Lawfare Daily: Deploying the Military at the Southern Border, with Chris Mirasola
Nov 26, 2024
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In this discussion, Chris Mirasola, an Assistant Professor of Law at the University of Houston Law Center, delves into the legal intricacies of deploying military forces at the U.S. southern border. He explores the ramifications of declaring a national emergency for immigration enforcement and the controversial use of the National Guard in law enforcement roles. Mirasola emphasizes the historical context and legal frameworks surrounding military involvement, while raising concerns about the implications for civil liberties and the potential normalization of military actions in domestic affairs.
The potential deployment of the military at the southern border could significantly blur the lines between military and law enforcement roles, raising concerns about civil-military relations.
A national emergency declaration may facilitate expanded military powers for immigration enforcement, challenging existing legal frameworks and preventing militarization of domestic law enforcement.
Deep dives
Military Involvement at the Southern Border
The potential deployment of the military to assist in immigration enforcement at the southern border has raised significant concerns regarding the legality and implications of such actions. Historically, military personnel, such as the National Guard, have operated in a supportive role to Customs and Border Protection (CBP) without direct law enforcement functions due to the Posse Comitatus Act, which restricts military involvement in domestic law enforcement. However, recent statements suggest that there may be plans for a more direct role in law enforcement, which could represent a substantial shift from previous practices. This change could include the military being tasked with arresting and detaining migrants, significantly blurring the lines between military and law enforcement roles and raising concerns about civil-military relations.
Legal Framework and Emergency Declarations
The existing legal framework allows for military support under a declared national emergency related to drug trafficking, which facilitates rapid mobilization of the National Guard. While the current use of military personnel at the border has been largely supportive and non-enforcement based, proposals for a new national emergency declaration could expand their powers and responsibilities significantly. Such an expansion raises questions about adherence to existing laws and the safeguards designed to prevent militarization of domestic law enforcement. The loophole allowing this transition, wherein the National Guard's hybrid status can bypass Posse Comitatus restrictions, poses a risk of increased military authority and operational scope.
Comparison with Historical Military Deployments
The historical precedent for using the National Guard and military at the southern border exists, though their roles have traditionally been limited to detection and support, rather than direct law enforcement. Under past administrations, military personnel provided surveillance and communication support without engaging in arrest functions. If the current administration moves towards a more assertive military presence, such as direct law enforcement at the border, it would mark a significant departure from recent practices and historically established norms. This scenario could lead to unprecedented military engagement in domestic immigration enforcement and potentially impact the broader scope of military domestic operations.
Potential Consequences of Enhanced Military Authority
The shift towards an increased military role in immigration enforcement poses potential risks and concerns regarding civil liberties, military ethics, and the separation of powers. While some argue this may enhance border security, the implications for civil-military relations and the normalization of military involvement in domestic affairs warrant critical examination. If military personnel were to take on direct law enforcement responsibilities, this could set a precedent for future deployments and use of military force in civilian contexts beyond immigration. The long-term ramifications could contribute to a culture of militarization in American society, affecting how law enforcement and community relations evolve.
Lawfare Editor-in-Chief Benjamin Wittes sits down with Chris Mirasola, Assistant Professor of Law at the University of Houston Law Center, to discuss the legal and practical considerations surrounding a president’s ability to deploy the military at the U.S. southern border, particularly in light of President-elect Trump’s recent endorsement of “declar[ing] a national emergency” in order to “use military assets” for “a mass deportation program.” They discuss the implications of a national emergency declaration for immigration enforcement, the existing legal framework and historical context, and concerns about using the National Guard in a law enforcement function. They also talk about the logistics of building detention facilities, the Insurrection Act as a significant legal tool that could expand military authority in domestic contexts, and more.
