Lawfare Daily: How the Trump Administration is Using the Military to Enforce Its New Immigration Policies

[Intro]

Chris Mirasola: None of the authorities that are at issue with this new tranche of DOD support constitute an express exception to the Posse Comitatus Act, which is to say that none of these authorities authorize the military personnel to take on a law enforcement function.

Scott Anderson: It's the Lawfare Podcast. I'm Lawfare Senior Editor Scott R. Anderson with Chris Mirasola, assistant professor at the University of Houston Law Center.

Chris Mirasola: So long as you have governors who are willing to make their National Guard members available for a border security mission, and there's plenty of evidence of governors being comfortable with that from the first Trump administration, you have a really large population of military personnel that you can draw from to execute these kind of missions at the southern border.

Scott Anderson: Today we're talking about how the Trump administration is using the military to enforce its new immigration policies thus far, and what else may be coming down the pike.

[Main Podcast]

So, Chris, we are a week and a little change into the second Trump administration. And we are at the point now where we are beginning to see a number of actions that are making good, to various extents although perhaps not fully in the ways some might have expected, on some of the campaign promises President Trump made about engaging immigration enforcement more broadly, but specifically about using the military for immigration enforcement and potentially for other domestic purposes. But, but so far really in the immigration context.

You've done amazing work for us in laying out the potential authorities the president has available for use here, both on the more credible side and potentially on the slightly more aggressively leaning legal side. But now I want to drill in to at least begin our conversation on what's actually happening these days.

So the first item we have, which you have a piece up on, or will shortly be up on Lawfare if it's not already at the time this podcast is released, discussing a significant new military deployment to the border of an additional, I think, 1500 troops to the border, active duty military personnel. Talk to us about this deployment, what those troops are doing and how that fits in this legal structure, how big a departure it is or how comfortably it fits in past precedents.

Chris Mirasola: Fantastic. Yeah. So I like to think about all of these border military involvement and border security kind of issues, developments on like an escalation trajectory, right? So are we comfortably within how presidents have acted in statutory authority before? Or have, are we venturing out into some kind of less precedented, more ambitious interpretation of statutory or constitutional authority?

I think what we saw with the first additional kind of tranche of support of the Trump administration is activity that has occurred either in the Biden administration or activity that we have seen from the Trump administration that is pretty comfortably accommodated by existing statutory authority.

So there are a few buckets of what, at the time, Acting Secretary Salesses approved as support to DHS. So as you said, right, it's an additional 1,500 military personnel. They are primarily undertaking three tasks under what seems to be an existing request for assistance that was sent from the Department of Homeland Security during the Biden administration, which was part of the reason why DOD was able to act so quickly, right? No additional requests were needed.

Those military personnel are executing a few functions. So one is what they call a detection and monitoring mission. That is effectively where you have military personnel standing some distance from the border, they have high power binoculars, and they are looking at the border, trying to see anyone coming across the border unlawfully. If they see someone doing that, they get on the horn with a CBP officer who comes in and makes an arrest. That's detection and monitoring.

Another function that these military folks are doing is what they call intelligence analysis support. That's effectively where you take military personnel, you detail them, you send them to DHS to look at raw intelligence that DHS has and tries to make sense of it for them so they can predict like what migrant flows they might be seeing at the border, kind of in the near term.

And then the third bucket that we have here are military folks who are being sent to assist with like a variety of logistical tasks, perhaps uncharitably, like kind of like grunt work kind of tasks: fixing CBP vehicles, moving vehicles from, you know, point A to point B. The idea with this bucket of support is that you're freeing up CBP law enforcement agents to go and actually do law enforcement duties while the military do these non law enforcement functions.

All three of those functions were forms of support that DOD was providing during the Biden administration and indeed during the first Trump administration. All easily contemplated within the usual bucket of statutory authorities we would look to for DOD support, DHS at the southern border, that's chapter 15 of Title 10. That's Section 1059 of the NDAA for FY2016.

There are two elements of this support approved by Acting Secretary Salesses that were changes to, from what we saw during the Biden administration. The first was assistance with deportation flights. And the second was assistance with emplacing, repairing a border wall. Although they're new to what was happening in the Biden administration, they are not new compared to what the first Trump administration was doing.

So the deportation flight is something that DOD assisted with towards the end of the Trump administration, and it is effectively having the military act as a bus driver to fly these planes from the United States to another country when DHS is providing law enforcement officers to actually detain the migrants who are on the plane.

