Immigration judges are typically career civil employees who are appointed by the Attorney General to serve as administrative judges. Assigning JAGs these positions may well violate the Posse Comitatus Act, a key law that prohibits the military from “executing” civilian laws. Besides being against the law, the appointments are a bad idea. They breach the foundational norm separating military authority from civilian governance. It would be as if active-duty military officers were assigned to serve as tax court judges or administrative law judges, proposals that would immediately raise constitutional concerns.

The plan to reassign hundreds of JAGs also removes them from the military where they are needed to provide critical legal advice, including on the deployment of the National Guard to U.S. cities and the use of lethal force, including in the Caribbean. Despite the Trump administration’s efforts to sideline military lawyers (including firing the top uniformed JAGs in February), the counsel provided by JAGs on complex legal matters is more important than ever. Congress, which has the constitutional authority to make rules for the “Government and Regulation of land and naval forces” should closely scrutinize any effort to hollow out the JAG Corps.

Two Plans to Turn Military Lawyers Into Immigration Judges

The administration has floated two options for reassigning JAGs. One plan was announced by Secretary of Defense Pete Hegseth and involved the use of JAGs serving as a federal military force. Separately, Florida Governor Ron DeSantis announced a plan involving a small number of Florida National Guard JAGs. By regulation, temporary immigration judges are subject to the management and oversight of the chief immigration judge at the DOJ. Still, it is unclear if these newly assigned JAGs will act in an entirely civilian capacity or if they will continue to function under their usual military chain of command. Although many details remain unclear, we have an understanding of the broad outlines of the potential plans, along with the significant concerns they raise about the legality of the JAGs’ assignments and anticipated work.

Plan #1: Assigning Active-Duty and Reserve JAGs as Immigration Judges

The first option, which has already begun, is to reassign active-duty and reserve JAGs to work as immigration judges. News of the plan broke in early September, just days after the DOJ dropped the requirement that temporary immigration judges be either administrative law judges or retired DOJ immigration adjudicators. Now, the DOJ allows “any lawyer” to serve as an immigration judge. This regulatory change skirted traditional notice-and-comment processes that would call for transparency and an opportunity for contemporaneous public comment. Instead, the new rule relied upon comments solicited 11 years ago during the Obama administration. At that time, the DOJ implemented a rule change permitting former immigration law judges and administrative law judges to serve as temporary immigration judges for renewable six-month terms. The Trump DOJ initiative goes much further, short-circuiting the administrative rulemaking process and paving the way for JAGs to be detailed as immigration judges.

This change in defining who is eligible to serve as an immigration judge is not a routine personnel revision, and, therefore, it should be closely scrutinized and subject to traditional notice and comment procedures. After all, allowing any lawyer–including JAGs–to serve as a temporary immigration judge, regardless of their qualifications, affects the due process rights of immigrants appearing before the court, who are no longer assured that the judges hearing their cases are versed in the complex legal specialty of immigration law. Further, although JAGs can serve as military judges presiding over courts-martial, they generally lack immigration law expertise and rarely have adjudicated civilian matters.

Plan #2: Assigning National Guard Members as Immigration Judges

The second reported plan involves calling up National Guard JAGs to work as immigration judges. In July, for example, President Donald Trump and DeSantis (himself a former Navy JAG) reportedly agreed to assign Florida National Guard lawyers to do just that. According to Florida’s Immigration Enforcement plan, these assignments would make only a small contribution to the effort to detail hundreds of JAGs as immigration judges: just nine field-grade National Guard members are suitable for service as immigration judges. In addition, to serve as immigration judges, Guard members would have to be activated and federalized under the command and control of the president, but the only way to do so is under 10 U.S.C. §12301(d), which requires the consent of the Guard member to be activated.

Under either plan, there are significant questions about the legality of the appointments, including whether they violate long-standing laws prohibiting JAGs from serving as civil law enforcement.

