'Militarizing' the Border? Not Really.

By Dan Cadman on April 5, 2018

Following sharp criticism of President Trump for apparent backtracking on his pro-enforcement stance on immigration, evidenced by his signing into law the damaging Comprehensive Budget Act of 2018 (see here and here), he barraged the nation with tough-talking tweets on Easter Sunday.

This was followed by a cabinet meeting on immigration matters and a Tuesday announcement that he intends to use the U.S. military for southern border enforcement purposes until the wall he campaigned upon is complete — even though he signed a budget bill that provided a pittance for it and includes language that indicates it is for barriers and technology — not a wall, specifically.

Almost immediately after the president's announcement, Vicente Fox, former president of Mexico, hectoring moralist about all things immigration on our side of the border, and general gadfly, initiated his own tweet raising the alarm at the president's plan:

Mexico's ambassador the United States also chimed in, asking for a "clarification", while making clear that his country would not welcome such a move.

The egregious hypocrisy of these two men is beyond belief. Mexico's military routinely operates directly at the border between our two countries — and on multiple occasions, some of them very well documented, armed Mexican troops have engaged in illegal incursions onto our soil, going so far as to draw their guns on our agents while on our side of the border on at least one occasion (see here, here, and here).

But the two needn't have worried. Even though it was clear from the context that the president did indeed mean members of our armed forces, I found myself wondering how, exactly, this might work, because the Posse Comitatus Act (PCA), codified at 18 U.S.C. Section 1385, specifically prohibits army and air force servicemen from being used for civilian law enforcement purposes inside the United States. Happily, someone apparently raised the thorny issue of the PCA with the president, as a consequence of which we now have a clarification that it will be activated National Guard members, not the U.S. military per se, who will be performing border duties.

It's an important distinction, perhaps lost on many, but such troops may be activated under different sections of the United States Code. For instance, when activated to serve alongside army regular and reserve forces in places like Iraq or Afghanistan, they are in fact indistinguishable from other members of the U.S. military. But they can be activated in other ways— such as that now contemplated — that preserves a bright line in their status. (This is true, for example, when a governor activates the National Guard units within his state, but it can also be done at the federal level.)

It won't be the first National Guard deployment to the border; this has happened several times previously. It's also important to note that activated National Guard members are still prohibited from serving in a proactive law enforcement function. They cannot, for example, conduct themselves as Border Patrol agents and effect detentions and arrests of individuals crossing the border illegally.

What they can, and most certainly will, do is provide innumerable support services in order to free agents from other administrative duties to go on the line. They also bring with them military-grade technical items — sophisticated forward-looking radar, night vision equipment, etc. — that will supplement what is now available to the Patrol.

A question that immediately springs to my mind is this: Who pays? In every past use of the National Guard of which I'm aware, it was done on a cost-reimbursable basis, meaning that the Border Patrol and its mother agency and department ended up footing the bill. If this remains true for the instant deployment, you can be sure that it will be a matter of robbing Peter to pay Paul, and some other important item — training, purchase of new vehicles, something — will be put on the back burner in order to defray the costs of the deployed National Guard units, and they don't come cheap.

Finally, I find myself asking what the point of it all is if there isn't any place for the additional detentions that would likely come from such a beefed-up effort. That budget bill I mentioned earlier actually took away available bed space funding for the Border Patrol's sister agency, Immigration and Customs Enforcement (ICE).

If this isn't going to be an exercise in futility, with a lot of behind-the-scenes catch-and-release going on, it would be helpful for the public to know the devil behind all of those important details.