Jonathan P. Baird

In her novel, The Nightingale, Kristin Hannah vividly recreates the mass deportation of Jews from France by the German Nazi occupiers during World War 2. The brutality, violence and misery of the enterprise are captured. Reading it, you feel what it must have felt like to be there.

Now, this election season, we have the Republican Party calling for the fascist idea of mass deportations. At the Republican National Convention, Donald Trump promised:

“As soon as I take the oath of office, we will begin the largest deportation operation in the history of our country.”

Trump has vowed to deport 15 to 20 million undocumented immigrants even though the Department of Homeland Security estimates that there are 11 million in the country. We saw the Mass Deportations Now signs at the RNC. Influential MAGA leaders like Stephen Miller, Trump’s immigration go-to person, insist MAGA can work around legal and logistical roadblocks to complete the operation.

For such a prominent idea in the Trump universe, there has been little analytical rigor in evaluating the mass deportation project. Trump has offered few specifics. The potential for things to go awry could not be more apparent. We have a poorly thought through idea that is not feasible..

I would suggest the legal, financial and practical challenges to such an endeavor would be enormous. The costs of radically expanding the deportation system would be astronomical and the adverse economic consequences would be catastrophic to the American public. Not surprisingly, Trump has brushed over these dimensions of his plan, as much of it as he has revealed.

The deportation process is multi-part. There is the rounding-up of immigrants, housing and feeding them, medical care, alternatives to detention where possible, court hearings and judicial process. All these come before removal. Immigration and Customs Enforcement (ICE) doesn’t simply arrest people and fly them out of the country immediately,

Those detained have a constitutional right to due process under our legal system although it would appear Trump wants to take that due process right away just as he would like to do with birthright citizenship. Those rights still exist though. Trump would likely try and remove the right to appear before a judge as part of the deportation process. His scheme is about fast-tracking an exodus.

During Trump’s presidency it took years for the government to secure an additional 15,000 detention beds. Now Trump is talking about deporting millions. Just the cost of deporting a million people would run into tens of billions of dollars. Congress would have to allocate the money and both Houses would have to approve. That is hardly a given.

The ACLU and other legal challengers won’t be silent. Nor will the millions of Americans who would oppose the scheme. The Nazis were able to remove the Jews from France because of their military control and terror tactics. The American scene is drastically different with far more opportunity for opposition through litigation and direct action.

Many cities have passed laws restricting cooperation with ICE. Chicago, Denver, Los Angeles, and Philadelphia have refused to cooperate. Most of the 11 million undocumented are long-term residents in the U.S. with established roots. More than a million Americans are married to an undocumented person and many of the undocumented have children who are U.S. citizens. They are spread out all over the country.

Trump talks about using the National Guard for his deportation operation but legal questions abound. The Posse Comitatus Act doesn’t allow the use of the military to enforce laws within the U.S. except in “cases and under circumstances expressly authorized by the Constitution or Act of Congress”. Trump would need to get Congress on board with any plan.

Stephen Miller has talked about building large-scale staging areas near the Southern border but building such detention camps would be a recipe for disaster. Imagine the scenario. Adam Isacson from the Washington Office on Latin America, nails it:

“Every community in the U.S. would see people they know and love put on buses. You’d have some very painful images on TV of crying children and families. All of that is incredibly bad press. It’s family separation on steroids.”

The Trump plan fails to consider how integral undocumented immigrants are to our economy. Realization of mass deportations would lead to a dire shortage of low wage workers. Certain industries like fruit and vegetable harvesting, cleaning and housekeeping, child and elder care and construction would be especially hard hit. These are not jobs that American workers have been clamoring to do.

The undocumented pay billions in taxes, including Social Security taxes, even though they are not eligible for benefits. Contrary to the Trump fantasy, mass deportation is likely to harm the economy. America would need food imports because we would lack the labor force to produce and pick all the food we need.

Trump often cites the racist Operation Wetback from the 1954 Eisenhower era as a model of how government can do a mass deportation. An estimated 1.3 million Mexicans, mostly single men, were put on buses, planes and boats and were deported. Trump doesn’t mention that many U.S. citizens were wrongly racially profiled and deported. Nor does he explain that the operation was a racial terror campaign designed to prompt people to self-deport.

Advocating mass deportation is a shameful publicity stunt based in racism and xenophobia. It is a scapegoating exercise meant to appeal to the worst in people. It is about finding a group to hate on. History shows how mass deportations invariably go wrong.