Violating the Posse Comitatus Act’s Plain Meaning

The appointment of JAGs to serve as immigration judges violates the Posse Comitatus Act (PCA). A “posse comitatus” is a Latin term used in British and American law to mean a group of people a sheriff mobilizes to suppress lawlessness. The PCA is a criminal law that dates to 1878, and bars any part of the federal military forces from being used as a posse comitatus, i.e., participating in civilian law enforcement. The statute, in full, states:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

Under the PCA, implied authority is not enough; the authority to execute the laws must be “expressly authorized by the Constitution or Act of Congress.” The JAG assignments fall within the PCA ban because immigration judges execute domestic law, and there is no express authorization for military lawyers to serve as immigration judges.

Despite its importance, the term “execute the laws” itself is not defined in statute and remains ambiguous. No case law squarely addresses whether immigration judges adjudicating immigration cases are “executing the law.” Nevertheless, even under a narrow reading of that term, JAGs serving as immigration judges would clearly “execute the law.”

Several decades ago, in United States v. Yunis, the Court of Appeals for the District of Columbia endorsed a leading jurisprudential test for analyzing PCA violations: the PCA prohibits activities that “subject civilians to the exercise of military power that is regulatory, proscriptive, or compulsory in nature.” The lower court in Yunis provided a more detailed analysis of those terms that the appeals court effectively ratified, defining a regulatory power as one which “controls or directs,” a proscriptive power as one that “prohibits or condemns,” and a compulsory force as one which “exerts some coercive force.” As a result, all of those military actions are prohibited under the PCA as applied to civilians.

Although immigration judges are, by regulation, impartial arbiters of the law, both temporary and permanent immigration judges carry out activities that meet the Yunis standard. Immigration judges decide whether an immigrant has the legal right to remain in the United States or will be deported, and whether to keep someone in custody or release them from detention. While the JAGs serving as immigration judges may be in civilian attire and judicial robes, they are issuing rulings that effectively control the immigrant’s future in the United States, prohibit the immigrant from being released from custody, and coerce the immigrant through deportation orders. Immigration judges don’t just apply the law—they execute it. When a judge orders deportation, that’s not interpretation, it’s compulsion backed by state power. Under the Yunis precedent, that’s precisely what the PCA prohibits.

In August of 1986, then-Deputy Assistant Attorney General of the Office of Legal Counsel (OLC) Samuel Alito analyzed a proposal to assign Army JAGs to serve as Special U.S. Attorneys (SAUSAs) in the DOJ. In considering whether the assignments violated the PCA, Alito broadly interpreted “execution” of the law to encompass “the litigation of civil and criminal cases.” Immigration adjudication and decision-making¾which result in restrictions on liberty and the enforcement of applicable immigration laws that could lead to expulsion from the nation¾fall within this conception. In fact, Alito assumed without further analysis that the litigation of civil and criminal cases constituted “execution” of the law within the meaning of the PCA.

As Alito put it, the PCA was “intended to prevent persons subject to military law and discipline from directing commands to ordinary citizens.” Military lawyers serving as temporary immigration judges would have the ability to wield significant control over the lives of civilians, a power the PCA does not permit.

No Express Authorization

The only exception to the PCA’s prohibition on soldiers serving as civilian law enforcement is where the Constitution or Congress has “expressly authorized” them to do so. The Constitution does not include any express authorization that allows military officers to serve in civilian roles. There are many statutory exceptions to the PCA, but none expressly authorize the use of military lawyers as immigration judges in the DOJ.

The term “expressly authorized” is significant. Its inclusion was debated and discussed for several years before the PCA’s passage in 1878. The House Manager at the time said that inclusion of the word “expressly” was critical to prevent the use of the military where authority is only implied. During the back and forth between the Senate and the House on the PCA’s text, “expressly” was added in the final version, thus “restoring to this bill the principle for which we have contended so long, and which is so vital to secure the rights and liberties of the people.”

The Pentagon itself does not identify any exceptions that would permit assignment of JAGs as immigration judges. Its 2019 instruction governing interpretation of the PCA, titled “Defense Support of Civilian Law Enforcement Agencies,” lists 20 specific exceptions—including assignments as specific as the enforcement of fishery laws—but does not include any exceptions that even arguably include immigration adjudications. Even the so-called assignment statutes—10 USC §§ 806 and 973(b)(2)(B) – which allow military officers to support certain civil functions — are not considered by the military to be exceptions to the PCA. To be sure, the Trump administration could change how it interprets existing statutes and regulations, but such an interpretation is reviewable under the Administrative Procedure Act, and the court can set aside arbitrary or capricious changes that lack a reasoned explanation.

