Trump's Deployment of Troops to the Border Is Not a Constitutional Crisis

New York National Guard members Spc. Steve Hammann, left, of Buffalo, N.Y., and Pfc. Jamie Kilbury, center, of Lockport, N.Y., get an up-close look at the border (fence at left), with Border Patrol agent Sean King, right, near the Arizona-Mexico border on Friday, Jan. 19, 2007 in Sasabe, Ariz. (AP Photo/Ross D. Franklin)


Yesterday, President Trump made good on a promise and signed an order directing the Secretary of Defense to activate National Guard units to assist with security.


SUBJECT: Securing the Southern Border of the United States

1. The security of the United States is imperiled by a drastic surge of illegal activity on the southern border. Large quantities of fentanyl, other opioids, and other dangerous and illicit drugs are flowing across our southern border and into our country at unprecedented levels, destroying the lives of our families and loved ones. Mara Salvatrucha (MS-13) and other deadly transnational gangs are systematically exploiting our unsecured southern border to enter our country and develop operational capacity in American communities throughout the country. The anticipated rapid rise in illegal crossings as we head into the spring and summer months threatens to overwhelm our Nation’s law enforcement capacities.

2. The combination of illegal drugs, dangerous gang activity, and extensive illegal immigration not only threatens our safety but also undermines the rule of law. Our American way of life hinges on our ability as a Nation to adequately and effectively enforce our laws and protect our borders. A key and undeniable attribute of a sovereign nation is the ability to control who and what enters its territory.

3. Our professional and dedicated U.S. Customs and Border Protection agents and officers, U.S. Immigration and Customs Enforcement officers, and other Federal, State, and local law enforcement personnel work tirelessly to defend our homeland against these threats. They risk their lives daily to protect the people of this country. Theirs is a record of dedication and sacrifice, meriting the unwavering support of the entire United States Government.

4. The situation at the border has now reached a point of crisis. The lawlessness that continues at our southern border is fundamentally incompatible with the safety, security, and sovereignty of the American people. My Administration has no choice but to act.

5. The Department of Defense currently assists other nations in many respects, including assisting with border security, but the highest sovereign duty of the President is to defend this Nation, which includes the defense of our borders.

6. The President may assign a mission to the Secretary of Defense to support the operations of the Department of Homeland Security in securing our southern border, including by requesting use of the National Guard, and to take other necessary steps to stop the flow of deadly drugs and other contraband, gang members and other criminals, and illegal aliens into the country. The Secretary of Defense may use all available authorities as appropriate, including use of National Guard forces, to fulfill this mission. During the administrations of Presidents George W. Bush and Barack Obama, the National Guard provided support for efforts to secure our southern border. The crisis at our southern border once again calls for the National Guard to help secure our border and protect our homeland.

Therefore, by the authority vested in me as President by the Constitution and the laws of the United States, including section 502 of title 32, United States Code, and section 301 of title 3, United States Code, I hereby direct as follows:

Section 1. 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.

Sec. 2. The Secretary of Homeland Security shall work with the Secretary of Defense to provide any training or instruction necessary for any military personnel, including National Guard units, to effectively support Department of Homeland Security personnel in securing the border.

Sec. 3. The Secretary of Defense and the Secretary of Homeland Security, in coordination with the Attorney General, are directed to determine what other resources and actions are necessary to protect our southern border, including Federal law enforcement and United States military resources. Within 30 days of the date of this memorandum, the Secretary of Defense and the Secretary of Homeland Security, in coordination with the Attorney General, shall submit to the President a report detailing their findings and an action plan, including specific recommendations as to any other executive authorities that should be invoked to defend the border and security of the United States.

Sec. 4. Any provision of any previous proclamation, memorandum, or Executive Order that is inconsistent with the actions taken in this memorandum is superseded to the extent of such inconsistency.

Sec. 5. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

From some of the caterwauling, one would have thought the very end of the republic was nigh. The winner might be the sweaty, panty-twister from, naturally, a Harvard Law grad If Trump Violates Posse Comitatus, We’ll Have To Pray We Still Have Generals Loyal To The Republic.

I suppose it wasn’t going to be long before Donald Trump casually tripped the wires of one of most basic protections against despotism: the Posse Comitatus Act. Signed by President Rutherford B. Hayes, Posse Comitatus prohibits the deployment of regular military to enforce domestic laws.

It’s military takeover repellent. At the point where troops are marching through your town to enforce… zoning laws… by leveling your house, you are living under a military dictatorship whether you call it one or not.

I don’t expect that President Trump understands that law, or cares why it’s there. He’s pissed that Ann Coulter didn’t send him an Easter card, and so he’s blurting random, untrue things about immigrants again. He seems to be under the impression that there is some kind of “caravan” of brown people bearing down on us from Mexico. Maybe they’re being led by Charlzie Theron down the Fury Road. Honestly who can know what’s in this man’s head.

