Lawfare Daily: Deploying the Military at the Southern Border, with Chris Mirasola

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[Intro]

Chris Mirasola: I think what we've seen in Trump's public statement suggests a much more robust use of the military, actually going forth and perhaps arresting folks at the border, potentially even detaining folks for some period of time. And like I said, those are all necessarily law enforcement functions, which would be quite different from what we've seen so far.

Benjamin Wittes: It's the Lawfare Podcast. I'm Benjamin Wittes, editor-in-chief of Lawfare, with Chris Mirasola of the University of Houston Law Center.

Chris Mirasola: Once we get used to even relatively more action at the southern border, it becomes practically, and I also think just politically easier to use the military in aspects of daily life within the United States where we haven't seen a substantial role for the military in at least quite a long time.

Benjamin Wittes: Today we are talking domestic deployment of the military at the southern border. Trump has promised it. Everybody is afraid of it. What's truth? What's fiction?

[Main Podcast]

So, let's start with the president's tweet the other day or the president-elect’s tweet the other day. Somebody I forget who said that he was gonna declare a national emergency and use the military to, you know, to do the mass deportations and I'm doing this from memory, so correct me if I get the details wrong…

Chris Mirasola: No, so far perfect.

Benjamin Wittes: And he quote tweeted it with, like, a right, or absolutely, or...

Chris Mirasola: I think it was like true with three exclamation points. All in caps in classic fashion.

Benjamin Wittes: Right? It's extra true.

Chris Mirasola: Extra true. That's correct.

Benjamin Wittes: And what he didn't mention is that there already is a national emergency and that, you know, to the extent that there's border enforcement going on, it already does have military support. So let's, before we get to what Trump is planning to do and what the legal authorities are for it, let's pause a moment over the status quo, right? What is the current legal regime that is governing, not immigration, but border enforcement stuff.

Chris Mirasola: Fantastic. Right. So there, you're totally right. There is a national emergency right now about the drug trafficking crisis. It is generically stated, so it's not with respect to the southern border in particular. But with that said, it makes available to the secretary of defense, a statutory authority to bring reservists, including National Guard folks, from an inactive to an active duty status much more quickly than you can under, like, a steady state kind of a situation.

And the military folks, of which there are about 2,000 who have been mobilized under that statutory authority, are all at the southern border, and they're all supporting CBP, and they've been operating in this fashion for the entirety of the Biden administration. They were operating in this fashion for the entirety of the Trump administration. And indeed, there have been military at the southern border supporting the Department of Homeland Security under a national emergency kind of a framework or otherwise, for most of the past two decades.

As you say, no surprise whatsoever that some number of military are going to be at the border supporting DHS's immigration enforcement efforts.

Benjamin Wittes: So is it fair to conclude from that, that the proper amount of freakout associated with—I want to calibrate people's freakout levels here—that the mere fact of declaring a national emergency and using the military involves exactly zero marginal freakout on its own terms?

Chris Mirasola: Absolutely, correct. That's right.

Benjamin Wittes: All right, so let's talk then about what would be different, under presumably the national emergency as Trump describes it, and what added authority declaring a national emergency gives you, if any.

Chris Mirasola: Great. Yeah. So I think there are two ways in which what we know of his plans would be quite different from kind of the steady state situation that we've seen over the past two decades.

So, first is using the military for law enforcement actions, right? So even in the Trump administration, the National Guard who were sent to the border weren't doing law enforcement functions. This was notwithstanding the fact that they were in this like weird hybrid duty status where they could do law enforcement functions, right?

Because as a baseline proposition, military personnel can't enforce the law—and that's because of a statute called the Posse Comitatus Act—unless there is a constitutional or statutory exception. There is a particular weird personnel mobilization authority, under which the National Guard, in particular, can remain in their state status and get around the Posse Comitatus Act while still doing a federal mission. It's a gigantic loophole. It's a significant problem.