And then the border support from kind of more recent indications that we've been seeing, looks to include in placing concertina wire, which is razor wire on top of existing portions of the border wall.

Scott Anderson: So, this is obviously a wide range of activities, and we know there are statutory authorities that support some of these. Some more recent from the NDAA, a few long standing authorities in Title 10 of the U.S. code. I know the concertina wire is linked to an existing authority that has to do with like kind of maintaining border security measures, things like that.

Talk to us about what those authorities permit, and in particular what they don't permit, right?

Chris Mirasola: Yeah

Scott Anderson: When people worry about the military involvement in law enforcement, you know, they think about, you know, Posse Comitatus restrictions. This idea that military isn't supposed to be generally involved in these sorts of things, except in certain circumstances.

But more specifically, what are those limitations mean in terms of law enforcement activity? What do these statutes authorize and what do they not authorize the military to do at the border in these other contexts?

Chris Mirasola: Great. Yeah. So as you say, right, our baseline presumption statutory law is that the military, due to the Posse Comitatus Act, is not authorized to perform any domestic law enforcement functions.

There, there are two exceptions to this general prohibition in the Posse Comitatus Act. One are express authorizations contained in the Constitution and another are express authorizations included in statutory law. Kind of the most famous right exception is, you know, the provisions of the Insurrection Act.

None of the authorities that are at issue with this new tranche of DOD support constitute an express exception to the Posse Comitatus Act. Which is to say that none of these authorities authorize the military personnel to take on a law enforcement function.

This is why, for the deportation flights, for example, there need to be DHS agents, federal law enforcement agents who are doing the actual law enforcement activity on the plane, right? The military personnel cannot be detaining anybody. They cannot be arresting anybody.

There's a few different tests that float in the jurisprudence of this area about what constitutes a law enforcement function. But as recently as the first Trump administration, the Office of Legal Counsel in the Department of Justice, A, confirmed that none of these authorities constitute exceptions to the Posse Comitatus Act, and B, kind of took all of these different tests and kind of applied them together, thereby kind of creating a pretty broad definition of what constitutes a law enforcement function.

And I think this influences the, the kinds of tasks that we're seeing these military personnel perform, kind of even in these early days of the administration.

Scott Anderson: And what are the broad contours of that law enforcement function? I mean, you might think, hey, you're there repairing police trucks and particularly surveilling things. That sounds like a law enforcement function, but this is on one side of the line, the way the executive branches interpret it.

What's on the other side of the line? What sort of law, what do they mean by law enforcement function? What activities are they really worried about?

Chris Mirasola: Yeah, so they're really worried about any, like, what they call direct participation in a law enforcement function. And so these are things like doing an actual arrest, right? Taking some kind of coercive or prescriptive action that affects the behavior of someone else, right?

So in that OLC memo, for example, they distinguish opening up a rail car so that someone else, a law enforcement agent can come in and inspect the rail car and potentially prevent the rail car from moving on from the border, right? With that second kind of category of action being a more coercive action that speaks more of law enforcement than the simple like opening up of the rail car doors to begin with. It's like a line that is both like, both broad, but also like a little bit fuzzy when you get to actual implementation, unfortunately,

Scott Anderson: A little gray area, but you see what they're worried about. The threat of violence and force and implied threat of-

Chria Mirasola: Exactly. That's right. Yeah.

Scott Anderson: So that takes us to another set of activities we've gotten wind of, some of which may have already begun. And that's the use of military bases to actually detain migrants. One we've gotten word of is here in the United States in regards to an existing Air Force Base, or I think Space Force Base now. Talk to us about what we're we know is happening there and where that fits in this legal schema.

Chris Mirasola: Yeah, so we have relatively little information about this the last time I checked both the U. S. Northern Command and Defense Department websites. But there has been public reporting, at least in the New York Times, about this. So, what we're seeing is that facilities at Buckley Space Force Base are being used to detain migrants for ICE before they are deported.

It appears that they're using already existing DOD facilities that are on these sites, all of which is quite similar to the kind of support that DOD provided to the Department of Homeland Security and Department of State during the withdrawal from Afghanistan, when a number of military bases across the United States were used through their existing facilities to house these evacuees on a temporary basis until DHS and the State Department could find a way to relocate them through the usual asylum or refugee process.