In the annals of American history there have been some truly horrible Supreme Court decisions. I have always thought Dred Scott v Sandford was the worst. Saying African Americans had no claim to freedom or citizenship was a disgrace and humiliated the Court.

But there are other cases that are contenders for the worst. Plessy v Ferguson, the 1896 separate but equal decision and Korematsu v United States that upheld the internment of Japanese Americans during World War 2 are in the running. So is Buck v Bell, a 1927 decision that permitted compulsory sterilization of those deemed unfit, “imbeciles” and others considered undesirable..

I would also include Dobbs v Jackson Women’s Health Organization, the 2022 abortion decision that overturned Roe v Wade. What other case has taken away a constitutional right? What kind of court strips people of their rights?

Still, in the mix, is a new contender – United States v Trump, the presidential immunity decision, decided on the last day of the Court’s last term. That case may be the new worst. Not only did the Court do Donald Trump a huge political favor of delay, the Court majority essentially decided that none of his illegal schemes mattered. Trump wanted no more of his cases heard before the election this fall and the Court majority could not have been more cooperative. They delayed to the last possible minute.

The majority opinion was written by Chief Justice John Roberts. While he had previously been described as a moderate institutionalist, this opinion clarified and cemented that he is as much a hardcore reactionary as the other far right justices.

In writing a decision “for the ages”, it insured that if Trump wins a second term, he will be able to exercise dictatorial power without fear of consequences. To quote from Justice Sotomayor’s dissent:

“The relationship between the President and the people he serves has shifted irrevocably. In every use of official power the President is now a king above the law.”

Justice Sotomayor says the Court majority “invents an atextual, ahistorical and unjustifiable immunity that puts the President above the law”. Article II in the Constitution doesn’t mention immunity. The doctrine is entirely court-created. Justice Sotomayor notes the majority’s expansive view of presidential immunity was never recognized by the Framers.

Lost in the majority opinion is the understanding that the Framers went to the Constitutional Convention in Philadelphia in 1787 determined not to replicate the British monarchy they had fought so hard to defeat. They may have disagreed about the relative power of different branches of government but the Framers had a deep antipathy and distrust of executive power.

It was abuse by Great Britain’s King George III and his royal governors that lit the fire of the American revolution. The Framers all agreed that the President’s power should be limited. Key participants in the Constitution’s ratification debates emphasized that the President would remain subject to criminal prosecution. The historical record demonstrates intense anti-monarchical sentiment and a heavy presumption against presidential immunity.

James Madison warned a chief executive “might pervert his administration into a scheme of peculation or oppression”. He said a President’s corruption “might be fatal to the Republic”.

What makes United States v Trump so bad is that the Court majority is recreating, to again quote Madison, “another runaway monarchy”. If Trump wins again, he will dismiss the Federal Court cases filed against him and figure out a way to do crimes within his official duties. Juries won’t be able to consider evidence of his official acts or inquire into his motives.

The crime of which Trump stands accused, conspiracy to thwart the peaceful transfer of power following the 2020 election, is exactly the lawlessness the Founders feared most. They warned about conspiracies to maintain power, disregarding the popular vote. This is the ultimate crime against the people.

No decision of the Supreme Court has ever cut more against the American ideal of democracy and popular rule than United States v Trump. It was designed to make criminal prosecution of a President impossible and it sent a green light message to Trump. In a second term, he could use the Department of Justice or the military as he wishes. The Court won’t interfere.

The Court majority said there is less protection for unofficial, private acts but they wrote the decision in a way that renders unofficial acts a nullity. Justice Sotomayor highlights the “law-free zone around the President” and lays out nightmare scenarios that could play out as a result of the decision.

“When he uses his official powers in any way, under the majority’s reasoning, he will now be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organize a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”

Democrats have been slow to recognize the gravity of United States v Trump. If Trump wins in November, this case is a license for dictatorship. It is hard to imagine how a case could be worse.

After the death of George Floyd and the movement it provoked, it looked like there might be a serious national effort to address racial bias in policing. It also looked like there might be a genuine dialogue about the appropriate use of force by police in their encounters with the public. Neither happened and both debates were short-circuited.

The July 6 police shooting of 36 year old Sonya Massey, an African-American woman from Springfield, Illinois, is the most prominent example of where lack of progress around police reform has led – an absolutely senseless death at the hands of an out-of-control policeman. This was a shooting that the police could not defend. The local sheriff, Jack Campbell, fired the shooter who was subsequently charged with first degree murder. Campbell said:

“Sonya Massey lost her life due to one unjustifiable and reckless decision from Deputy Sean Grayson. Grayson had other options available that he should have used. His actions were inexcusable and do not reflect the values or training of our office.”