But putting that problem to the side, even in the Trump administration, right, the National Guard who were in this status weren't doing law enforcement functions. Everything that we've seen suggests that there, at least some number of National Guard will likely be doing a law enforcement function in this second Trump administration

Benjamin Wittes: And pause there. Yeah, first of all, why do we know this? and secondly, what is functionally the difference between a National Guard performing a law enforcement function and National Guard performing some other function in support of a law enforcement function, which is what they've been presumably doing so far.

Chris Mirasola: That's right. Great. So a couple of things. So one, I think we can kind of read between the lines of how he's thinking of using the military to support these law enforcement functions, right? So he's been talking about using the military to arrest and detain migrants. So those are all necessarily law enforcement functions.

Something that's not a law enforcement function that the National Guard and other military have been doing in the past, right? So a few examples. There are historically, frequently, been military in, kind of like a Jeep kind of a set up. They have really high powered binoculars. They're stationed along the border at some distance from the Mexican border, and they're just looking.

You know, do they see someone crossing the river? Do they see someone crossing the border? If they see someone, they get on, effectively, the phone with the CBP agent in their sector and say, hey, I just saw four, you know, four folks come across the border, you know, right over here, the CBP agent comes and arrests them, right? And then brings them over to a CBP or ICE detention facility to detain them, right?

So the National Guard folks, the military folks, are not doing any of the actual arresting, right? They are just doing the kind of detection and monitoring.

Benjamin Wittes: They’re just doing the surveillance.

Chris Mirasola: That's right. Exactly, right. And so that's what the military has traditionally done at the southern border. I think what we've seen in Trump's public statement suggests a much more robust use of the military: actually going forth and perhaps arresting folks at the border, potentially even detaining folks for some period of time. And like I said, those are all necessarily law enforcement functions, which would be quite different from what we've seen so far.

Benjamin Wittes: All right, there is this statute, the Posse Comitatus statute, that says you're not allowed to use the military for law enforcement purposes unless there's a statutory or constitutional permission. So what is the statutory or constitutional permission for this use?

Chris Mirasola: Yeah, so this is fantastic because we actually don't have to look for either of those permissions for these National Guard folks, because they get to get around the statute entirely. So the Posse Comitatus Act applies to the Army, Navy, Air Force, Marines, and Space Force, now, as of 2021.

Benjamin Wittes: I just want to say that the Space Force application is really important because we've got, you know, all kinds of law enforcement activities going on in orbit, and, you know, you don't want the military enforcing the law up there.

Chris Mirasola: You don't! No, you don't! No, that would be a terrible Star Trek episode. The Guardians don't enforce the laws. It's really one of my favorite revisions to the Posse Comitatus Act.

In any event, so, these National Guard folks, when they're in this hybrid duty status, where they remain part of their state militia, but they're doing a federal mission, they're not actually part of the armed forces. They're not part of the Army, the Navy, or otherwise. And because they're not part of the armed forces, the Posse Comitatus act doesn't apply to them.

This is like, as I said, a gigantic loophole, right? Because there are hundreds of thousands of National Guard folks in the United States. They're often tied up in any number of other missions or, like, their civilian duties, but it does mean that there are a lot of people who could be mobilized and do law enforcement functions without anyone having to even think about the PCA.

Benjamin Wittes: And do we have an analog for that? Has anybody ever, you know, deployed the National Guard? Because we love to run around and say these things are unprecedented and then, you know, somebody drags out, well, there was this time in, you know, 1908 when, you know, so and so mobilized the National Guard for, so what's the history of using the National Guard for law enforcement functions? How unprecedented would this be, leaving aside whether it's legal, how unprecedented would it be for Trump to do that?

Chris Mirasola: Having National Guard in this hybrid duty status at the southern border would not be unprecedented. Having them at the southern border doing significant law enforcement functions would be unprecedented.

Benjamin Wittes: And when you say would be unprecedented, how contingent is that on it being the southern border? I mean, is this unprecedented that they would be doing law enforcement functions, or is it unprecedented that they would be doing law enforcement functions at the southern border?