There is a long history of DOD making available its excess facilities to other departments and agencies, including for detention purposes. So the most famous kind of similar precedent that we have here is this quite large exodus of Cubans during, I believe, the Reagan administration called the Mariel boatlift.

We have many thousands of Cubans who are housed on military installations in Florida. They are prevented from leaving those military installations, all based on the theory that the Posse Comitatus Act does not apply to a commander's ability to enforce good order on a military installation.

This is not an exception that is stated anywhere in the Posse Comitatus Act. It is a longstanding executive branch practice that they have implied into the act.

Scott Anderson: And it does seem to raise questions here compared to the Afghan context, because in the Afghan context, you have people who were, you know, at least hypothetically, mostly there voluntarily refugees, seeking refuge. Now, maybe some of them would rather have wandered off the base and gone elsewhere in the United States, and they weren't at liberty to do that.

But it's a little different from here where you're having people actively detained and held. But these earlier precedents draw that line saying this can extend all the way to detention. Has that proposition ever been tested? And I guess how would it given the nature of the Posse Comitatus Act? Is there any sort of legal pushback that we might expect to scenarios that push against those limits?

Chris Mirasola: Yeah, so I'm not aware of any pushback that has occurred in like similar situations or even kind of tangentially similar situations in the past. And as you were just kind of mentioning, perhaps a better kind of analog to what's happening now is the early days of the COVID 19 pandemic, when there were a number of flights, evacuation flights from Wuhan and other locations in China where individuals were quarantined on military installations for however long we did quarantines at the time, I don't recall anymore, and thereby prevented from leaving the base until those quarantines were up.

I'm not aware of any litigation that has occurred with respect to kind of, to this theory that there is an implied exception to the Posse Comitatus Act that pertains to military installations. It is, again, like establishing a number of OLC and War Department documents that go back a pretty long ways. So I wouldn't be particularly optimistic about the prospects of that kind of litigation.

But I could, on the other hand, imagine, particularly if the conditions of these facilities are not up to the requirements of the various kind of consent decrees that govern this area of immigration law, one might imagine more narrowly tailored litigation that focuses on the sufficiency of the facilities that are being provided,

Scott Anderson: So in addition to this use of Buckley Space Force Base, we now have just in the last hour before we started recording news of another much more dramatic proposal, much more high profile because President Trump appears to have announced it through some social media platform or in person, I actually don't recall.

But nonetheless coming directly from the horse's mouth on this intent to establish a facility to detain 30,000 migrants in Guantanamo Bay, Cuba. Talk to us now, obviously we're waiting on a lot more detail on this proposal. We only have the broadest outlines coming from President Trump himself, to my knowledge and we're recording this late in the day on Wednesday, January 29th. So by the time people are hearing this, maybe more details are out there.

But talk to us about this proposal and how outlandish it is or how much it actually might fit with prior precedents.

Chris Mirasola: Yeah. First thing to know is that there are a couple of different parts, right, of the Naval station that exists in Guantanamo Bay. There is the detention facility that we are all aware of, right, in the terrorism context. That is on one side of the Bay.

And on the other side of the Bay, you have something that's called the Migrant Operations Center. This is a facility, an area that we know a little bit about, but not a ton. It's existed for quite some time. It seems it's primarily designed as a facility where DHS and the State Department can temporarily house migrants who are interdicted at sea in the Caribbean to facilitate their kind of onward movement to countries outside of the United States.

We don't know a ton other than some reporting from I believe September of last year about the conditions of this facility. We do know that it is operated by DHS and the State Department. It is not operated by the Defense Department, although it exists on a military installation.

What does that mean for our purposes? What I think this means is that although DOD was responsible for the overall safety and security of Guantanamo Bay, right, the military installation. The actual policing and law enforcement functions that would need to be happening within the Migrant Operations Center would be a DHS responsibility.

I'm not aware of this facility being used for anything close to the numbers that President Trump just talked about, but it has been used in the past, again, for like much smaller numbers of folks interdicted at sea.

Scott Anderson: So, so far, that is really the universe of actual actions being undertaken or at least announced in this case by the Trump administration. Obviously, we're expecting more on a lot of these different fronts. This seems to be the tip of the iceberg.

And as you've described actions that build lightly upon prior actions by prior administrations by the prior Trump administration, not some of the more dramatic steps that we've seen signals towards particularly in the executive orders President Trump issued in his first few days. We have seen a couple of other concrete directives that bear on ways the military might be used in the future. And I want to talk a little bit about those.

