Lawfare Daily: How the Trump Administration is Using the Military to Enforce Its New Immigration Policies
Jan 31, 2025
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Chris Mirasola, an Assistant Professor at the University of Houston Law Center and former Defense Department lawyer, shares insights on the military's role in immigration enforcement during the Trump administration. He discusses controversial actions like transporting migrants via military flights and the proposal to detain migrants at Guantanamo Bay. Mirasola also delves into the legal complexities surrounding the Posse Comitatus Act and potential overreach in domestic military involvement, raising important questions about civil-military relations in the U.S.
The Trump administration's deployment of military personnel to the southern border emphasizes logistical support without direct law enforcement roles under the Posse Comitatus Act.
Legal interpretations and potential changes to military rules may lead to increased military involvement in immigration enforcement, raising ethical and constitutional concerns.
Deep dives
Military Deployment at the Southern Border
The Trump administration is deploying an additional 1,500 active duty military personnel to the southern border, primarily to assist with detection and monitoring missions, intelligence analysis support, and logistical tasks. These military personnel will use high-powered binoculars to monitor the border for unlawful crossings and will relay information to Border Patrol agents for potential arrests. Additionally, they will provide logistical support by maintaining Customs and Border Protection vehicles, thereby allowing law enforcement personnel to focus on their core responsibilities. Although the deployment has some elements that differ from previous administrations, much of the military involvement aligns with existing statutory authorities established for defense support to civil authorities.
Legal Constraints on Military Involvement
The Posse Comitatus Act restricts the military from engaging in domestic law enforcement activities, necessitating that military personnel provide support without assuming law enforcement roles. Current military authorities do not grant the military express permission to conduct law enforcement actions, effectively preventing activities such as arrests or detentions by military personnel themselves. For example, while military personnel may assist with deportation flights, they cannot carry out the arrests onboard, which must be done by Department of Homeland Security agents. Legal interpretations suggest that direct participation in law enforcement activities, such as using coercive measures against migrants, remains of primary concern in maintaining the boundaries established by the Posse Comitatus Act.
Utilization of Military Facilities for Detention
There are reports that existing military facilities, such as the Buckley Space Force Base, are being utilized to temporarily detain migrants for Immigration and Customs Enforcement before their deportation. This practice mirrors past situations where military assets were used during emergencies, like the Afghanistan withdrawal, indicating a longstanding precedent for such actions under certain conditions. The historical context includes the Mariel Boat Lift, where military installations housed thousands of Cuban refugees, suggesting that military facilities can be mobilized for humanitarian detentions. Although this use of military installations raises legal and ethical questions regarding the application of the Posse Comitatus Act, it highlights the flexibility the military has in responding to immigration challenges.
Potential Executive Actions and Legal Implications
President Trump has directed a review of military rules of engagement relating to deployments for border security, indicating a potential shift toward a more aggressive military posture. There are concerns that the administration may explore the Insurrection Act, which would allow for greater military authority in domestic law enforcement, alongside a reconsideration of the Constitutional Guarantee Clause regarding state protection against invasion. This evolving legal framework may pave the way for increased military engagement at the border, particularly if National Guard troops are employed under hybrid duty statuses that bypass Posse Comitatus restrictions. The outcomes of these developments will likely influence the extent to which military personnel can be used in future immigration enforcement operations.
For today’s episode, Lawfare General Counsel and Senior Editor Scott R. Anderson sat down with Chris Mirasola, an assistant professor at the University of Houston Law Center and former Defense Department lawyer, to talk through the ways that the Trump administration is using the military to enforce its new immigration policies.
They discussed the steps the Trump administration has taken thus far, from transporting migrants on military flights to threatening to send them to Guantanamo Bay; the legal theories that the Trump administration is putting out there that might justify other, broader uses of the military; additional steps we should expect the administration to pursue in the near future; and what it all might mean for the rule of law and civil-military relations in our country.