Chris Mirasola: Beautiful. Yes, so it's law enforcement functions at the southern border in like the past 50 years, I would say. Get past 50 years and, honestly, my history isn't as good. I wouldn't be surprised if National Guard were, I mean, then, the militias were used for these kind of activities.

But there have been National Guard at the southern border in this hybrid status during the Bush, Obama, and Trump administrations. They were, as I said before, right, like, not doing much in the way of law enforcement functions. But they could have. So at least in like recent political memory using this kind of duty status for National Guard would not be particularly unprecedented.

Benjamin Wittes: All right. So, so far we have what seems like a fairly significant, but fairly sort of at-the-margins difference, right? We've always had them there, at least in recent memory. They've always been there in support of a law enforcement mission. But they haven't taken part in the law enforcement-y qualities of the law enforcement mission. Now they'll be able to do that.

Why does this distinction matter from a civ-mil relations point of view, or from an immigration policy? Is this something we should be running around like chickens with our heads cut off worrying about? Or is it, hey, this is a guy who ran on tougher immigration enforcement. He's got 2,500 people down there who can be just looking through binoculars, or who can be looking through binoculars and making stops. Why not use them? You know, what's your freakout meter on that?

Chris Mirasola: Yeah, so on, on this portion, it is, if we're on like a 1 to 10 scale, probably somewhere around like the 5 to 7 varieties. Like, not particularly high, I think.

Benjamin Wittes: Well, 7's pretty high.

Chris Mirasola: I guess 7 is on the, well, that's because, like, what remains unclear is the extent of the law enforcement mission that these National Guard folks will be given.

Benjamin Wittes: All right. So talk about the range of possibility here.

Chris Mirasola: Great, cause like you could imagine, on the lower end, the National Guard being used as like a second layer of defense. So you have CBP agents in a particular sector. They are the first line of defense in arresting folks as they're coming across the border and National Guard folks are there perhaps at the ready, nearby to provide an additional layer, right, of law enforcement support if they become overwhelmed, right? There was a history of relatively large, sometimes they were called migrant caravans, right?

Large groups of people coming to the border all at once, overwhelming the relatively small number of CBP agents that were at the border, right? That I think kind of, more, kind of reserve force kind of posture would give me a little bit less pause, right? It's been done in the past. It's not them being at the border all the time doing the first interface with these migrants.

On the high end, right, you could imagine something much more robust. You can imagine many thousands of National Guard taking primary responsibility for law enforcement functions along much more significant swathes of the border where the National Guard are tasked with detecting, and then detaining, for some indefinite amount of time, in a facility that's either, like a CBP facility that's run by military personnel or perhaps a temporary facility that the military has helped establish and perhaps we can get to that other kind of portion of the national emergency at some point, where again the military is tasked with the primary responsibility for containing, right, these migrants for, again, some indefinite period of time.

And there I think I will be much more concerned because there is much less history in the National Guard, or really any military personnel, doing any of these tasks, and so there's therefore less training, there's less familiarity, there's, the risk for something going wrong becomes much higher.

Benjamin Wittes: Although, military units do detention operations a lot, and they're mostly pretty good at it. A few notable exceptions over the last 20 years, but 25 years, but you know, mostly they're pretty good at running detention operations. Is there any particular reason to think that they would, and it's not like, you know, Homeland Security has run especially professional ones, right? Is there any particular reason to think that the military would do a worse job of it than DHS has done.

Chris Mirasola: I think if given the time that they need to set up these facilities, not necessarily. My fear is that they won't be given enough time to set up any of these facilities, right? That he's going to come into office, declare an emergency, and then day two, day three, say, fantastic. Military, you're going to establish six facilities holding facilities on your installations and they have to be up and running in a week

Benjamin Wittes: Yeah, that's a recipe for bad outcomes.

