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Fact Sheet: Military on the Border

By Theresa Cardinal Brown

Thursday, April 12, 2018

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On April 4, 2018, President Trump signed a memorandum to Defense Secretary Jim Mattis, Homeland Security Secretary Kirstjen Nielsen, and Attorney General Jeff Sessions ordering the deployment of National Guard troops to the U.S.-Mexico border to help the Department of Homeland Security in its border security mission. This fact sheet presents basic information about the use of the United States Armed Forces to secure the border.

Past Presidents Have Deployed Troops to the Border

  • Both Presidents George W. Bush and Barack Obama deployed National Guard troops to assist the Border Patrol during their administrations.
    • Bush created “Operation Jumpstart” that deployed up to 6,000 National Guard troops at any given time, who performed duties such as monitoring surveillance, assisting with vehicle maintenance, and fixing border fences.
      • Under this operation, National Guard troops remained under the control of their state’s respective governors, but the federal government reimbursed the states for the costs of the deployment.
    • Obama deployed 1,200 National Guard troops during his first term under similar arrangements but focused more on aerial surveillance.

U.S. Law Restricts what the Military Can Do at the Border

  • The law that allows state-based National Guard troops to support federal efforts is called Title 32 of the United States Code. Under this title, state governors can deploy their state National Guard troops to support a federal mission, while remaining under the governors’ control.
    • The law allows a governor to place state National Guard troops in full time status, under the command and control of the state but funded with federal dollars.
    • The Defense Department oversees the operational missions of National Guard assets called into Title 32 status, after negotiation with the governors, and in close coordination with the Department of Homeland Security.
  • U.S. law prohibits active-duty military from performing law enforcement functions within U.S. territory except in very restricted cases.
    • The Posse Comitatus Act, signed into law in the late 1800s, prohibits the use of federal military assets in support of enforcing domestic policies.
      • The act applies to federal military but does not apply to National Guard troops acting under state authority. Governors can order National Guard troops to assist with law enforcement under the governor’s authority within state law.
      • However, immigration and customs law is considered federal law enforcement and therefore, not under state authority. Therefore, National Guard troops deployed under Title 32 cannot make arrests or seizures at the border.
      • Any National Guard troops deployed to the border have mostly performed support functions, allowing more Border Patrol agents to actively patrol the border.

Congress must figure out how to pay for troops at the border

  • Congress appropriates money to cabinet departments in specific amounts for specific purposes. The president cannot move that money between departments or use it for different purposes without congressional authorization. This would include using military assets in support of the Border Patrol.
  • Under Title 32, the federal government is authorized to reimburse the states for the costs of National Guard deployments in support of federal missions.
    • This funding would normally come from the Department of Defense budget.
      • The Homeland Defense mission of the Department of Defense is most aligned with the border support mission.
      • The 2018 omnibus bill did not provide specific funding to pay National Guard troops acting in Title 32 capacity for Homeland Defense activities.
      • The Defense Department has not yet stated how it will pay for the costs associated with the new National Guard deployments.

KEYWORDS: PRESIDENT BARACK OBAMA, THERESA BROWN, DEPARTMENT OF HOMELAND SECURITY, PRESIDENT GEORGE W. BUSH, BORDER PATROL