Massey had called 911 because she thought there was an intruder in her house. She had been having mental health issues. She had admitted herself into a 30 day in-patient program in St. Louis but inexplicably she left the program after two days and returned home.

Massey’s mother had called 911 on July 5 to report her daughter was having a mental breakdown. The police were unaware of that call. When they arrived at the Massey residence on July 6, they asked Massey to identify herself to them. Massey went to search for identification but then she went into the kitchen to her stove to turn off a pot of boiling water. One deputy asked her to turn the hot water off.

While she handled the pot, a deputy said he was moving “away from your hot steaming water”. Massey answered “I rebuke you in the name of Jesus”.

The deputy said “Huh?” Massey repeated the rebuke comment and said “I’m sorry”. She then ducked behind a breakfast bar. It appeared she was trying to shield herself. Grayson told her “Drop the f—— pot!” and almost simultaneously fired three shots at Massey’s head, fatally wounding her.

The cops had only been at Massey’s residence for less than three minutes when Grayson fired the shots. After he essentially executed Massey, Grayson made no effort to administer medical care to Massey.

Grayson’s body-worn camera was not operating until after he shot Massey but the other deputy at the scene did have his body-cam rolling. It is likely Grayson thought he could get away with the shooting because he had his body-cam off.

The other body-cam contradicted Grayson’s story. Grayson said Massey came at him with boiling water but that is not what the body-cam showed. In the first dispatch audio, the police told hospital staff Sonya Massey died by suicide. They said “self-inflicted “. The police didn’t take the time to get their story straight.

How many times have we seen this story? In the New York Times, Charles Blow wrote:

“This kind of devastation has happened so often, to so many families, that it has become a motif of Black existence in this country, an enduring injury, a simmering sadness, an ambient terror.”

Even before the Massey killing, Grayson had a checkered history. He had been discharged from the Army for serious misconduct. He had been charged with two DUIs. Since 2020 he had been employed by six law enforcement agencies.

He is an example of what has been called “wandering officers” who drift from police department to police department after being let go under unclear but seemingly unfavorable circumstances. New hires don’t get properly vetted. There are 18,000 law enforcement agencies across the U.S. and there is no national database for tracking and weeding out rogue officers.

Nothing stops someone like Grayson from hiding past misdeeds when they move on to a new police job. According to CNN, there is a police misconduct registry, the National Decertification Index which lists about 55,000 officers who had their law enforcement certificate or license revoked due to misconduct but its coverage is “spotty”. Grayson had never been decertified.

Before he murdered George Floyd, Derek Chauvin had 18 prior complaints filed against him with the Minneapolis Internal Affairs.

Campaign Zero, an organization that studies police violence, found that 2023 was the deadliest year for police violence. There has been no improvement since George Floyd died. Police killed 1,329 people in 2023. Black and brown individuals were disproportionately affected. These 2023 numbers happened even though there has been a national decline in homicides and other violent crimes.

Fewer than 2% of officer-involved shootings are ever prosecuted and less than 1% result in guilty pleas or convictions. Donald Trump, a convicted felon, has been calling for immunity for the police for their “official acts”, something that has been de facto already happening. I would suggest the perception of likely immunity was one factor that propelled Grayson.

The Massey case has led to new calls to revive the George Floyd Justice in Policing Act, federal legislation which was drafted to address police brutality and racial profiling. The bill previously passed the House in 2021 but stalled in the Senate.

It is little-remembered that the site of the Massey crime, Springfield, Illinois, the hometown of Abraham Lincoln, was the scene of a race riot and lynchings in 1908. A large white mob lynched two Black men, killed and wounded scores more, destroyed the homes and businesses of Black and Jewish residents and drove thousands from the city. Following in that tradition, Sonya Massey was the victim of a modern-day lynching.

After the coup attempt on January 6, 2021 and considering Donald Trump’s refusal to recognize the results of the 2020 election, it is hard not to worry about election schemes Trump might have up his sleeve. Sometimes paranoia is justified. John Lennon once said, “Paranoia is just a heightened sense of awareness.”

Many political commentators have remarked on Trump’s often-made statements to his fans about how they don’t have to vote. At a Christian summit, he told attendees that they would never need to vote if he becomes President again. He said, “get out and vote, just this time”. He went on “you won’t have to do it anymore. Four more years, you know what? It’ll be fixed, it’ll be fine, you won’t have to vote any more, my beautiful Christians”.