First one thing you noted that I thought was really interesting in an earlier piece you wrote for us shortly after the executive orders came out is the fact that President Trump directed a review of the rules of engagement that apply in this sort of context for military personnel. Talk to us a little bit about why that might be happening and to the extent there is a nexus to these particular enforcement actions or why there might be a nexus to these sorts of actions.

Chris Mirasola: Yeah, great. Right. So there's this really curious part of the, I believe it's the executive order that established the national emergency at the southern border, though there were frankly so many, it's hard to keep them all separate, that directed the secretary of defense to take another look at the rules for the use of force to ensure that they were sufficiently protective of the safety of military personnel.

There are, generally speaking, kind of two bodies of standing rules about how military personnel should operate, kind of on a tactical level, right, when they are operating, one, in the United States and then a second outside the United States.

So the rules for the use of force apply to how military personnel must act within the United States based on prevailing federal case law, constitutional guarantees, the Fourth Amendment, things of that nature. And the document itself is classified, right? So the existence of the document is not classified. The actual left and right bounds of what the military can do is a classified document that we have not seen.

What the president is trying to get at in this review, I am not sure. One thing we know exists because of public statements from across administrations is that all military personnel at all points have an obligation, an obligation of self defense. And so, this applies within the rules for the use of force, it applies equally within the rules for engagement.

And so there is, it seems to me, already sufficient protection for when, you know, military personnel are providing this kind of support, including at the southern border. Indeed, if you looked at some of the background interviews that the Defense Department gave after this support was announced, they confirmed that these additional troops weren't going to be armed at the time because the commander of USNORTHCOM didn't perceive there to be a sufficient threat to the force to warrant that kind of arming.

Of course, these things change as facts on the ground change. But it seemed to be, the directive from the president seemed to be in tension with the kind of sense that the military personnel have, the commanders have, of the threat that they're confronting in these deployments.

Scott Anderson: And that intersects directly with another executive order that we saw come down on the president's first day in office. That is the one entitled, Clarifying the Military's Role in Protecting the Territorial Integrity of the United States, where Trump directs NORTHCOM, Northern Command, that you referenced earlier, that is responsible for the kind of Defense Department's posture in North America, Canada, Mexico, United States and surrounding and surrounds, to reevaluate their role and approach to securing the United States of borders, a territorial United States and specifically discusses, as was a threat throughout many of these executive orders, a threat of invasion, specifically framed as invasion by unlawful migrants.

What do we know about what this order is actually doing in practice? It's a 10-day order. So in theory, tomorrow, I suppose, is the deadline by which NORTHCOM is supposed to come up with this new assessment of where, what they're supposed to be doing. Where do we expect and what might this signal in terms of a pivot in the military's role in this regard, or perhaps not?

Chris Mirasola: Yeah, so there's been an implicit assumption in how Northern Command has interacted with the border mission that the military's role was always in response to requests for assistance from other federal law enforcement agencies, mainly the Department of Homeland Security.

What we see in this executive order is the president directing Northern Command to assess how it might secure the border in the absence of that kind of request for assistance from a federal law enforcement agency. There are a couple of options that are either like explicitly or implicitly kind of raised through this and other executive orders.

Explicitly, it mentions planning for an Insurrection Act deployment, right? Whether there's a need for an Insurrection Act deployment and what the contours of that kind of deployment would look like. There are other kind of implied constitutional theories. It's either based off of Article Four, Section Four or notions of sovereignty that kind of are raised more or less directly in this and other executive orders.

And so it's, it's a little bit unclear to me which of these Northern Command would be assessing and presenting in its kind of draft planning guidance, right? That it's kind of presenting to the Secretary of Defense, whatever that is, tomorrow or yesterday. And what we then further don't know based off of that, right, is what is made of that planning effort.

And so finally, like, it's also not a process that's particularly amenable to, like, transparency, right? I wouldn't be expecting to see much in the way of deliverable that's, you know, presented to the public in any meaningful way. So we may not see very much about this for at least the near term.

Scott Anderson: What do we know so far about leadership changes in Northern Command and the Defense Department that may bear on this determination compared to the posture that you described that it's previously taken. Have we seen major shifts in leadership that might signal a different approach or is that still something that's in process or a little unclear at this point?

Chris Mirasola: Yeah, so this is actually kind of fascinating. There have been no substantial personnel changes at a command level at Northern Command that I've seen as of today, right, the 29th.

