The Lawfare Podcast Lawfare Archive: Deploying the Military at the Southern Border, with Chris Mirasola
Nov 29, 2025
In this engaging discussion, Chris Mirasola, an Assistant Professor of Law specializing in national security, dives into the critical legalities of deploying military forces at the U.S. southern border. He explains how a potential national emergency declaration could reshape military roles, including contrasting support functions with direct law enforcement duties. Chris also explores the implications of the Insurrection Act and the National Guard's unique position, while addressing logistical challenges of military construction and potential delays from litigation. The conversation sheds light on the profound implications of such military involvement in domestic matters.
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National Emergency Already Powers Border Deployments
- A national emergency already enables DoD to mobilize reservists and National Guard faster for border support.
- About 2,000 military personnel have supported CBP at the southern border across recent administrations.
The National Guard Loophole Around Posse Comitatus
- Posse Comitatus bars the armed forces from law enforcement unless an exception applies.
- National Guard in a state-status/federal-mission hybrid escape Posse Comitatus, creating a major loophole.
From Binoculars To Arrests: A Significant Shift
- Historically military at the border have performed detection/monitoring and alerted CBP, not arrests.
- Trump's public statements suggest he envisions military arresting and detaining migrants, which would be novel.