Donald Trump
Credit: Gage Skidmore/Flickr

On Tuesday, Trump said that he would send the military to guard our Southern border until he gets money to build his wall and congress agrees to his xenophobic changes to our immigration system. Then on Wednesday, he signed an order to send National Guard troops to the border. But there are legal reasons why that won’t do what he and many of his supporters likely assume.

The reason Trump can’t use military forces as border security is because, in 1878 congress passed the Posse Comitatus Act, which bars the U.S. military from operating on American soil in a law enforcement capacity. That is why the president turned to the National Guard. But to do so, he is using Title 32 authority. Alexa Liautaud explains:

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

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.

Notice that control of the National Guard remains with the states, who can expand their powers. That is what prompted this tweet from Ted Lieu (D-CA):

The states that are most affected by this will be California, Arizona, New Mexico and Texas. It will be the governors who decide whether or not to cooperate with Trump. There are no doubts about what Texas Governor Gregg Abbott will do. But this could set up an interesting dilemma for New Mexico’s Susana Martinez and Arizona’s Doug Ducey—both of whom are Republican. They also both represent states with large Latino populations and governor’s elections on the ballot this November (Martinez is term-limited but Ducey is running for reelection).

In other areas of the country, some governors are already speaking up about their intentions.

It is very likely that the use of these National Guard troops could turn into the kind of battle we’ve seen between this White House and local jurisdictions over so-called “sanctuary cities.” Once again, the law will stand on the side of those who refuse to cooperate.

Nancy LeTourneau

Follow Nancy on Twitter @Smartypants60.