Explainer: Is the President Allowed to Mobilize National Guard for Immigration Raids?

WASHINGTON — White House officials insisted Friday that they were not imminently planning to utilize National Guard troops to round up unauthorized immigrants. But a draft memo obtained by the Associated Press did indicate that at one point, someone in the administration had considered the idea.The proposal, which the AP posted online, suggested mobilizing up to 100,000 National Guard troops across 11 states to work as immigration officers, seeking out and detaining unauthorized immigrants.If President Donald Trump wanted to mobilize the National Guard against civilians, would he be able to? And have members of the National Guard ever helped to enforce immigration laws before? Here’s what you need to know:Is the president allowed to mobilize members of military for law enforcement?Yes — but only under certain limited circumstances.Generally, National Guard troops report to the governor of their state, not the president. If Texas Gov. Greg Abbott wanted to order members of the Texas National Guard to start carrying out immigration raids alongside Immigration and Customs Enforcement agents, he could. So the quickest way for Trump to accomplish a wide-scale mobilization would be to ask governors to issue the order.If a governor refused, it would be difficult for Trump to overrule that governor and federalize the National Guard anyway. The president is only allowed to order members of the National Guard to carry out domestic police functions under extremely limited circumstances. Those limitations date back to the Posse Comitatus Act, signed in 1878.One of the few examples where the president was allowed to overrule the governor’s wishes when it came to the National Guard acting as police was in 1957, when President Dwight Eisenhower federalized the Arkansas National Guard to help nine black students integrate into a previously all-white high school in Little Rock. In that case, he used an exception to Posse Comitatus called the “Enforcement Acts,” which allow the federal government to intervene in cases when the states refused to protect African Americans’ rights to vote, hold office, and carry out other constitutional rights.What does “posse comitatus” mean?The term, which has origins in Latin, translates to “the power or the force of the country.” In English common law, it meant that sheriffs or other local law enforcement agents were allowed to conscript able-bodied men in the region to help keep the peace and enforce the law generally. (It’s also the name of the episode that closed season three of The West Wing.)Have members of the National Guard been involved in immigration before?Yes. In 2006, President George W. Bush ordered 6,000 National Guard members to help secure the U.S.-Mexico border by providing additional surveillance and training full-time border patrol officers. That order was carried out as Operation Jump Start. The governors of the four states involved in the operation — Arizona, California, New Mexico and Texas — all signed off on the plan. The members focused on surveillance and some construction, but they all operated under extremely limited rules of engagement and did not generally carry out any duties in the realm of apprehending or arresting individuals crossing the border.Former President Barack Obama also deployed National Guard troops to serve along the border in 2010. Once again, those troops were not authorized to make any individual arrests.There is no precedent for members of the National Guard deliberately seeking out and apprehending unauthorized immigrants.  Continue reading...

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