Predictably, Democrats lost their minds. This was a typical ambiguous Trump statement that could be interpreted differently. Statements like this always allow Trump plausible deniability when he is accused of wanting to cancel future elections.

When he went on Laura Ingraham’s FOX show, Ingraham gave Trump many opportunities to clarify the “you won’t have to vote again” comment. He gave a less-than-clear answer mostly saying how much Christians support him and how Jewish people who don’t support him “should have their head examined”.

Trump has been saying “we don’t need the votes. I have so many votes”. This is not a one-off comment. He has repeatedly been telling audiences he doesn’t need the votes which is weird even for a candidate who talks excessively about Hannibal Lector, sharks and electrocution. I cannot recall any presidential candidate saying anything comparable in an election year.

I would suggest a different thing to worry about than the cancelling of future elections. I am wondering why Trump is saying he doesn’t need votes now. There is a reason why Trump is saying this. Given his history, the likelihood is that he is saying this because he has another strategy in mind besides getting the most votes and winning the election. If he was serious about winning the vote tally, he would be fighting hard for every vote and he would never discount the importance of voting.

In an important article in the July 29 Rolling Stone, the magazine raised a concern around certification of the 2024 presidential election. They quote Democratic election lawyer Marc Elias:

“I think we are going to see mass refusals to certify the election in November. Everything we are seeing about this election is that the other side is more organized, more ruthless and more prepared.”

Much of the Republican Party remains stuck in conspiracy theories and election denialism. Trump has maintained the fiction that he was cheated in the 2020 presidential race. That belief remains alive and widespread among Republicans including among Republican election officials.

Rolling Stone compiled a list of election officials by culling media reporting about officials who refused to certify results. They write that 70 pro-Trump election deniers ( who they identify by name) are working as local election officials in at least 16 counties across six key battleground states. They go on to say that examination of thousands of posts from hundreds of election officials show unapologetic belief in Trump’s election lies. Elias goes on:

“..Republicans are counting on not just that they can discredit the election in big counties but they are counting on the fact that if they don’t certify in several small counties, you cannot certify these statewide results.”

It is entirely possible that if Trump believes he would lose in the Electoral College, he would opt for other routes to power. Certification disputes could land in court or even the House of Representatives where he probably likes the odds better. The Republicans still have a margin in the House. More House state delegations are controlled by Republicans. In that form of voting, Republicans could have enough power to win in the House and decide the presidency for Trump.

Trump believes the House will hand him the presidency even if the voters pick Harris. He will again cry voter fraud. He probably also thinks that a Supreme Court which has treated him as a king will bend to his wishes..

At the least, certification disputes could result in delay and confusion. The chaos could undermine perception of a free and fair election.

Trump might be hoping this could be a vehicle for him to overturn the popular will. Having a criminal mentality, Trump has no loyalty to democracy and any principled notion that the voters should decide. He is about winning at all cost since that is the surest way for him to avoid jail time. The fact that so many Republicans including their standard bearer remain election deniers means a repeat of post-election irregularities are likely again this year.

The Republican battle plan is increasingly clear. It is a multi-pronged strategy that includes mass voter challenges by Republican lawyers to the eligibility of likely Democratic voters and voter roll maintenance to purge as many likely Democratic voters as possible.
Republicans have amassed an army of lawyers both to make it harder for people to vote and to have their vote counted. Trump has promised lawyers at “every poll booth”.

Voter ID disqualification, challenges to mail ballots and gerrymandering are all favorite tactics. Republican-controlled state legislatures have been laboratories for voter suppression. This is in addition to disputing certification.

Lawsuits are part of the groundwork for laying the claim an election was stolen. Danielle Alvarez, a senior advisor to the RNC and the Trump campaign has said that lawsuits were one of the RNC’s main priorities this year. She has said, “This is something that’s very important to President Trump”.

I think Democrats have been slow to see the Trump game plan and why he says he doesn’t need votes because as he says “we got plenty of votes”. Democrats are underestimating how conniving their opponent is. Too many Democrats still seem to expect normal.

If Trump starts falling behind in the polls, expect his talk about a stolen election will increase. Past history may be the best predictor of what will happen between November 2024-January 2025. Desperation on the Republican side is not likely to produce moderation. It is hard to imagine another January 6 given Biden control of the Executive Branch but violence is certainly a possibility for die-hard Trump supporters who won’t accept election results.

In a genuinely fair election, only the voters decide. That must not change.