Chris Mirasola: Recipe for disaster, right? I mean it’ll like, so I think there is that possibility. It's also like the added complication that, though the military runs tension facilities pursuant to kind of military laws and regulations and authorities all the time, these migrant detention facilities would be subject to any number of immigration law, right, regulations, and laws, and court decisions, which frankly, I'd be surprised if anyone really at DOD knew very much about any of those ex ante.

Benjamin Wittes: There are consent decrees that have application.

Chris Mirasola: That’s right, right, right.

Benjamin Wittes: All right. So, let's move down into the detention space since we've kind of migrated—no pun intended—there anyway. One of the elements of what Trump is promising and he, frankly, conflates border security here with interior enforcement, right? Where they're going to do a giant roundup, and presumably a lot of that roundup is going to have an interior enforcement component, since the migrants actually don't congregate for any length of time at the border, right? You either catch them when they're crossing, or they show up somewhere else. And he's talked about having camps, which presumably are transitory facilities pending deportation.

How much is this the same issue, and how much is this a different issue?

Chris Mirasola: I think this is pretty significantly a different issue. So it's a different issue in a couple, in at least two regards, that occur to me, right? So, first is the question, right, to what extent, if at all, can the military assist with these interior rounding-ups, right, of migrants.

So the statutory authority that authorizes DOD to support CBP at the southern border is particular, both to the southern border, and to CBP. So it would not be available for DOD to assist ICE, for example, in going around New York or any other city and finding migrants to bring to a detention facility. So that legal regime is just, like, fundamentally different.

It's also different, right, if we're thinking about whether the president might direct the secretary of defense to establish detention facilities on a DOD military installation. There is a separate emergency military construction authority that I would expect, that the president makes available in his national emergency declaration.

This is the same emergency construction authority that Trump made available in his first term to build a border wall on military installations. And because of the very broad definition of military construction that prevails in Title 10, it would also include any, even like, you know, medium-term use substantial tent facility that they might want to establish to house migrants on a DOD installation.

Benjamin Wittes: So, really, we should think of two roundups, right? One is the roundup of people as they're crossing the border. That is presumably, it's not that much different from what's going on now, save that you would have National Guard being, perhaps the backup, but perhaps the front line in much larger numbers, and you would have DOD facilities where you could house people pending deportation.

Then a second roundup is the ICE interior stuff, presumably done in concert with state and local law enforcement, and that has no analog to what's going on now.

Chris Mirasola: That's right. Yeah. Not that I'm aware of whatsoever. Yeah.

Benjamin Wittes: All right. So let's talk about the authority to do these various building. So we're, your piece was really only about the border side. So, listeners bracket the whole interior enforcement side. That's a different conversation. So, separate issue. We're talking here only about the border.

I confess that I am a little bit skeptical that you issue an executive order day one saying, do all this stuff, you know, mostly, U.S. forces don't build big detention facilities overnight. Deployments actually take a lot of time unless you're, you know, it's like Iraq, Desert Storm or something, right? The military can act quickly, but it usually doesn't. And by the way, this is not a mission that the military is going to be super pumped about.

So what do you imagine, and let's leave aside litigation, which we'll get to in a minute, but day one, it's January 21st, the, you know, the Steve Miller press release slash executive order lands on Trump's desk. He signs it with a big flourish. There's a White House signing statement. And then what happens?

Chris Mirasola: Yeah. So I think, like you say, a lot of nothing for a significant period of time. And I think that's true both for sending more military to the border and potentially building detention facilities on a DOD installation.

Benjamin Wittes: All right, so let's talk about that in order. First of all, why does it take, you know, the president says military goes to the border to help with law enforcement and Posse Comitatus Act doesn't apply so they can arrest, every single illegal who comes across the border, go. Why does it not happen?

Chris Mirasola: Because you have to find these National Guard folks, right? And this is the trick, even if the president, like, invokes the Insurrection Act, which I know we haven't talked about, which is even, you know, an even faster way of getting folks onto active duty, but has a whole other set of problems.