The omission of any reference to assignments to serve as immigration judges is evidence that the Deapartment of Defense does not consider such assignments to be exceptions to the PCA. If DOD doesn’t believe these are express exceptions, why should courts? Indeed, a court reviewing DOD’s newfound interpretation of a PCA exception is likely to apply administrative law principles to scrutinize this 180-degree interpretive turn, reviewing “the validity of [DOD’s] reasoning” and identifying its lack of “consistency with earlier and later pronouncements.”

Of note, in his 1986 OLC memo, Alito did not address whether the Title 10 provisions were an express exception to the PCA, but noted that the legality of using JAGs to carry out certain litigating functions at DOJ depended on certain factual circumstances. According to Alito, serious questions would arise under the PCA if, while assigned to DOJ, the military lawyers functioned under their usual military chain of command, were assigned on a part-time basis, or performed civilian functions along with their regularly assigned military duties (by working at a military installation, for example). Alito wrote that to minimize the risk of contravening the PCA, “military lawyers who are not functioning in an entirely civilian environment should not be used to perform any prosecutorial function that involves direct contact with civilians in a law enforcement context, such as the interrogation of witnesses or a personal appearance in court.”

In sum, the term “expressly” was fought over and included in the PCA’s text as a means to combat future attempts to allow the military to perform civil functions with only implied authority. The Pentagon has never interpreted the assignment statutes as express authorization to circumvent PCA restrictions, nor has it identified any other applicable exception.

To be sure, the Administration may attempt to avoid PCA prohibitions by detailing individual military members on a full-time basis to the Department of Justice under the supervision of civilian personnel—factors pointed out by Alito as a way to potentially sidestep the PCA in the context of assigning JAGs as Special Assistant U.S. Attorneys (SAUSAs). These factors were also highlighted in a just-released OLC memo providing legal cover for the detail.  But Alito made clear that such details should be scrutinized to determine whether the JAGs are truly independent from their military command, and they would have to be funded by DOJ – a significant constraint because the July funding bill capped funding at 800 judges total, and there are 685 on the bench today. How such an approach might apply to Immigration Judges is a novel question of law, and the exact details on how, exactly, the JAGs will be assigned, funded, and integrated into the Department of Justice have yet to be released.

Due Process Concerns

When JAGs are assigned as immigration judges, they remain subject to military law and discipline via the Uniform Code of Military Justice (UCMJ). Unlike military judges—who enjoy statutory insulation from command influence under Articles 26 & 37—JAGs assigned as immigration judges lack protections to shield their decisions from outside influence, thus creating an inherent conflict between judicial independence and command obedience.

First, under Article 26 of the UCMJ, only the senior Judge Advocates General of the Military Services may supervise military judges, and no one else may participate in their professional evaluation of their judicial performance. This carveout for military judges helps ensure judicial independence, insulating JAGs from external influence or pressure to decide a specific way. No such protection exists for JAGs serving as immigration judges, leaving them open to outside political pressure to support the administration’s mass deportation agenda. For example, JAGs serving as immigration judges lack any such protections and may well report to civilian bosses. These civilian bosses will have input on their professional evaluations. Imagine a JAG serving as an immigration judge who issues opinions that run contrary to the administration’s political agenda, angering his or her civilian bosses. A negative evaluation can sink an otherwise promising military career, creating an unworkable conflict of interest as JAGs attempt to balance career progression with commitment to due process and the rule of law.

Second, Article 37 of the UCMJ prohibits unlawful command influence of military justice proceedings, thereby ensuring independence and impartiality through the court-martial. Again, no statutory carveout exists to help insulate JAGs serving as immigration judges. Although unlawful command influence protections would not apply in immigration court, the threat of placing the thumb on the scale of deportation from senior officials is real and deeply problematic. Orders from their chain of command would have a high presumption of lawfulness¾only “manifestly illegal” orders must be disobeyed.

In light of the Trump administration’s focus on immigration enforcement and the clear executive branch preference to expedite deportation proceedings, JAGs serving as immigration judges are likely to feel outside pressure to favor the government’s view. They may even receive express pressure to rule a certain way, raising significant questions as to whether immigrants appearing before them will receive a fair hearing consistent with their Due Process rights.

