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Is this even legal? Expect a bruising battle over Trump's new deportation orders

The orders haven't officially come out from the White House yet, but widespread reports show President Donald Trump is about to implement orders that will make almost every illegal immigrant in the United States subject to deportation.

Wait, can he do that?

Yes, but before we debate the legality and logistics of President Trump fulfilling his earliest and most-repeated campaign promise, let's look at what the administration is really trying to do.

It's important to note that the Trump team's push to increase the justification for deportations may be just another classic "Art of the Deal" move on two fronts.

First, there's the likely effect this expansion of deportation powers will have even before the first illegal immigrant is sent back home. Once the administration announces and the news media reliably blows up the news that almost anyone can now be deported, from a serious criminal to a person that has overstayed the limit on his student visa, a significant chilling effect will be created.

We've already seen the results of that growing deportation fear, with applications for citizenship from green card holders soaring in major cities. But if the message comes across clearly that the Trump team really is serious about major increases in deportation, a lot of people planning to come here illegally will likely change their minds.

And this is not an academic hypothesis because we've seen that the opposite scenario encourages more migration and more problems. For example in 2014, tens of thousands of Central American migrants trekked across Mexico under the false belief that the Obama administration had essentially opened the U.S. border to young people. A frightening number of them were children and the U.S. apprehended as many as 68,000 of them.

The result was what President Obama himself called an "urgent humanitarian situation" at the border an in U.S. detention centers. He even urged Congress for billions in emergency funding to shore up border security, air surveillance, and meet the rising deportation costs. Again, all of this was the result of the simple misinformation campaign convincing Central Americans that the U.S. was at least tacitly welcoming illegal immigrant children. Sending the opposite message could help avoid future instances like the 2014 border crisis. In this way the threat of deportations could have just as much of an effect as actual deportations, if not more.

"Just because ICE and other law enforcement agencies have had the expanded power to deport non-citizens for most of the last 20 years doesn't mean the Trump team's decision to capitalize on these rules won't meet massive protests, and more importantly, legal challenges."

Second, there is that important at least appearance of wasting little time to do what then-candidate Trump promised. Remember that his call to curb illegal immigration and actually remove dangerous aliens from the country wasn't just any old campaign promise, it was the very thing that distinguished him from all the other presidential candidates from the very first day of his campaign. This order, no matter how well or exactly its carried out in the end, will likely shore up a significant number of Trump supporters and voters still on the fence. Keeping the connection strong between him and his voters simply by announcing expanded deportation

Okay, but now let's talk about the actual deportation spike should it actually occur and what it would mean. It is indeed legal for the Trump team to actually boot people out of the country if they have no legal immigration status and they're caught committing even non-violent crimes. There are a lot of misconceptions about this plan, and one of the biggest is mistaking this process as new. Because deporting people in the U.S. illegally after being caught even for minor crimes is absolutely nothing new.

This practice picked up steam in 1996 when the Republican Congress passed and President Bill Clinton signed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). By 2009, tens of thousands of illegal immigrants had been deported under the new law and human rights groups say about a quarter of those deported were sent out for minor and non-violent crimes. The Obama administration sought to curb this in 2015 when it effectively barred ICE agents from working in consort with local police departments. The Trump orders would simply reverse that less than two-year-old change.

But just because ICE and other law enforcement agencies have had the expanded power to deport non-citizens for most of the last 20 years doesn't mean the Trump team's decision to capitalize on these rules won't meet massive protests, and more importantly, legal challenges. Immigration lawyers have long opposed the IIRIRA on the argument that the 14th Amendment provides all people inside the U.S. equal legal protections regardless of immigration status.

And those lawyers will have help... from Mexico. The Mexican government and prominent Mexican citizens are behind growing efforts to block U.S. deportations of Mexican migrants by backing their efforts in court with monetary aid and legally trying to force the U.S. to prove every deportee is indeed a Mexican before accepting their return. This could effectively jam the already overtaxed U.S. immigration court system.

All of the above means the opposition to the Trump orders, no matter how legal or justified those orders may be, will look to defeat the White House's efforts by making them too expensive or tedious to carry out. And that could work, unless one of the logical results of a big increase in deportations and challenged deportations plays out: The need for more detention centers.

Just imagine a situation where tens of thousands of deportees, perhaps even hundreds of thousands, are waiting in already jammed detention centers while the legal cases and protests rage outside. In response, get ready for calls for new detention centers to be built or the commandeering of unused buildings and even open-air spaces to put those detainees. There is a precedent for this as well, as the Carter administration even put thousands of Cuban refugees at decommissioned military missile silos while their immigration statuses were under review after the Mariel Boatlift in 1980.

Precedent or not, the Trump administration will most likely want to avoid the extremely bad optics of dozens of massive camps filled with would-be detainees. That is probably a big reason why the president has reportedly agreed to exempt children brought here by illegal immigrant parents, the so-called "Dreamers," from this expanded deportation order. It's also why the Trump team keeps insisting that the illegal immigrants with serious criminal records be targeted first and perhaps somewhat exclusively for an indeterminate amount of time. Both of those key directives should cut down on the number of stranded detainees considerably.

The result everyone can expect right away is protests. Lots of protests. Think about it: If President Trump's executive order to keep out new immigrants and visitors from seven faraway countries could induce so many demonstrations on the streets and in the airports, just imagine what an order to start deporting what could be millions of people already living and working here will do. And that will put the same pressure on the administration and even the courts that the anti-travel ban protests created.

That brings us back to the "Art of the Deal" or President Trump's sliding scale of success. We saw that scale with the Carrier jobs announcement and the string of other announcements from a handful of other companies that have pledged to boost their U.S. investments and jobs since the election. We can't really know yet what the macroeconomic effect of those moves will be, but we do know that the positive effect of the heavy news coverage of those announcements helped solidify the new president's base and convince a few on-the-fence voters to give him a chance.

They've also been a talking point at Trump rallies and news conferences ever since. Expect the same kind of result here as protests and other obstacles will most likely hamper any chance for massive deportations for what could be years. But even a smaller number of deportations, especially for those criminals ICE can find and capture, would be a likely win the administration.

For the most part, President Trump is really just bringing us back to what was the immigration status quo before 2015. It will be yet another example of a supposedly explosive change that won't be all that explosive after all.

Commentary by Jake Novak, CNBC.com senior columnist. Follow him on Twitter @jakejakeny.

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