Make no mistake, Trump intends to use the military to enforce domestic regulations, because he is tired of going through the process that is required of his domestic enforcement agencies. It is the very democratic principles that Trump abhors that’s making him think about using the military to enforce his policy goals at the point of a gun. CONGRESS WON’T FUND HIS WALL. Instead of working with and dealing with the legislative branch of government, he wants to use his powers as commander-in-chief to make it happen over their objection. That’s not “like” a military dictator, that IS military dictatorship.

This is how despots start to transition a civilian government into a military one. If he does this, it should be an impeachable offense — and we should pray that we still have generals loyal to the Republic and not the strongman in the White House.

And if he does this and it doesn’t result in immediate impeachment — if we let the bigotry of the Republican base blind us to this obvious violation free government, we’ll deserve every horrible thing we’re going to get.

What is it about lefties perpetually hoping for a coup d’etat or mutiny by the Armed Forces? In 2004/5 there must have been a dozen op-eds in the WaPo and NYT encouraging the “generals” to refuse to carry out Bush’s orders in regards to Iraq (this is from 2009 but refers to earlier, vanished, posts by me on the subject).

What is sort of ironic here is Posse Comitatus was a revolt against the Reconstruction policy of President Ulysses S. Grant. Unable to get southern sheriffs to protect black citizens, or southern grand juries to indict, or southern judges and juries to punish even the most heinous of KKK activity, Grant had the US Army enforce laws that allowed newly freed black citizens to engage in politics and commerce. With the readmission of the Confederate states to Congress, pressure was brought to end the use of federal troops in law enforcement. So when you are cheering for Posse Comitatus, keep in mind the history of what you are cheering for.

A more measured response, but somewhat the same, The Military, the Mexican Border and Posse Comitatus: Four Key Takeaways. The assumption is that Trump is bound and determined to violate the law.

Let’s clear away some of the underbrush.

Posse Comitatus and the use of US military in border security is nowhere near as cut-and-dried as these folks are trying to make it. Both George Bush and Obama did it.

2006: In a national address, President George W. Bush announces plans to deploy 6,000 troops
Name: Operation Jump Start
When it happened: June 2006-July 2008
Cost: $1.2 billion
Who was deployed: 6,000 National Guard troops deployed to California, Arizona, New Mexico and Texas.
Assists with undocumented immigrant apprehensions: 186,814 (11.7% of the total apprehensions on the Southwest land border in that period)
Assists with drug seizures: 316,364 pounds of marijuana (9.4% of all marijuana seized on the Southwest border in that period)

2010: President Obama orders the deployment of up to 1,200 troops to the US-Mexico border
Name: Operation Phalanx
When it happened: Initially from July 2010-June 30, 2011, then extended
Cost: $110 million for the first year
Who was deployed: Initially 1,200 National Guard troops. In 2012, the number of troops was scaled back as the focus shifted from boots on the ground to aerial surveillance.
Assists with undocumented immigrant apprehensions: 17,887 in the first 11 months (5.9% of the total apprehensions on the Southwest land border in that period)
Assists with drug seizures: 56,342 pounds of marijuana in the first 11 months (2.6% of all marijuana seized on the Southwest border in that period)

Congress has written a “drug enforcement” exception into the Posse Comitatus Act and, if you look at President Trump’s order, you’ll see that drug trafficking is a major reason for the deployment. This is how troops were used during the Bush administration.

What can the military do? The is a Congressional Research Service report on Posse Comitatus and the border. Good reading. This is the current law on what the military can do in cooperation with law enforcement.

They can provide logistics for the Border Patrol. They can transport Border Patrol agents. They can transport detained illegals. If it was desired, the military could operate border checkpoints checking IDs of people who were trying to enter the country (this implies they’d have the requisite training and an ICE supervisor). I’ll be the first to admit that we probably don’t want to do that, but turning people away is not a law enforcement operation. They can patrol, without any restriction, within 25 miles of the border. They can locate illegals crossing the border, report them, and shadow them until the Border Patrol arrives. They can do intelligence and reconnaissance. They can loan equipment to or operate it for the Border Patrol. The major role will be to allow the Border Patrol cover more territory, more effectively and without risking the lives of agents.

There are ways the envelope could be pushed. If you send one Border Patrol agent out with five armed infantrymen, that one agent can arrest a largish group of illegals without any fear of injury. The military people aren’t making the apprehension, they are just heavily armed bystanders, so there is no violation. The illegals probably aren’t familiar with what the troops can and can’t do.

Having said all that, I think it is safe to think the envelope will be pushed on this deployment. The whole issue of using federal troops to secure the border is actually unexplored territory. Is apprehending and deporting illegals at the border really a law enforcement function? Or is it an administrative act because it does not lead to prosecution? Interestingly, the Posse Comitatus Act doesn’t penalize soldiers for breaking it, it only makes illegal ordering them to do it. And then it doesn’t have a set penalty. So how does that work? And who is going to bring the prosecution?