Even the appearance of partiality could have significant consequences. The Court of Appeals for the District of Columbia vacated more than two years of orders in a capital case against a man charged with orchestrating a series of bombing plots for al-Qaeda because the military judge overseeing the case failed to disclose that he had applied for an immigration position at the DOJ. The court found that the application to the DOJ, while serving as a military judge, created a “disqualifying appearance of partiality.” The same could happen here, undermining the administration’s goal of reaching finality.

Sidelining JAGs From Their First Priority

Finally, detailing JAGs as immigration judges takes those lawyers away from critical military work while demanding familiarity with the complex legal field of immigration law.

Since Trump took office in January, JAGs who have served for decades through different administrations, have witnessed their most senior uniformed leaders fired. Meanwhile, in the Defense Department, military lawyers are being sidelined from providing legal advice on operational decisions. The loss of 600 JAGs to immigration courts would be a stunning loss of expertise at a time when military legal advice is vital. With fewer JAGs, there is less candid and non-partisan legal advice, creating an environment that allows legally suspect behavior.

Second, assigning JAGs without immigration experience to serve as immigration judges is unfair to both the JAGs and to the immigrants appearing before the court. Immigration law is a notoriously complex, nuanced, and sophisticated area of law. Although JAGs have expertise in military justice, operational law, and laws of war, immigration law has never been a core specialty or practice area for JAGs. Many JAGs assigned as immigration judges will be reading immigration statutes, regulations, and case law for the first time. While we do not doubt that these military attorneys will do their very best despite the lack of subject matter expertise, immigrants before the court are entitled to competent judges who are well-versed in immigration law.

Conclusion

The unprecedented assignment of “soldiers in robes” to oversee civilian courts blurs the line between military and civilian functions. This intrusion into civilian affairs undermines the public’s trust and confidence in the military¾a hard-earned trust that has been slowly rebuilt since the Vietnam War.

The stakes could not be higher. After all, opposition to military entanglements in civilian affairs was a bedrock principle to the United States’ founding, with the Declaration of Independence lamenting the king’s willingness to “render the Military independent of and superior to the Civil Power.”

This is not about the qualifications or credentials of JAGs. We know that most military lawyers – like most immigration judges – will do their best to remain impartial and ethical under trying circumstances, even without sufficient training and legal protections. But these moves create unnecessary risk.

DOJ should return to its 2014 requirements for temporary immigration judges and require immigration or adjudicatory experience – or both – for temporary immigration judges. To ensure due process for immigrants appearing in immigration court and to protect JAGs from prosecution under the PCA, DOJ should immediately take active duty JAGs off the immigration bench. Finally, the courts must resist any attempt to normalize military participation in civilian adjudications. Preserving this line is essential not only for legal compliance but for maintaining the trust that underpins a healthy civil-military balance.

The post Soldiers in Robes: Why Military Lawyers Can Not and Should Not Serve as Immigration Judges appeared first on Just Security.

If not criminals, who exactly is the administration arresting and detaining?

According to the Cato Institute’s analysis of ICE data, between Oct.1, 2024 and June 16, 2025, ICE arrested approximately 204,000 people. Around 65 percent, or 133,000 individuals, had no criminal record at all but were being held in detention because the government claimed they do not have a lawful reason to stay in the United States. Compared to the first year of the first Trump administration, arrests of noncriminals have increased 500 percent.

Many immigrants with no criminal background entered the United States lawfully or were protected from deportation at the time of their arrest, but the government now seeks to end their status. They may have been allowed to enter the country under a process called “parole,” which permits individuals to stay in the country temporarily at the government’s discretion, typically for humanitarian reasons. They could have been granted temporary protected status, which applies to certain individuals who face unsafe conditions in their home country; or they could have come to a port of entry and requested protection from persecution or torture. Others could have entered unlawfully—an act that under the law is confusingly both a criminal act and permissible if the person enters to apply for asylum; or overstayed a visa—an act that qualifies them for deportation under civil law but is not a criminal offense.