National Guard folks, like, have a day job. And, you know, their day jobs, a) are hard to get out of, and you have to determine, like, whether they're amenable to being put on orders. The significant DOD missions also, like, just steady state, right, rely on the reserve component, and National Guard in particular, regularly, right? So a lot of these folks also have, like, regularly scheduled DOD federal missions that they're like planning on for the next, you know, X number of years so like it takes a certain amount of time just to find the people, right, in the requisite numbers?

Benjamin Wittes: And a certain number of time meaning two weeks, two months, two years? What’s the—

Chris Mirasola: Yeah, I think on the order of weeks. I think on the order of, like, days to weeks, because the added complication to the calculus is that under this weird hybrid status, you need the governor's consent to provide his or her National Guard to the federal government for a federal mission. So you're really only going to be looking at the states of, with a Republican governor, right?

So, your pool is smaller, right, of folks to look at. And so that's just going to take a couple of days of sorting out. Then you need DHS, or someone, to articulate, like, the particular duties that you want these military folks to do because even the most, you know, pro-MAGA Republican governor is gonna want to know what their National Guard are doing, like, in some significant level of detail before giving them up to the federal government to do a federal mission.

And I expect that will take a while as well, because you need enough people at DHS to be able to articulate, right, dear DOD, here are the five things that I want your National Guard to do down here at the southern border. And so I actually think that will probably take longer than finding the number of National Guard that they want to deploy to the southern border. And so, I think those are some of the practical reasons why. You have a big splash on day one, and you probably don't see an actual deployment for at least another couple of weeks.

Benjamin Wittes: And then, what about on the building side? I mean, you know, the president doesn't care about conditions of confinement. In fact, you kind of get the sense that, if it's a little bit cruel, that's not the worst optics in the world from his point of view. But, so you have a order to build a, you know, a tent city with razor wire and all that jazz.

Why is that a long term proposition, and how long do you think that takes realistically?

Chris Mirasola: Yeah, so I think, and I know we're not getting to litigation yet.

Benjamin Wittes: Yeah, no, we're, that's a whole, that's Lawfare, man. We don't mention litigation in passing here!

Chris Mirasola: Right but, like, I think that this takes even longer, right? So, the emergency construction statute that I think he'll make available, on its face, is really favorable to the DOD, right? It allows DOD to build without regard to any other provision of law. So, like, all of your, like, you know, EPA, it’s just, yeah…

Benjamin Wittes: Environmental statutes, right?

Chris Mirasola: All of those, all the usual red tape, right? You can throw out the window. You have to affirmatively throw them out the window, but that doesn't take, you know, forever. That's a short memo.

What takes longer, right, is like, alright, so, is, like, the U.S. Army Corps of Engineers going to, like, build the facility on their own, or are they going to bid this process out to have, like, a contractor build out the facility? I could imagine they want a contractor to build out the facility. They don't have to go through a competitive bidding process, but they do actually have to like bid it, right, to get someone to start doing the work.

If they do it internally, they have to, like, procure the materials to do all of this stuff. To procure the materials, you need to find the money within the DOD military construction budget, right? So you have to decide, okay, if we're going to spend a couple hundred million dollars to build this new city, what training facility are we no longer going to build? So we can take that money move it to this new purpose.

In the border wall context, that took a really long time, right? Because, you know, presumably they aren't going to want to piss off Greg Abbott, right, or another Republican governor, right, and take away projects on military installations in a friendly state.

And so, like, figuring out the, like, both mission impacts and the political calculus of finding the money, and then being able to actually deploy the money to do something, takes a substantial amount of time. How long in the end is kind of hard to know because litigation kind of, intervened even faster in the border wall context than like actually implementing much of any of this, but I would be shocked if it took less than a month.

Benjamin Wittes: All right, so let's talk about litigation then. Presumably when that executive order issues, the ACLU will tweet, we'll see you in court and raise a million dollars, and they will file, or some combination of groups will file immediate lawsuits. The statutory authorizations here are super broad, as I read them anyway. Why is litigation a particular threat here in terms of slowing things down? 

