by Kaiya Lyons
The Associated Press reported today that the Secretary of Homeland Security has drafted a memorandum that would mobilize thousands of National Guard troops in 11 states "to perform the functions of an immigration officer in relation to the investigation, apprehension and detention of aliens in the United States." Although White House Press Secretary Sean Spicer has denied the existence of any efforts to use the National Guard to deport undocumented immigrants, the plans outlined in the memorandum give rise to serious concerns about the degree of executive control over the National Guard. To what extent can the White House use the power of the National Guard to enforce federal immigration laws?
Constitutionally, the National Guard exists under continuing state control, but may be used by the federal government to “execute the laws of the Union, suppress insurrections and repel invasions.” Therefore, there are three legally distinct ways the National Guard may be employed. First, the governor of a state may authorize the deployment of troops under state law. Second, a state governor and the president may agree to deploy National Guard troops within that state for a primarily federal purpose under Title 32 of the U.S. Code. Finally, the president may unilaterally mobilize the National Guard for a federal purpose authorized by federal law under Title 10 of the U.S. Code and pursuant to the restriction of military enforcement of domestic policies within the United States under the Posse Comitatus Act.
Indeed, deploying National Guard troops in consort with state governments to assist in border security operations is not unprecedented. In recent history, both Presidents Bush and Obama have positioned National Guard troops on the United States-Mexico to provide administrative, observational, and logistical support to Border Patrol agents. For instance, in 2006, former President George W. Bush initiated “Operation Jump Start,” which mobilized 6,000 National Guard troops in California, Arizona, New Mexico and Texas to help install border barriers, provide training and assist with border surveillance. In 2010, former President Barack Obama announced the deployment of 1,200 National Guard troops on a similar assignment to support the organizational functions of Border Patrol.