What does the law say about putting troops on the border? 

The deployment of up to 4,000 National Guard troops to the southern border has garnered not just political controversy, but also discussion about the applicable law.  For example, can Governor Jerry Brown restrict California National Guard troops from having anything to do with immigration enforcement as the AP reported today?  Allow me to try to address several of the legal issues involved with this operation.

Some background: as Lawfire readers know, I opposed the construction of a border wall last October, because I thought it was an unnecessary expense due to declining numbers of illegal entries.  I still have qualms about building a wall, but I do concede that new numbers about illegal border crossings make the argument for increasing border security (if not wall construction) stronger.

Although illegal border crossings were at historic lows in 2017, the Department of Homeland Security does have current statistics it says calls for the deployment of the Guard to the border. For its part, U.S. Customs and Border Patrol (CBP) reported on April 4th that: 

“During the month of March CBP saw a 37 percent increase overall when compared to February, but a 203 percent increase compa red to March 2017.  The number of Family Units increased by 49 percent and the number of unaccompanied children (UAC) increased by 41 percent compared to last month.”

In his April 4th proclamation, the President cited 32 U.S.C. § 502 and 3 U.S.C. § 301 as authority for directing that:

The Secretary of Defense shall support the Department of Homeland Security in securing the southern border and taking other necessary actions to stop the flow of deadly drugs and other contraband, gang members and other criminals, and illegal aliens into this country.  The Secretary of Defense shall request use of National Guard personnel to assist in fulfilling this mission, pursuant to section 502 of title 32, United States Code, and may use such other authorities as appropriate and consistent with applicable law.  (Bolding added.)

The word “request” is needed because National Guard personnel in Title 32 status remain under the command of their respective State governors, not the President – even though the Federal government picks up the bill for the costs.  (The National Guard Association of the United States [NAGUS] has an excellent fact sheet describing the legal status of the National Guard personnel under various legal authorities).

Governors may refuse the “request” to use their National Guard troops as some have indicated they would do (see here and here).  They may also limit the role of their troops as seems to be the case with Governor Brown.

However, if the National Guard were to be “Federalized” under Title 10 they would not be able to decline.  Several legal authorities for “Federalizing” are noted in the NAGUS fact sheet.  For example, when President Eisenhower “Federalized” the Arkansas National Guard in 1957 in order to integrate Little Rock, AK, schools, the authority he relied upon 10 U.S.C § 332, 333, and 334.  And there are other examples.

Importantly, President Trump has not “Federalized” the National Guard so a confrontation with recalcitrant governors has been avoided thus far.  But if he did, then in addition to the statutes noted above, Supreme Court precedent would also seem to support him.  In the 1990 case of Perpich v. Department of Defense, the then-governor of Minnesota had refused to allow his State’s Guard to participate in overseas training in Federal status.  The Court concluded that their “interpretation merely recognizes the supremacy of federal power in the military affairs area and does not significantly affect either the State’s basic training responsibility or its ability to rely on its own Guard in State emergency situations.”

There has also been some discussion of the Posse Comitatus Act as it relates to the potential activities of the National Guard troops.  That statute says:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air 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.

Accordingly, this statute can be a significant limitation on active duty members of the armed forces, as well as “Federalized” members of the National Guard because it “restricts the participation of the military in domestic law enforcement activities under many circumstances.”  As to implementation, the Congressional Research Service (CRS) cites a DoD directive (which blends law and policy) that prohibits the military from doing such things on the border as: 

“(1) [the] 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.”

However, as NGAUS explains, the Posse Comitatus Act does not necessarily limit the activities of National Guard personnel in Title 32 (State) status:

“The key to this instance is that Federal Law provides the Governor with the ability to place a soldier in a full-time duty status under the command and control of the State but is directly funded with Federal dollars. Even though this duty status is authorized by Federal statue, this section is a statutory exception to the Posse Comitatus Act; the Governor may use the Guard in a law enforcement capacity while the chain of command rests in the State.”

For National Guard personnel in State status, their ability to conduct law enforcement activities is mostly determined by State law.  Nevertheless, in this instance it appears that there is no intent to use the National Guard in anything but a support capacity.  According to the Department of Defense (DoD):

“The National Guard’s efforts will include aviation, engineer, surveillance, communications, vehicle maintenance and logistics support. These National Guard members will act in support of Border Patrol agents who are performing law enforcement duties.” 

