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The National Guard can’t fulfill Trump’s dreams for border security

Under federal law, troops can’t detain immigrants or enforce immigration policy, at least not without the special approval of Congress.

President Donald Trump’s dreams of using the military to enforce immigration took shape on Wednesday when the Department of Homeland Security announced that National Guard troops could be deployed to the southwest U.S. border as early as that night.

The announcement followed weeks of repeated calls from Trump for U.S. military troops to deploy. “We’re going to be doing things militarily,” Trump said at a lunch on Tuesday with leaders of Baltic states. “Until we can have a wall and proper security, we’re going to be guarding our border with the military.”


But under federal law, troops can’t detain immigrants or enforce immigration policy, at least not without the special approval of Congress. Homeland Security Secretary Kristjen Nielsen confirmed as much during the press briefing on Wednesday. When Fox News’ John Roberts asked Nielsen if the troops would actually enforce immigration policy, Nielsen said not “as of now.”

"I think he may have believed … that this would be something akin to a very visible force along the border, which is exactly what it cannot be."

“As of now” carries a lot of weight. While federal restrictions, including the Posse Comitatus Act, ban the military from domestic law enforcement, the Trump administration plans to use another provision in the U.S. Code called Title 32 to circumvent that. The law allows the government to mobilize and fund the National Guard’s presence at the border — but hand over control to the states, which can expand the National Guard’s powers beyond what the federal government can order. Nielsen added that she had spoken to governors from the states along the border: California, New Mexico, Arizona, and Texas.

Rebuked by Congress which allocated a mere fraction of the $25 billion Trump wanted for the border wall in the spending bill, the president turned to the U.S. military in the last several weeks to push his anti-immigration agenda. But without approval from governors under Title 32, military presence at the border would likely look much different than Trump appears to have envisioned.


“I think he may have believed — and certainly a lot of his supporters probably believed — that this would be something akin to a very visible force along the border, which is exactly what it cannot be, and I would venture to guess will not be,” Todd Weiler, a former Assistant Secretary of Defense and an Army combat veteran, told VICE News.

Instead, National Guard support would likely come in the form of aviation back-up, ground vehicles for night vision capabilities, and technical assistance, like training, according to Weiler.

Trump also called his plan “a big step.” But former Presidents Barack Obama and George W. Bush both used Title 32 to activate the National Guard’s support for border security. The troops, however, didn’t directly enforce immigration. Instead, they provided technical and aerial assistance, like spotting border crossers, and assisting in criminal investigations.

In fact, Bush’s “Operation Jumpstart” — which Nielsen said Trump’s plan would most closely resemble — specifically prohibited the military from detaining immigrants. Mexican officials said on Wednesday night that Nielsen told them that the National Guard at the border won't be armed though. She didn’t provide any more details on how many troops would be deployed, how long their deployment would last, or the cost of the operation.

Tennessee National Guard Sgt. Phillip Williams of Gatlinburg stands guard near the Mexican border in Yuma, Arizona, on March 2, 2007. (AP Photo/John Partipilo, Pool, File)

Weiler said that the Department of Defense would likely foot the bill for whatever Trump does, which may decrease funding levels for other missions that the National Guard had planned, like hurricane disaster relief or supporting overseas deployments. On Wednesday, National Guard spokesman Kurt Rauschenberg wouldn’t answer questions about whether Trump’s plan would impact other National Guard missions and referred questions back to the White House.


Technically, the president could ask Congress for special authorization to expand the powers of the National Guard or allocate more funds to the Department of Defense to accommodate the mobilization of troops. But with the Department of Defense being allocated its largest budget in history, and Congress’ cold disposition on the wall in general, lawmakers likely wouldn’t bite.

On top of that, the Department of Defense is already assisting with border security, spokeswoman Dana White told reporters on Tuesday night.

“There are a number of ways the Department of Defense is already supporting the DHS border security mission,” she said. “We are still in consultation with the White House about ways we can expand that support.”

Aside from the logistics, immigration advocates say that Trump’s plan to militarize the border not only fuels paranoia, it’s also not necessary considering the decline in border crossings, which hit their level lowest in 46 years, according the U.S. Border Patrol.

Editor's note 4/5/18 10:12 a.m. ET: This story has been updated to reflect that Mexican officials said the Secretary of Homeland Security told them National Guard at the border wouldn't be armed.

Cover image: President Donald Trump speaks at a news conference with leaders of Baltic states in the East Room of the White House in Washington, Tuesday, April 3, 2018. (AP Photo/Andrew Harnik)