Chris Mirasola: Right, so I don't think it's a threat ultimately, right? So I would be shocked if, once this is appealed to the Supreme Court, that the Supreme Court decides that any of these contemplated uses of these authorities is contrary to, like, as you say, this very broad text. I don't think that's going to happen.

But there are, I think, two things that slow this down. So first is that I think it's relatively easy to find a judge at the district court level who would enjoin DOD from kind of continuing to engage in the construction process. That's what we saw in the border wall litigation process. And like, once you start that, right, like, litigation takes forever. You're many months out from even getting an appeals court, right, from allowing DOD to continue doing its thing while litigation is pending. And so I think that's the first kind of source of friction that results from the litigation.

The second is if you are DOD, and you want to succeed, ultimately, you need to create a factual record that is substantial enough that the Supreme Court or another court can point to it and say, this is a proper use of this very broad authority, right? And we saw this in the border wall context, any number of declarations and affidavits with relatively detailed information about migrant flows, the connection of these projects to a military mission, kind of, all of these, kind of, nitty gritty questions, right?

And the process of compiling that factual record itself takes a substantial amount of time. So I think even just like the prospect of litigation also slows down the process. Of course, right, and so that also turns on a question of, right, the extent to which senior DOD leaders want to give their subordinates the time to put together that process, right, how scared they are of that appellate review?

I have no idea what Pete Hegseth's relative, you know, risk tolerances is on these. I don't know if he knows what his relative risk tolerance is on these things.

Benjamin Wittes: I can venture the guess that he has not spent quality time thinking about this question.

Chris Mirasola: Yeah, right, I would agree. And so I think it's a little bit up in the air, how much of friction, right, that leads to the process, but I think it's at least a degree of friction.

Benjamin Wittes: All right. So when you put it all together, how soon does how much happen? Are we talking about six weeks and then we have the National Guard, you know, catching people, putting them in camps and, you know, helicopters flying the people in the camps back to across the border?

Or is it more like six months and things look kind of like they do now with some, you know, a few more National Guard doing a little bit more law enforcement-y stuff and by the way, some DHS facilities that have some, on some military base for, you know, detentions. What, like, how dramatically do you expect how much to change how quickly?

Chris Mirasola: Yeah, so I think within one to two months, you have some degree, probably not insubstantial, but also probably not, you know, 10,000, additional military at the southern border assisting in, perhaps, marginally more functions than they are currently, right? Assisting CBP with immigration enforcement. That's what I expect to see in like the, you know, in about a month from, you know, declaration of national emergency.

Benjamin Wittes: And this troubles you not very much? 

Chris Mirasola: Not particularly, no, no. And then listen, if I were them, and if this if, like, the bluster combined with the marginal increase in border enforcement leads to, like, significantly lower migrant flows at the southern border, I think there's a real world where, like, they declare victory, at least from a military involvement perspective, right? And move on to something else.

Benjamin Wittes: We called in the military and border crossings have dropped. Lots of people are saying they've never seen it this low. That's right.

Chris Mirasola: That's right. And I think it's actually relatively easy. I could imagine it being relatively easy to create that narrative, right? With fewer additional resources than we might expect.

Benjamin Wittes: Especially because the rate of crossings is not all that high right now and we're heading into a winter.

Chris Mirasola: Right, yeah, right. The like, the flip on popular sentiment regarding the economy kind of occurs to me at the moment, right, and I think, you know, I could see an analog, right, in this context.

Part of me would be quite surprised to see DOD building migrant detention facilities on a military installation in anything faster than six months. Between the litigation and the amount of time you need to actually put it together, and then the amount of time you need to figure out how the military would actually staff, those kind of facilities. It's complicated legally, logistically, like, you know, the chain of command perspective, just like in almost every regard, super painful.

So I'd be surprised to see much in the way of, kind of, that part of the equation in the first six months of the administration.

Benjamin Wittes: And so given your stated expectations. How concerned do you, I mean, you said your concern was sort of between a 5 and a 7. I mean, do you look at this and say the sort of public reaction is kind of an overreaction to this? Or do you say, hey, this is a significant change in U.S. use of the military and immigration and law enforcement purposes, people should be really concerned about this?