These sorts of support activities do not, in any event, amount to “law enforcement.” CRS explains that courts have held that the Posse Comitatus Act is only violated when (absent a recognized exception):

“(1) civilian law enforcement officials make “direct active use” of military investigators; or (2) the use of the military “pervades the activities” of the civilian officials; or (3) the military is used so as to subject “citizens to the exercise of military power which was regulatory, prescriptive, or compulsory in nature.” The act is not violated when the Armed Forces conduct activities for a military purpose.” 

Regardless, for this deployment to the border DoD has already said that “troops will not perform law enforcement activities or interact with migrants or other individuals detained by DHS without approval from the [Secretary of Defense].”

Yes, some may be armed, but DoD says that “[a]rming will be limited to circumstances that might require self-defense.” (The military has “Standing Rules for the Use of Force” that spell out how the use of forced is limited in domestic situations).

It is also worth keeping in mind that, as the CRS says, the “military does have, however, general legislative authority that allows it to provide support to federal, state, and local law enforcement agencies (LEAs) in counterdrug and counterterrorism efforts, and in combating certain border-related immigration and smuggling crimes.”

Additionally, what is proposed by Trump’s proclamation is similar to what has been done in the past to secure the border.  As DoD points out: “6,000 [troops] were sent under President George W. Bush, and 1,200 under President Barack Obama.”  How long should we expect the troops to be on the border this time?  The current authorization for the use of the National Guard troops extends through September 30, but could be extended.

In a related matter, Secretary Mattis has indicated that the military could be involved in building a wall or a fence on military bombing ranges located along the border.  Stars & Stripes reports:

The military could fund the wall effort for “probably the part, where if I need to…put a fence along a bombing range that’s right next to the border,” Mattis said. “This is a safety consideration. I don’t care who they are, they are human beings. I don’t want them wandering into a bombing range that was active.”

I think Secretary Mattis is correct in that the military could lawfully fund a wall in those locations for the safety reasons he cites.

Still, does the deployment of the National Guard make sense?  Maybe, given the new CBP numbers about the uptick in illegal border crossings.  Moreover, Government Executive magazine reports:

“Federal agents on the front lines of the U.S.-Mexico border are “excited” about the forthcoming deployment of the National Guard to assist them in their mission, according to the employees’ union, with officials noting that the extra personnel will help offset their being “woefully understaffed.”

And it is true that conducting “aviation, engineer, surveillance, communications, vehicle maintenance and logistics support” activities in a real-world situation could enhance the Guard’s training and readiness for warfighting duties.  Yet cost is still a factor: Government Executive says that “Bush’s initiative cost $1.2 billion over two years and required 30,000 guardsmen to fill the 6,000 slots.”

Obviously, this deployment is smaller than Bush’s and, for now, much shorter.  I’m still skeptical as to whether it is necessary, but – since it is going forward going forward – I would recommend careful and recurrent assessment to ensure that the need continues to exist.  At the same time we ought to be figuring out how to fully return border security responsibility to civilian agencies like the CBP and send the military home.

As David Aguilar, the former CBP commissioner wrote in The Atlantic:

Mr. Aguilar

“Deployment of National Guard troops to support the Border Patrol and ports of entry will bolster enforcement efforts. Border collaboration with Mexico, enhancing detention, hiring more immigration judges, developing technology capabilities, investing in infrastructure build outs, and working with sending countries-of-origin all play a role in securing the border. Managing the border is a complex challenge. Congress and the administration must be comprehensive in their approach to border security.” 

Add immigration reform to Aguilar’s list and you have the kind of comprehensive approach that makes sense to me.  Walls and military deployments are merely band-aids, not complete solutions.  While the band-aid may be necessary for the moment – as done in previous administrations – it is important that efforts continue to address the challenge in a broader context.  We can keep putting band-aids on and ripping them off….but at some point we have to find – and begin to incorporate – comprehensive strategies that manage immigration effectively.  

But, as we like to say on Lawfire, check the facts, assess the law and the arguments, and decide for yourself!

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