ICE does not publish data about the percentage of people in each category, but the Pew Research Center estimates that as of 2023, 5.6 million immigrants—approximately 40 percent of the 14 million immigrants in the country without permanent status and thus categorized by DHS as “without documentation”—had some form of limited status or protection from removal, such as a temporary protected status, parole, or a pending asylum application.

In fact, it is possible that far more than 40 percent of those arrested and detained have some legal protection from deportation. To meet its aggressive target, the government is likely pursuing immigrants who are the easiest to locate—such as those who already gave the government their address when they applied for some form of protection. And we know that the administration is targeting people who are going through normal, lawful activities like taking their kids to school, attending church, going to work, renewing a visa, going to an ICE office for a required check in with an immigration officer, or appearing in immigration court. Indeed, the sharpest growth in ICE arrests is those without a criminal record.

Cato concluded that ICE classifies 35 percent of the individuals it arrested as having a criminal offense on their records, with only 7 percent convicted of a violent offense. The upshot is that at least 65 percent of the people ICE is keeping behind bars are being detained without a public safety rationale. Instead of focusing detention resources on people who could pose a significant public safety risk, the administration is largely locking up immigrants who pose little to no risk, separating them from their families, employers, and communities.

In its zeal to arrest as many people as fast as possible, ICE has also unlawfully detained U.S. citizens, despite having no authority to do so. Northwestern University Professor Jacqueline Stevens, a scholar of deportation, analyzed cases in two detention centers from 2006 to 2008 and found that one percent of people in immigration detention were citizens. Assuming that percentage has held steady, that would mean over 2,000 American citizens locked up by ICE this fiscal year alone. The actual number may be even higher; Stevens only counted detainees who were later confirmed by a judge to be a citizen, excluding many released before reaching court.

Keeping immigrants with no criminal record behind bars has led to significant overcrowding, deaths, illness, and hunger. Immigrants in a New York facility sued the government, claiming they were not given enough food, were denied access to medical services and their attorneys, were not given soap, toothbrushes or menstrual supplies, and were required to sleep on the floor in overcrowded rooms. The court granted plaintiffs’ injunction and attributed the conditions to the administration’s ongoing policy of detaining immigrants to the maximum extent possible: “the heat remains on, and the temperature is likely to rise.”

With ICE rushing to open new offices nationwide, the deportation machine is expanding its reach and capacity, further accelerating arrests and detentions. The effects of large-scale immigration detention on immigrants, their families, their communities, and the U.S. economy will take months or years to measure.

Indiscriminate immigration detention is also expensive. American taxpayers pay approximately $152 dollars a day per person to keep immigrants detained, thus keeping tens of thousands of immigrants who pose little to no public safety threat in detention for millions of dollars a day. Less intrusive alternatives to detention, such as the assignment of a case manager, cost as little as $4 a day. Assigning a case manager to the 65 percent of immigrants without a criminal record would save taxpayers nearly $5.5 billion each year, and case management programs have resulted in nearly perfect compliance. Under one program, 99 percent of immigrants showed up for a required appointment with an ICE officer and 100 percent appeared for court hearings.

Detaining citizens and immigrants without a public safety rationale is inconsistent with American values of liberty or fairness. It is also a waste of taxpayer money.

The post The U.S. Deportation Industrial Complex: Arrests and Detention by the Numbers appeared first on Just Security.

Although the population of undocumented immigrants in the U.S. has remained fairly constant over the past 10 years, overall immigration has increased since the 1970s, and increased funding has been needed to fairly and efficiently address that growth. But the scale and focus of the increases are startling. The July 2025 funding package appropriates huge sums for deportations while neglecting processes that are needed for a fair and workable immigration system, such as immigration judges to ensure citizens or immigrants are not erroneously deported. The result will be a lopsided, enforcement-only machine. Most detention facilities will be operated by for-profit private prison corporations and other private contractors, creating strong economic and political interests that will make the new apparatus very difficult to dismantle.

Taken together long-term detention and surveillance contracts, rapid hiring increases for enforcement, and new monetary incentives for reprioritizing law enforcement on immigration will create a deportation-industrial complex—an enforcement machine with financial and political constituencies that will outlast this administration.