Interestingly, despite all the rhetoric kind of through Secretary of Defense's confirmation hearings and beforehand, the chairman of the Joint Chiefs of Staff, right, has also not been changed. Finally the acting deputy secretary now, Salesess, right, spent much of his civilian career as the head of the kind of civilian unit within the Department of Defense, that's in charge of Homeland Defense and defense support of civil authorities policy since 9/11, effectively.

And so is a person who has been steeped in the way that the Defense Department has provided support in the past. And so there's a surprising amount of continuity in the personnel who will be implementing the president's vision for the military support at the border, which seems to be potentially on a collision course with some of the rhetoric that we see at the far end, right, of, of some of his executive orders.

Scott Anderson: And one additional measure that you've already mentioned, but I want to circle back on that we might see come not from the Defense Department, although it will find itself responsible for implementing it, but from President Trump himself is an invocation of the Insurrection Act, something we haven't seen happen since the L.A. riots of the 1990s.

But dramatic step that he at least reportedly wanted to pursue at points during his prior administrations was deterred by Defense Department and Justice Department officials. Talk to us a little bit about what that will look like and what that will mean in terms of immigration enforcement, assuming that that is the purpose for which he invokes them, as appears to be the case.

What is the delta there? What are the reasons he might do it beyond the strictly symbolic? Or is it something that he's already accomplishing a lot of the use of these personnel through these other avenues?

Chris Mirasola: Yeah, great. So I think, you know, to quickly set a baseline for folks, right? There are a couple of different substantive provisions of the Insurrection Act.

Some of those provisions require a request for assistance or support from a state that is unable to deal with an insurrection within its boundaries. There are other provisions that do not require any request for assistance. And it's that part of the Insurrection Act that the president is specifically talking about in his executive orders.

What does the Insurrection Act do? It allows the president access to any member of the active duty armed forces and the National Guard who would be brought into federal service and made part of the active Army or Air Force. And allows him to use those personnel to suppress that interaction, to stop that invasion, notwithstanding the restrictions of the Posse Comitatus Act, right? So the Insurrection Act is a way to get around the Posse Comitatus Act.

To your point of whether you need this to be effective, I think the answer increasingly over the past couple of decades has been no. And that's because of a separate development that's occurred in other provisions of the U.S. Code, particularly in Title 32, which allows the president to use National Guard personnel in like a hybrid duty status so that they can execute a federal mission while remaining part of their state or territorial militia, thereby basically getting out of the prohibitions of the Posse Comitatus Act without having to use any of these emergency authorities like the Insurrection Act.

And once you get around that restriction, right, so long as you have governors who are willing to make their National Guard members available for a border security mission, and there's plenty of evidence of governors being comfortable with that from the first Trump administration. You have a really large population of military personnel that you can draw from to execute these kind of missions at the southern border without having to touch the much more tenuous arguments you’d have to make to invoke the Insurrection Act.

Scott Anderson: So there's one more legal argument. That came out in President Trump's executive orders that you've written on a touch on a little bit. We've discussed it on the podcast, but I want to dig into it a little bit here in this context. And this came specifically, or at least most directly and at most length in the executive order entitled Guaranteeing States Protection Against Invasion. I may have the wording slightly off, some of that effect.

And it is essentially an argument that the Guarantee Clause, the clause of the Constitution, perhaps among other provisions of the Constitution, because it's at various points pulls in the Commander in Chief Clause and certain other provisions as well, gives the president a substantial degree of inherent authority above and beyond, or at least not clearly limited by, existing statutory authorization to protect the United States or specifically the states against invasion.

That's one of the things that Guarantee Clause guarantees the state's protection against from the federal government as a whole executive branch and Congress together and the courts, I suppose. What do you make of that constitutional argument, it's inclusion in here?

The executive order is pretty careful about citing it alongside a number of statutory authorities in directing different types of preparation. It basically directs Defense Department, as well as the Attorney General, as well as the Department of Homeland Security to make a bunch of preparation for potential steps, including, you know, use of the Alien Enemies Act and a sort of other statutory authorities to remove people from the United States, various provisions of the INA.

Doesn't actually direct anything beyond that preparation, at least at this stage. But it is suggesting an ability on the president to claim of authority that seems to go beyond the strictly statutory or at least potentially lays the foundation for that argument.

How does that enter into this picture? How might that enter this picture? What are the situations where, where President Trump or those advising him might see advantage to invoking that argument?

