In April and October, President Trump proclaimed his intention to send National Guard troops to the US-Mexico border as an anti-illegal immigration measure. The Department of Homeland Security (DHS) Customs and Border Protection reported apprehensions of people entering the U.S. illegally at the Southern border jumped by 37 percent from February to March 2018, by 203 percent from March 2017, and overall an increase of 19 percent from Fiscal Year 2017 to Fiscal Year 2018. Curiously, no such order is planned for the US-Canada border during a year in which there has been a surge of U.S.-based immigrants crossing illegally into Canada, mostly into the Quebec province bordering New York and other northeastern U.S. states. What follows is an update to an earlier JURIST piece regarding Department of Defense support to federal, state, tribal, and local civilian law enforcement agencies, in the contemporary context of military support to civil authorities along the United States’ borders, both land and sea.
These potential – and actual – troop deployments are but a recent occurrence in a history of over a century of federal troop deployments and 200-plus years of legal precedent. The Insurrection Act of 1807 was one of the first and most important US laws on this subject, and was followed some 71 years later by the Posse Comitatus Act of 1878, which further limited executive authority to conduct military law enforcement on US soil. Each of those laws has evolved over time — consistent with the times and the popular will expressed through Congress.
The Insurrection Act, (codified, as amended, at 10 USC § 331–35) has changed from its 1807 inception many times, with most notable alterations in the mid-twentieth century. It has consistently exempted federal (and federalized troops) from legal prohibitions on employment and deployment on US soil where troops provide federal aid for state governments (§331), are militia and armed forces enforcing federal authority (§332), are dealing with interference with state and federal law (§333), where there has been a proclamation to disperse in times of civil disturbance (§334), including Guam and the US Virgin Islands (§335). For a brief year, it was expanded under the 2007 John M. Warner Defense Authorization Act, then brought back to longstanding language in the subsequent fiscal year.
The so-called Posse Comitatus Act, passed on June 18, 1878, prohibited federal troops from supervising confederate state elections in the latter portion of the Reconstruction Era. It originally applied only to the US Army, but was amended after the US Air Force was created to include those forces in 1956, then has applied by DOD regulation to include US Navy and US Marine Corps forces as well. The Posse Comitatus Act read then, and reads now, as follows:
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army [or the Air Force] as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.
The Posse Comitatus Act has prohibited troops under federal authority (that is Title 10 Active Component troops and “federalized” Title 32 National Guard troops) from generally conducting law enforcement duties on US soil absent congressionally legislated or constitutionally enumerated authority or exception. Several such federal troop use exceptions to the Insurrection Act and Posse Comitatus Act would be troop employment and deployment during a biological, radiological, or nuclear event under 18 USC §831, or intelligence, military equipment, training, advice or facilities usage, amongst other matters, in support of civilian law enforcement under 10 USC §382.
An armed force ideal for border security, unbound by the Insurrection Act or Posse Comitatus Act, but customarily maritime in focus, is the US Coast Guard (USCG). Under 14 USC §1, “[t]he Coast Guard as established January 28, 1915, shall be a military service and a branch of the armed forces of the United States at all times.” The USCG takes on a unique naval force role, under 14 USC § 3, as amended by section 211 of the Coast Guard and Maritime Transportation Act of 2006, upon declaration of war or when the president directs, but as it is now under the Department of Homeland Security (DHS), it acts in peacetime as a law enforcement agency that can conduct activities on US soil and in US waters.
Neither the Insurrection Act of 1807 nor the Posse Comitatus Act of 1878 provide for the federal government to supersede the ordinary operation of US federal, state or territorial law. Neither act has ever been used to absolutely proscribe federal troop employment and deployment during transitory crises, emergencies, and disorders.