Scale and Recipients of the July 2025 Funding

The biggest piece of the pie for enforcement operations in the United States will go to Immigration and Customs Enforcement (ICE) to arrest, detain, and deport immigrants. Congress gave ICE $75 billion over four years, approximately $18.7 billion each year. Added to the $10 billion Congress already appropriated ICE for fiscal year 2025 in March, ICE now has $28.7 billion at its disposal this year. That $28.7 billion figure is nearly triple ICE’s entire budget for FY24.

Two-thirds of ICE’s funding – $45 billion over four years – will be used to detain immigrants, potentially more than 100,000 people per year. The $11.25 billion added to ICE’s annual detention budget is a 400% increase from last year and exceeds the Department of Justice budget request for Fiscal Year 2026 for the entire federal prison system, which holds 155,000 people.

The budget also gives approximately $30 billion over four years to ICE to track down, arrest, and deport immigrants, allowing it to hire 10,000 new officers. That amount is a 300% increase over ICE’s entire $10 billion prior-year budget.

The bill also allocates billions of dollars to Customs and Border Protection (CBP), which already received a $20 billion dollar appropriation for fiscal year 2025. The July funding bill gives CBP almost $65 billion more over 4 years, nearly $47 billion of which is earmarked for continued construction of a physical wall along the U.S.-Mexico border . This is a stark increase from the amount allocated to the border wall during the first Trump administration, when Congress appropriated $5 billion and President Trump ordered the Department of Defense to divert an additional $10 billion.

The remaining $18.2 billion for CBP in the July funding bill will go to hiring, facilities, technology, and surveillance. Surveillance of border communities already raises significant privacy concerns that CBP has failed to address. A funding surge will enable CBP to supercharge those efforts, further invading the privacy of citizens and noncitizens alike and eroding trust in the government.

Additional funds to support immigration enforcement go to state and local jurisdictions with more than $10 billion for border-related law enforcement support. Congress also gave the Department of Defense $1 billion and established an unrestricted $10 billion fund that the Secretary of the Department of Homeland Security can allocate for any border enforcement purposes.

The administration has already significantly increased pressure on local jurisdictions to enter agreements with ICE to assist with immigration enforcement. Funneling huge sums to state and local jurisdictions will likely divert them from their core law enforcement priorities. The $10 billion unrestricted fund – an amount equal to ICE’s entire budget last year – gives DHS a huge immigration enforcement carrot to dangle in front of DHS components, private contractors, and local and state law enforcement agencies, enticing them to seek those funds to carry out DHS priorities with minimal accountability.

How does this compare to other law-enforcement spending?

The $170 billion price tag for immigration enforcement eclipses other law enforcement expenditures at the federal, state, and local level. It is more than the annual expenditures on police by state and local governments in all 50 states and the District of Columbia combined.

Even the slice that goes just to ICE this year –  nearly $29 billion –  exceeds the budgets for all other non-immigration federal law enforcement functions put together, eclipsing funding to agencies whose law enforcement missions involve pursuing terrorists, violent criminals, sex offenders, fentanyl and other drug traffickers, and gun traffickers.

Does the entire immigration system receive funding?

No. The law substantially increases funds for deportations without providing any money to make the system more fair or functional. While the administration is planning to deport a million immigrants each year, the law does not significantly increase access to the immigration courts — which already have a backlog of nearly 4 million cases — to assess whether they are citizens or otherwise entitled to stay in the United States.

In fact, the funding bill caps hiring of new immigration judges over the next three and a half years at 800 new judges. That’s a 14% increase compared to a 400% increase in funding for immigration detention centers. The disparity signals a plan to dispense with due process in deportations or to let immigrants languish in detention centers while waiting for a hearing. The current corps of immigration judges is already stretched desperately thin, particularly in the wake of the administration’s termination of 65 immigration judges, all of whom are career employees.

The administration has also moved to halt all legal orientation and support programs that help vulnerable immigrants navigate the complex immigration system, including programs that help children and families separated during the first administration. In addition, there is no money in the bill to support the processing of lawful immigration or citizenship applications by United States Citizenship and Immigration Services (USCIS), which already has a record 11.3 million pending cases.

Who is ICE targeting for arrest and detention?

