justsecurity
Mark Nevitt
April 4, 2018
[excerpt]
https://www.justsecurity.org/54529/military-mexican-border-posse-comitatus-key-takeaways/President Trump recently announced that “we’re going to be guarding our border with the military†until a border wall between the U.S.-Mexico border can be completed. That completion date remains uncertain in light of so many questions governing the wall’s funding and construction. The president has apparently discussed the military’s movement to the border with his top national security advisors to include Defense Secretary Jim Mattis. It appears that Trump will release a proclamation directing the Department of Defense and the Department of Homeland Security to work with governors to deploy National Guard troops to the southwest border to assist the Border Patrol in combating illegal immigration. Nevertheless, questions remain: What parts of the military will be used?; Who is paying for this? What is the legal authority and what will they be doing? Nevertheless, I want to highlight four key initial takeaways to focus your attention on the core legal issues as a “militarized border†implementation plan develops. While it is too simplistic to state that the “president can or can’t do this†– he faces enormous legal challenges and restrictions that will likely thwart his aspirations.
First and foremost, if the president orders federal active-duty military personnel to provide direct support to law enforcement or operate as the functional equivalent of a domestic law enforcement agency on the border, the 1878 Posse Comitatus Act (PCA) applies, which prohibits such activity. In its present form, the law states:
Whoever, except in cases and under circumstances 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.