In 1919, President Woodrow Wilson called out federal troops to quell race riots in 20 cities across the US. In 1932, President Herbert Hoover called upon General Douglas MacArthur, with the aid of his staff officers Majors George Patton and Dwight D. Eisenhower, to send US troops to displace and disperse a group of 20,000 aggrieved WWI veterans (the so-called “Bonus Marchers”) encamped on or near the Washington Mall. During 1946, President Harry S. Truman sent out federal troops against striking railroad workers. The year 1957 saw President Eisenhower federalize Arkansas National Guard troops and send federal troops to Arkansas to counter desegregation violence. In 1962, President John F. Kennedy sent federal troops to Mississippi and Alabama to counter racial violence. President Richard M. Nixon sent federal troops to Wounded Knee, SD in 1973 to counter racial violence. President George H.W. Bush sent troops to St. Croix, US Virgin Islands, in 1989 ostensibly at the request of the Territorial Governor to quell civil disturbance and provide disaster assistance after Hurricane Hugo, and in 1992 sent federal troops to Los Angeles to quell civil disturbance after a controversial court decision. Most recently, in 2005, President George W. Bush sent federal troops to the Gulf Coast to quell civil disturbance and provide disaster assistance in the wake of Hurricanes Katrina and Rita.
There are many more recent instances and exemptions whereby federal (or federalized) troops were called upon to conduct brief operations other than training on US soil in accordance with an Executive Order or Proclamation under the Insurrection Act or some other exemption to the Posse Comitatus Act, including but not limited to the employment of assets and deployment of forces to assist in the fall 2012 Hurricane Sandy relief, and the April 2013 inter-agency support in the aftermath of the Boston Marathon bombings.
Influenced by those recent past events, the DOD released DOD Instruction 3025.21, “Defense Support of Civilian Law Enforcement Agencies,” on February 27, 2013, to require that senior DOD officials develop “procedures and issue appropriate direction as necessary for defense support of civilian law enforcement agencies in coordination with the General Counsel of the Department of Defense, and in consultation with the Attorney General of the United States,” including “tasking the DOD Components to plan for and to commit DOD resources in response to requests from civil authorities for [civil disturbance operations],” as in the case of federal interagency responses to Hurricanes Irma in 2017 and Michael this year.
When employed or deployed after civil disturbances or natural disasters, federal troops from the DOD would and will receive direction from the Federal Emergency Management Agency (FEMA) in accordance with the most recently issued (2016) National Response Framework (NRF) to work solo or in concert with other federal agencies to provide personnel, equipment, supplies, facilities, and managerial, technical, and advisory services.
Support scenarios could include: a presidential declaration of a major disaster; an order to perform emergency work essential for the preservation of life and property; or, a presidential declaration of an emergency.
In all but the instance of a presidential declaration of emergency, the governor of an affected state or territory must request assistance regardless of any state or local capacity to render disaster assistance. The NRF allows DHS to coordinate federal agencies that work alongside state and local agencies. In the words of past DHS Secretary Michael Chertoff, these scenarios do not “supersede the state and local government,” but “fit with the state and local government in a comprehensive response plan.”
Cross-border migration can be prompted by many causes, including but not limited to economic opportunity or lack thereof. On May 1, 2018, the Secretary of Homeland Security Kirstjen M. Nielsen led a national hurricane preparedness and response exercise for cabinet members and senior administration officials hosted by the White House National Security Council. Might it be time for a similar National Level Exercise (NLE) to bring together federal, state, local, tribal, and territorial governments, private industry, and non-governmental and community organizations to plan for and test border security scenarios? As long as military forces play a continuing essential role in supporting civil authorities consistent with law and policy, such planning would be especially prudent.
Kevin Govern is a Professor of Law at Ave Maria School of Law, and Executive Board Member at the University of Pennsylvania Law School’s Center for Ethics and the Rule of Law. He began his legal career as a US Army Judge Advocate, serving 20 years at every echelon during peacetime and war in worldwide assignments involving every legal discipline. He has also served as an Assistant Professor of Law at the United States Military Academy and has taught at California University of Pennsylvania and John Jay College of Criminal Justice.
Suggested citation: Kevin Govern, National Guard And Active Duty Lend a Hand To Civil Authorities On the Border, JURIST – Forum, October 19, 2018, https://www.jurist.org/commentary/2018/10/govern-support-to-civil-authorities-us-borders/.
This article was prepared for publication by Erin Holliday, a JURIST Assistant Editor. Please direct any questions or comments to her at commentary@jurist.org