Chris Mirasola: Yeah, so this is an argument that we really haven't seen in man I mean, at least after World War II. In the early days of implementation of the Posse Comitatus Act, if you look back at War Department implement general orders, they list what they saw as the statutory exceptions to the Posse Comitatus Act.

They also included only one constitutional exception to the Posse Comitatus Act. That was the Guarantee Clause. They did that in a number of general orders that continued through World War Two.

And then you see that exception fall out of any subsequent Department of Defense implementing regulation for the Posse Comitatus Act, unclear why. I've looked through the archives to try to understand why.

Scott Anderson: Like any good law professor.

Chris Mirasola: Like any good law professor. And if someone can find it, that would be amazing. But no dice so far for me. I think a few things, right? One is that it is in tension, right, with Supreme Court treatment of the Guarantee Clause, right, which says that it is a authority to be used by Congress effectively that they may implement through statutory law.

And indeed, it's the principle legal basis that we can think of for the provision of the Insurrection Act that allows the president to act without a request for assistance from the governor or legislature of a state. I am unaware of any use of that constitutional authority to authorize a domestic deployment at all in recent memory.

There are the only two theories that the executive branch has offered to use the military for domestic law enforcement purposes solely on a constitutional basis. Both of them OLC over the course of the seventies founded in the Take Care Clause and not in the Guarantee Clause, and they're also pretty limited assertions of authority.

So one is an authority to use the military to protect federal persons, property, and functions, not to go forth and generally conduct law enforcement functions. And the second is this thing called the emergency authority, which does purport to give kind of unit commanders the ability to conduct law enforcement functions, but only in circumstances when there is a near total breakdown of civilian governance and more importantly, any form of communication with higher headquarters with the White House. Which given the development of kind of modern technology has not occurred in any substantial way since, you know, the very early 20th century.

The example we always give is in the wake of the San Francisco earthquake when soldiers left the barracks in San Francisco and, you know, enforced law and order in the street in the very early 1900s until, you know, the telegraph lines could go back up. It just hasn't been practically relevant because of how limited the authority is.

Scott Anderson: So, I feel like we would be neglecting the landscape of domestic deployments of the military for law enforcement and law enforcement adjacent purposes. If we didn't touch on that authority that was so controversial during the last Trump administration, specifically in relation to the deployment of military personnel to Washington, D.C. during Black Lives Matters protests.

And that is, of course, the notorious in some circles, mostly unknown, but notorious in certain circles, you and I and other folks run in, that is Section 32 U.S.C. 502(f) of the U.S. code, which provides an avenue by which state governors are able to, to some extent, and I'm oversimplifying here, volunteer National Guard personnel for federal service in a way that, because they're not technically in federal service, they don't qualify for Posse Comitatus Act restrictions.

Talk to us a little bit about whether you see a spot for that in this architecture. Is there a gap that that authority might be tempting to use to fill down the road like it was in D.C. back in 2020? And why is that? Where does it fit in? Or is this going to be, you know, yesterday's battle legally? Is this an authority that's likely unlikely to be invoked in this context, if for no other reason, then there are kind of a plethora of other avenues for addressing the policy needs the Trump administration sees?

Chris Mirasola: It's really interesting because legally speaking the 502(f) deployment that we saw in the wake of the Black Lives Matter protests in D.C. was this combination, right, of the hybrid duty status that we were talking about before, right, that allows National Guard to do a federal mission and get around the prohibitions of the Posse Comitatus Act. And one of the theories of inherent constitutional authority that I just mentioned, the protective power.

So what happened in the wake of the Black Lives Matter protest was that you had the president direct these National Guard folks who were operating in their state status to protect federal functions, persons, and property, which contributed to their placement in the city, right? You saw them placed around national monuments and federally owned properties, right, like Lafayette Square.

This meant that they were kind of both geographically restricted. And they were also restricted in the amount of law enforcement function that they did under the protective power, which generally says that the military personnel can only be used to, like, pass on someone who needs to be arrested to a law enforcement officer.

Do I think that we could see this marriage of 502(f) and the protective power come together at the southern border? Yes. There are some indications that's been used in the past, particularly at ports of entry. It becomes less helpful when you are operating in areas that have fewer federal personnel and property to defend, right? Because you need that route to make the authority work for you.

But you could imagine creative uses of the authority, right? Having National Guard personnel protecting federal law enforcement agents, right, who might be conducting law enforcement over a larger swath of territory that isn't federal territory.