Although the administration repeatedly said it is deporting the “worst of the worst,” its enforcement efforts are sweeping in many people with no criminal records to meet the White House goal of arresting 3,000 immigrants a day.  ICE also changed its policy to allow arrests in places that had been considered off-limits, so now agents are arresting mothers in front of their children as they take them to school, immigrants as they go to church, and asylum seekers when they seek protection in immigration courts.

The administration has also abruptly changed the rules. Immigrants who applied for and were granted legal or protected status have seen that status terminated and are now targets of the administration’s enforcement actions as well. They include immigrants who were lawfully paroled into the country, along with people with temporary protected status from countries experiencing ongoing civil unrest or environmental disasters. The same is true for individuals whose deportation had been deferred for humanitarian reasons such as children who are awaiting visas because they were abandoned or abused. The government is moving swiftly to arrest, detain, and deport them. The surge of new funding will increase the number of people it can target.

What do these allocations signal about the administration’s priorities?

The administration argues that ramped-up immigration enforcement is needed to improve public safety and national security and that it is prioritizing immigration enforcement over all other law enforcement efforts, even though research indicates that immigrants do not drive up crime rates. Nevertheless, the administration has pulled FBI, drug, and gun agents away from their core missions to help pursue immigrants. It also has cut crime prevention programs that supported efforts to reduce violence and criminal justice research across 48 states and territories. For fiscal year 2026, the administration is proposing further funding cuts, including eliminating 1,500 FBI employees, defunding other law enforcement agencies, and cutting vital programs designed to keep Americans safe.

In short, all other federal public safety efforts now take a back seat to arresting and detaining immigrants – the vast majority of whom do not have a criminal record. Similarly, the administration’s funding allocation makes clear that deportation is the top priority, even if other core values – like due process to ensure the law is accurately applied – may be compromised.

What are the risks of the rapid, massive funding surge?  

ICE will likely rush to spend its full allocation of funds, but it takes more than money to build detention facilities, hire additional staff, and buy equipment. It also requires staff to do the hiring and to ensure compliance with rules governing hiring and procurement. The rush to spend money fast is likely to result in large amounts of funding flowing to private contractors, with pressure to cut corners.

Private prison firms will reap most of the financial benefits of the detention budget, as nearly 90 percent of people in ICE custody are already held in for-profit prisons. Months before the president signed the budget bill in July, ICE already had solicited contracts from private firms, setting up an expedited contract process. The two largest for-profit companies have been significant financial supporters of the president and one has hired several former high-level ICE officials. Oversight of these private facilities is significantly diminished because the administration has gutted the oversight offices at DHS and is defying some efforts at Congressional oversight.

The rush to spend a 300% budget increase will also strain ICE’s ability to hire quality staff (roughly 10,000 deportation officers). According to a 2017 Inspector General report, to hire 10,000 officers, ICE would need 500,000 applicants, but the push to hire comes at a time when law enforcement agencies nationwide have had difficulty filling their ranks and unemployment rates are low.

ICE already has special hiring authority that allows it to bypass the usual rigorous hiring procedures for federal employees, and deportation officers are not required to meet the same requirements as other federal law enforcement officers, such as having prior law enforcement experience. Pressure to hire quickly risks further lowering the bar or taking additional short cuts that are more likely to lead to hiring people whose work or criminal history should be disqualifying. Past efforts to accelerate the hiring of 5,000 CBP officers – half of the goal for new ICE hires – resulted in corruption rates, including for bribery by trafficking and smuggling organizations, that far exceeded rates of corruption at other law enforcement agencies.

What should happen instead?

An enforcement-heavy posture — with detention largely outsourced to for-profit companies— will build a durable deportation infrastructure that is hard to reverse once funding, contracts, and staffing are locked in.  Once an agency receives funding and begins hiring and entering contracts for firms to build facilities and ramp up the nation’s immigrant detention apparatus, expectations for continued funding become entrenched, making it difficult to reverse the trend.

Instead of a deportation-only approach, funding should be balanced to screen for humanitarian claims like asylum; process more legal immigration applications; and hire enough judges to hold immigration court hearings. We are a nation of laws — including immigration laws — and a core American principle embedded in our Constitution is that everyone is entitled to due process to make sure that the law is being applied faithfully and accurately. Funding choices should reflect that principle.

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