The president elect has suggested over and over that he will declare a national emergency in order to use the U.S. military to enforce immigration laws and help with a yet to be detailed ‘deportation force’.

 I did a little research to try to figure out whether using the military in that was is legal or not. Here’s what I found:

The President has limited authority to use the U.S. military for domestic law enforcement due to legal restrictions like the Posse Comitatus Act of 1878.

Posse Comitatus Act

The Posse Comitatus Act is a federal law enacted in 1878 that limits the use of the U.S. military in enforcing domestic laws. Its purpose is to keep a clear distinction between civilian law enforcement and military operations.

Here are some of the details with that law:

The PCA prohibits the use of the military to enforce domestic laws unless explicitly authorized by the Constitution or Congress and specifically prohibits the military from being used for:

  • Arrests
  • Searches and seizures
  • Investigations
  • Crowd control
Exceptions to the PCA

The President can deploy the military domestically in specific circumstances to enforce the Insurrection Act which lets the President to use federal military forces to:

  • Suppress insurrection or rebellion.
  • Enforce federal law when local authorities are unable or unwilling to do so.

The Insurrection Act also would apparently let the military (under some circumstances) help Customs and Border Protection in a support role, providing surveillance, logistics, and other non-law enforcement activities.

For example:

  • Presidents have deployed the National Guard to help with border security under Title 32 of the U.S. Code, which allows states to use their National Guard forces in coordination with federal missions.
  • Active-duty military personnel have been used at the southern border for non-law enforcement roles, such as erecting barriers or providing technical help.
National Guard

The National Guard operates under dual state and federal authority. Governors can deploy the National Guard for law enforcement within their states. When federalized, the National Guard is subject to the same restrictions as active-duty military forces.

This is an important distinction in the event that the national guard in a state like Texas is federalized and tasked with domestic law enforcement actions.

Next week I’ll do a dive into what it would take and what the boundaries are for presidents to declare martial law to exercise otherwise illegal actions.

 

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