So it's a long way of saying it was, there was a relatively narrow application in the context of the Black Lives Matter protests. You could imagine a more expansive application in this context, but it will be difficult to implement in the way that it seems the president would want to be using the military, if we're getting to this kind of eventuality.

Scott Anderson: So this has always intrigued me in this sort of context, right? Because as you describe it, you need 502(f), which is this authority that lets you get these state troops to do a federal mission without falling under Posse Comitatus limitations. And then the protective principle to inform the federal mission. This is a thing the federal government has the authority to do, and therefore we can use 502(f) to do it.

But are there other missions that are relevant here? And the thing that comes to mind that other than the protective principle that you could use, people use 502(f) for. And in my mind, that becomes one avenue where the Guarantee Clause argument becomes particularly useful.

Because if the president is asserting, no, I have inherent authority to defend the states against invasion, and I consider unlawful immigration to be an invasion. Then does that potentially become the sort of federal mission that the president can invoke 502(f) for? Maybe he doesn't need to, I guess. Maybe it's not the way he has to get the troops.

But it might be in certain contexts, or if you're particularly worried about cos, Posse Comitatus Act restraints, and you don't see another way around it, and you don't want to use the Insurrection Act or something like that. Does that make sense?

Chris Mirasola: Yeah, right, I see where you're getting at, right? Which is that you could imagine, I think we're actually seeing telegraphed, right, in these EOs, a more expansive interpretation of the Guarantee Clause, right that says, no. This is not just an authority that is entrusted to Congress to implement through statute. That this is an authority, a responsibility, of the president, by virtue of his, you know, of the Take Care Clause, perhaps, to defend against this invasion, right?

So if he takes the Guarantee Clause as the substantive authority that's being used here, which, again, is not an argument that has been made by anyone in at least many, many decades, then you could imagine using National Guard in a 502(f) duty status, right, as a way to get around the restrictions of the Posse Comitatus Act, right? It's like an added layer of protection, right?

You might be saying, okay, you may not believe that this is an exception to the PCA, but it doesn't matter because I have these National Guard who are operating in a status where the PCA doesn't matter. I could imagine that being, like, the theory that, like, it's, the caveat to all of this is right. It's very tenuous intention, if not blatant conflict with Supreme Court precedent.

We have yet to see how like important those kind of implications are to what the president decides to do.

Scott Anderson: This has been like, a very, very thorough overview, a very diverse landscape of legal arguments, some legal actions we're seeing being undertaken by the Trump administration, some being anticipated, some perhaps waiting in the wings. We know from prior experience coming out that we can kind of see.

What are you, as somebody who follows these things, going to be looking at in the, you know, next three to four months for the biggest movement in this phase? Where do you think the operational needs, the political incentives facing the Trump administration seem likely to push it to pursue these different legal options or ways to use the military for the sort of mission set.

Are there areas you find particularly concerning, areas you expect to see? And where do you think we're going to be come summer when we're a few months into this administration?

Chris Mirasola: Yeah so there are a few things that I'm kind of trying to keep a tab on.

The first is that it seems almost certain that we should expect an additional request for assistance from DHS to DOD. I'm very interested in seeing what the contours of that request are, how similar it is to the requests that prevailed in the first Trump administration, or if they're going to be moving beyond the buckets of support that were provided in the first Trump administration. I think that's going to provide a kind of a key indicator of the ambition and the appetite of the administration, kind of in practical terms to use the military for the southern border enforcement missions.

I'm also going to be keeping an eye on any support that DOD is providing to house migrants. I'm really hoping that journalists help us in understanding DOD's understanding of the left and right bounds of that support. And again, as an indicator of how much appetite there is for legal argument, that varies from what the Defense Department has done for at least the past couple of decades.

The last thing is this, you know, U.S. Northern Command planning effort. And it's in some ways the most important and unfortunately the least, the, the, the development that we're going to have the least insight into. I'll be curious to see if we hear anything at all from what that planning process looks like. I don't really have a sense for the timeline on which we would hear anything about that planning process. But I think that's going to be incredibly contentious within the department and kind of essential to understanding what we're going to be seeing over the next four years.

Scott Anderson: Well, something tells me we are going to have lots of opportunities to sit down and discuss it. But until then, we are out of time. Chris Mirasola, thanks for coming here again on the Lawfare podcast.

Chris Mirasola: Thanks, Scott.

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