Kind of, what's your level of, what's your balance of, hey calm down, we're we've been doing a lot of this stuff for a long time anyway, and hey, this is a really important set of changes.

Chris Mirasola: I think that the prospect for immediate action is sufficiently low that I think the, kind of, level of freakout is a bit too high the moment. So I, yeah, I think that folks should be less concerned about what might immediately happen upon him kind of coming to office.

If I am wrong, so, like part of my 5 to 7 range of freak out is based on the risk that I'm wrong about what they're looking to do with the military, right? And like what they think is enough politically. Like, I have difficulty getting into his head.

So, I think that I am concerned that over, like, the medium term, over the course of four years, we might see much more significant uses of the military because they'll have more time to plan them out, and that would concern me.

Benjamin Wittes: And do you mean here at the border, or do you mean in, for example, dealing with protests, or dealing with interior enforcement stuff? When you're imagining more concerning domestic deployments, what are you thinking about?

Chris Mirasola: Yeah, so both, right? So, the muscles that you exercise by deploying the military and the National Guard for these law enforcement missions at southern border are pretty substantially the same ones that you need to use the military within the United States outside the immigration context.

And so I think it's kind of like a slippery slope concern, right? Once we get used to even relatively more action at the southern border, it becomes practically, and I also think just politically easier, to use the military in aspects of daily life within the United States where we haven't seen a substantial role for the military in at least quite a long time.

Benjamin Wittes: So let's talk briefly about the Insurrection Act. If you want to amplify this whole thing a little bit, you say Insurrection Act instead of national emergency, and we've got a different lens, legally, through which to look at the whole thing. What bearing does the Insurrection Act potentially have on this conversation and how concerned should people be about it?

Chris Mirasola: Yeah. So the Insurrection Act has like three substantive provisions, right? And they authorize the president given certain conditions, different conditions for each of the statutory authorities to use the military much more broadly, right? To suppress domestic unrest, do law enforcement effectively, right? Think of them as any kind of federal law enforcement agency. That's effectively what they would become after an Insurrection Act invocation.

Some of these authorities require a request from a governor, some of them don't. There's a very broad one that does not require any request from a governor for support.

I think it is not out of the question that he would use at least one of these provisions of the Insurrection Act. I don't know if it would be to deploy the military for immigration enforcement purposes or for other purposes as events develop within the United States. And there are challenges in using the Insurrection Act for any kind of domestic deployment.

Although the statutes are incredibly old and they have very broad language, they traditionally have been interpreted, including by the Department of Justice, as requiring a certain factual finding of local and federal law enforcement agencies being unable to control whatever domestic unrest we are currently concerned with.

Alright, so the last invocation was in 1992 L.A. Riots, right? So, the issue there was that L.A. Police Department, California State Troopers, whatever federal law enforcement, you know, were available in the area, weren't sufficient to quell the demonstrations, the unrest, the destruction that was happening in L.A. that led the first President Bush to determine that it was necessary to use the military, right, to assist.

These interpretations of very broad old language I could very easily see given a pliable Department of Justice, Trump, kind of, getting over practically quite quickly. My concern would be that litigation wouldn't be fast enough to meaningfully stand in the way of that kind of domestic deployment.

It is also significantly like the nuclear option, right? It is the authority that provides the president the most expansive authority to use the military in the United States. And so if you ramp up to it too quickly, you're also left with nothing else in your rucksack, right? And so that's part of what makes me think that we're unlikely to see an Insurrection Act invocation immediately.

But I have no way of knowing if that instinct is true. And I think that the guardrails here have in significant ways, not been tested meaningfully, because there's just been traditionally a reluctance of presidents to use Insurrection Act authorities.

Benjamin Wittes: We are going to leave it there. Chris Mirasola, thanks so much for joining us today.

Chris Mirasola: Thanks for having me.

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