illegal immigrants to be detained and never released into the country, help Trump control who is hired, and reduce the incentive to make false asylum claims. Congress could even authorize the use of artificial intelligence to speed the process.
The U.S. immigration system also needs more space. U.S. Customs and Border Protection should have enough beds to detain all new illegal immigrants as they await their hearings. Today, however, there are just 12,000 beds, while last month alone saw nearly 30,000 encounters at U.S. borders. During most of the Biden administration, more than 200,000 people were encountered at the border every month.
Tech fixes can reduce the burden on the system. Many concerned about mass illegal immigration urge wider adoption of E-Verify, which lets employers check applicants’ immigration status. But the system has a confirmed error rate of at least 0.15 percent, meaning that one out of every 667 checks results in a lawfully authorized American or immigrant being flagged as an illegal worker. This may seem like a low error rate, but it would need to be lower still to justify its use by all employers. Mass outages and glitches compound the system’s problems. The same is true for the Systematic Alien Verification for Entitlements (SAVE) program, which enables state and local agencies to verify the legal status of immigrants applying for benefits like driver’s licenses and welfare.
Lastly, build better deterrents. The Trump administration has already outdone itself here, as border encounters have plummeted. It should continue the work of the first term to complete the physical barriers that Biden stopped alongside the southern border. That includes more water obstructions on the Rio Grande, following the lead of Texas over the past several years.
All these proposals require added spending, which means Congress will need to get involved. At the same time, because they involve more dollars, legislators could achieve them through budget reconciliation—meaning they don’t need Democratic votes to overcome the filibuster. And congressional Republicans should be eager to embrace them, as they would give President Trump the tools he needs to carry out his mandate.
Right now, he doesn’t have them.
Photo by Andrew Harnik/Getty Images
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