President Donald Trump on Tuesday pledged to mobilize the military to help secure the U.S. southern border. President Trump meeting with leaders from Estonia, Latvia, and Lithuania today said, “I’ve been speaking with General Mattis — we’re going to be doing things militarily. Until we can have a wall and proper security, we’re going to be guarding our border with the military. That’s a big step. We really haven’t done that before — certainly not very much before.”
Trump cites the publicized caravan from Honduras as one of the reasons he plans to take this actions. He also blamed policies enacted by the Obama administration:
And when this caravan came in — and this is a caravan of a lot of people coming in — in this case, from Honduras. If it reaches our border, our laws are so weak and so pathetic, you would not understand this because — I know how strong your laws are at the border. It’s like we have no border because we had Obama make changes. President Obama made changes that basically created no border. It’s called catch-and-release. You catch them, you register them, they go into our country and we can’t throw them out. And, in many cases, they shouldn’t be here. In many, many cases, they shouldn’t be here. And after they get whatever happens over the next two or three years, they’re supposed to come back to court. Almost nobody comes back to court. They’re in our country, and we can’t do anything about it because the laws that were created by Democrats are so pathetic and so weak.
Both Presidents George W. Bush and Barack Obama have mobilized National Guard troops in the past, but those deployments were to provide support for the Border Patrol. The National Guard was deployed from 2006 to 2008 by President Bush to aid Customs and Border Protection. The peak number of troops at the border at that time was 6,000. More than 30,000 individuals participated in the mission called “Operation Jump Start.” They were allowed to be armed, but not permitted to perform law enforcement functions, and were still under the control of the border state governors. The federal government paid for their deployment. President Obama in 2010 deployed 1,200 National Guard members that were primarily used to surveil the border fence.
It is unclear how large the deployment President Trump has in mind, and what role they will play.
The Defense Department and Department of Homeland Security did not release an official statement in response.
The Posse Comitatus Act (PCA) prohibits the use of troops in federal service for the purpose of domestic law enforcement unless such action is permitted by the Constitution or an Act of Congress. National Guard troops providing geographical support for the Border Patrol is not considered to be in violation of that law, especially since they remained under the authority of governors and did not perform law enforcement tasks.
Anything beyond mobilizing National Guard troops to remain under the control of Governors would likely be considered a violation of PCA.
R. Chuck Mason, a legislative attorney with the Congressional Research Service, in his 2013 report on this topic wrote:
The PCA prohibits the use of the Army and Air Force to execute the domestic laws of the United States except where expressly authorized by the Constitution or Congress. The PCA has been further applied to the Navy and Marine Corps by legislative and administrative supplements. For example, 10 U.S.C. Section 375 directs the Secretary of Defense to promulgate regulations forbidding the direct participation “by a member of the Army, Navy, Air Force, or Marines in a search, seizure, arrest, or other similar activity” during support activities to civilian law enforcement agencies. DOD issued Directive 5525.5, which outlines its policies and procedures for supporting federal, state, and local LEAs. DOD Directive 5525.5 prohibits the following forms of direct assistance: (1) interdiction of a vehicle, vessel, aircraft, or other similar activity; (2) a search or seizure; (3) an arrest, apprehension, stop and frisk, or similar activity; and (4) use of military personnel in the pursuit of individuals, or as undercover agents, informants, investigators, or interrogators.
The PCA does not apply “in cases and under circumstances expressly authorized by the Constitution.” Congress is empowered, under the Constitution, to call forth the militia to execute the laws of the Union. The Constitution, however, contains no provision expressly authorizing the President to use the military to execute the law. The question of whether the constitutional exception includes instances where the President is acting under implied or inherent constitutional powers is one the courts have yet to answer. DOD regulations, nonetheless, do assert two constitutionally based exceptions—sudden emergencies and protection of federal property. The PCA also does not apply where Congress has expressly authorized use of the military to execute domestic law. Congress has done so in three ways: by giving a branch of the Armed Forces civilian law enforcement authority (e.g., the Coast Guard), by addressing certain circumstances with more narrowly crafted legislation, and by establishing general rules for certain types of assistance.
I think what we are likely to see is another National Guard mobilization with a limited support capacity. Anything beyond that would be embroiled in litigation that is most likely not to go the President’s way unless Congress specifically acts.
Update: The New York Times reports tonight that President Trump plans to mobilize the National Guard.
The White House said Tuesday night that President Trump planned to deploy the National Guard to the southern border to confront what it called a growing threat of illegal immigrants, drugs and crime from Central America after the president for the third consecutive day warned about the looming dangers of unchecked immigration.