This is a free-flow thought piece meant to ponder how some federal criminal law situations may play out in the next four years. Things will look differently with a new Donald Trump administration. The topic could be extraordinarily broad, so I’ll just cover some major points; this piece should not be considered remotely comprehensive.
We are about 2 weeks into the administration, and it’s already enormously busy. Roughly 50 executive orders and dozens of lawsuits have flooded headlines. Pardons for those involved in the January 6 insurrection were swift.
Immigration is the Focus, BUT NOT ALL
To no one’s surprise, I think we’ll see a resurgence of immigration-related cases, both civil and criminal.
What won’t happen with the current administration and Congress is immigration reform to provide an expanded path to citizenship. Frankly, that latter consideration doesn’t make it much different than previous iterations of Congress, nor presidential administrations. We are still stuck with an unworkable, unreasonable, and thoroughly ridiculous framework making citizenship such a limited possibility with such a long wait and such an expensive price, only a tiny percentage who want to become a citizen can succeed. Meanwhile, millions of non-citizens are here illegally with no path forward.
Deporting ELEVEN MILLION people, the estimate of how many undocumented immigrants are in the USA, present a project of truly immense proportions.
Simply identifying all those people will be tough. Locating them is another law enforcement challenge. Capturing them and detaining them will take vast resources. I expect extremely cheap, unsafe, and unsuitable accommodations to be provided at an exorbitant fee to the federal government. Since the mass deportation process wouldn’t be considered perpetual, government contractors will charge a major premium. Subsequent court proceedings will bottleneck mass deportation unless changes are made to streamline the process, and that’s exactly the kind of change I expect.
It’ll take much more legally trained personnel to process the flood. Much of this will happen in South Texas. The Department of Justice employs the immigration judges who will be doing the heavy lifting, and immigration laws have special status compared to other laws. I expect to see an increase in the number of such judges, as well as prosecutors.
Immigration laws are extremely flexible and can change more rapidly in some ways than other laws, but they also must take into consideration things like treaties and international obligations. So far, Trump has shown little to no regard for such considerations. Whether courts will uphold those laws (and others) will be a major theme going forward, at least to January 2029.
Laws, Personnel, and Logistics Will Change
Something different I expect is a creative and extensive use of many existing statutes to go after non-citizens illegally in the United States. I also fully expect to see an expansion of such laws, such as this one for driving while intoxicated cases: “Protect Our Communities From DUIs Act.”
Historically, DWI cases were not considered deportable offenses. Under this proposal, DWI/DUI would result in deportation (and denial of entry into the United States, otherwise known as inadmissibility). I fully expect bills like this to proliferate and/or be broader in scope. With a Republican Congress and administration, it will take only a little cooperation from the other side to push through significant changes very quickly. Whether they get such cooperation will also be a major trend impacting every change Trump wants to make legislatively.
Efforts to deport millions of immigrants are likely to be hamstrung by reports of cleaning house in federal agencies. The competing priority to push for reducing the size of federal government may lead to a shortage of personnel to implement the immigration policies sought by the current administration. Law enforcement agencies may be spared some of the worst of the disruption because of their favored status over non-law enforcement workers, but I expect an emphasis to be placed on retaining those people whose jobs put them in the thick of deportation efforts.
Considering specifically the DOJ’s current turmoil, there also may be a lag in full-on implementation of Trump’s policies. Based on news reports, Trump is trying to rid as many people from the DOJ as possible, presumably to give him an opportunity to replace them with people he prefers. Some of the push is to rid the DOJ of people not loyal to Trump, but some is due to trying to reduce the number of federal employees. After he purges as many as he can, those who replace and those who remain are likely to push forward with an emphasis on deportation.
Red states are more likely to get cozier than is traditional with federal agencies. I wrote that sentence before the latest from Texas Governor Greg Abbott: Texas National Guard personnel will assist the federal government with arresting immigrants. Of course, those personnel are not trained to do this kind of work, they did not “sign up” for that kind of work, and they are not meant to be used in that way. Legal challenges to using military like this are sure to follow.
The blurring of lines between military and law enforcement interacting with the general population is potentially dangerous. We should expect to see more pushing of similar boundaries and limitations. Trump has been explicit about using military in this project. How military “skills” translate into domestic policing give me and many others great concern. As a rule, military should have nothing to do with civilian populations.
During the first Trump administration, South Texas federal courts were extremely busy with illegal entry and related cases. That backlog has since eased. Everyone should expect the emphasis on illegal re-entry and similar cases to resume and cause delays. Whether enough prosecutors and judges will be available to create an assembly line of deportation will be an interesting and difficult challenge. I expect law enforcement to spend as much as they can and expand rapidly during this administration. Congress will likely boost their spending.
Immigration Isn’t the Only Thing
Considering the emphasis expected to be placed on removing non-citizens, I suspect other prosecution points of emphasis will suffer neglect.
My hope for marijuana decriminalization is further from becoming reality, I think. I don’t anticipate the current administration making the change. The Joe Biden administration gave the topic lip service, essentially, and only very late in his term did removing marijuana from the Drug Enforcement Administration’s Schedule 1 start. Hysteria and fearmongering put it there in the first place. Removing it from Schedule 1 would be a big step toward a freer country, but neither political party seems to be willing to take the step the vast majority of Americans of both parties want: decriminalization of marijuana.
Executions will undoubtedly increase, in my opinion. I anticipate the current Congress may actually consider adding more crimes to the list of those carrying the death penalty as a possible punishment.
For whatever reason, the Biden administration didn’t revive the National Commission on Forensic Science, and I can’t imagine it happening until 2029, at the earliest. The need for the commission is undeniable, based on prior and ongoing fraud amongst government “experts.”
“Tough on crime” initiatives will be implemented, as will putting the pedal to the metal on existing law enforcement projects. I presume that will be good for the business of criminal defense attorneys and law enforcement, but few others good for the economy.
Just like when the last administration started, I am still in favor of focusing law enforcement on the most serious and violent crimes. Minor crimes should be a low priority, but no one in power seems to make much of a distinction between serious crimes and minor crimes.
Most of my practice, as well as most cases, are in the state system. While federal policies don’t necessarily dictate how states will behave, feds certainly can influence states. There will obviously be some “winners” and some “losers” in this version of a Trump presidency. I expect business to be good for defense attorneys. Whatever happens in the future, I hope it’s more humane and compassionate than what appears to be on its way.
