As Beltway Theater goes, a slow-moving caravan of defiant Central American migrants heading towards the United States border could not have been scripted any better for the midterm elections. Though more than 1,000 miles away, with an anticipated arrival still weeks away, the narratives from each side of the aisle were quickly brought to the stage and performed with all the dramatic aplomb we have come to expect from the D.C. box-office trying to sell election votes as if they were the hottest ticket in town.
Yet, from among the usual cries of “ISIS hiding among the migrants” and “Republicans are racists for demanding border security,” there are actual issues meriting a far more serious discussion than typically offered in the immigration debate; in particular, what powers does a president legally possess to secure the border against such hordes?
At first blush, it may seem obvious that the president could, and perhaps should, have broad latitude to secure America’s borders; including, as President Trump announced this week, sending the military to the border to serve as needed. However, the doctrine of posse comitatus, codified into the 140-year-old The Posse Comitatus Act, makes this option less clear than conventional wisdom might suggest. Though brief in length and relatively unknown by most Americans, the law is an important safeguard against domestic military occupation; making it unlawful for anyone -- not just the president -- to use the “Army” (meaning, in modern times, any branch of the military) to “execute the laws” unless “expressly” authorized by law or the Constitution.
Since its enactment, Congress has allowed for few exceptions to the Act; for example, the military providing equipment and expertise to fight the drug war, or previous uses of the military at the border in non-combative support roles. These are not exceptions taken lightly, and history and experience have taught us to be very careful with expanding the definition or use of the military for law enforcement purposes; as I and others noted clearly during the Waco hearings, in debates regarding the USA PATRIOT Act, and elsewhere over the years in the post-9/11 “Security State” environment. Nevertheless, deteriorating conditions at America’s border presents new territory for this old law.
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As such, the question we must now ask is whether protecting the integrity of America’s borders against specific threats is a fundamental responsibility of the president, and if using the military to assist in doing so, is a proper exercise of serving as the “commander in chief” as per Article II, Section 2 of the Constitution. I would argue strongly it is, and if Trump’s decision to use armed forces at the border is to protect it, rather than supplement the enforcement of immigration laws, his order this week would not fall within the law’s prohibition.
While the flow of immigrants into the U.S. is rightfully within Congress’ legislative purview (as much as the Obama administration worked to side-step it, hence the mess we are in now), the actual defense of the border, especially in specific instances of direct threats to its integrity, would fall to the president, and in some cases, the governors of border states (under their police power and use of their National Guard units). Different from the long standing conversation about border security generally, thousands of migrants traveling en masse is an entirely different issue with greater national security implications. The circumstances here change from a simple immigration enforcement question (not to mention how, exactly, crime and economic problems in foreign countries are legitimate grounds for granting asylum), to one of genuinely defending the border against a specific threat.
Actual defense of the border, the issue at hand today, is not about immigration directly, but properly ensuring a country’s safety jeopardized by allowing anyone (migrants, gang members, or terrorists) and anything (drugs to disease) unfettered access into our country. Though the caravan of migrants is not the “invasion” some on the Right have made it out to be, it does represent a very real and serious threat to the U.S. by putting our border security at risk and in the global spotlight; a threat that would, if unchecked, serve as an example to others that regardless of intent, to enter the United States one need only swarm it.
Members of the military should not be checking papers and processing migrants; but rather, serve as an impenetrable shield and check against potentially hostile crowds who would see to overrun our struggling Border Patrol, as a tactic to seek entrance into this country not through legal means, but literal force. Is this not precisely what “national defense” means?
There is, of course, the possibility that the military may not be needed at all, or at least not for an extended period of time. Mexico may, in the end, step in and stop the caravan as they too are facing similar issues as the U.S.; not to mention the simple fact of geography and weather may take a heavy toll on the migrating mass and force many to turn back. But it would be irresponsible for the president not to make contingency plans. A preemptive decision by Mr. Trump, in consultation with Congress and the Justice and Defense Departments clearly laying out the President’s ability to legally use the military at the border, would help prevent more serious problems if and when the crowds arrive, and would set an important precedent for the future.
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