The migrants President Trump is targeting with this policy consist of unarmed families from Central America moving on foot toward the U.S.-Mexico border. Before the midterm election, Trump painted the group as a grave threat to national security. Despite an already substantial U.S. Customs and Border Patrol presence along the entire border, he deployed military forces, too. It was widely viewed as a transparent attempt to increase GOP turnout in the midterm elections.
Until last week, the White House had not authorized troops to do actual police work, just to provide logistical support — driving vehicles, providing aerial detection and the like. That changed last Tuesday, when Trump pushed for the military to go further, including to detain and even use lethal force against migrants on U.S. soil. He was reportedly met by resistance from some within his own administration, including because they felt these steps were against the law. It has also been reported that the move contravened advice by the White House counsel, Emmet Flood, who voiced concerns about its constitutionality.
Based on our collective near-century of experience in criminal and constitutional law, including in administering these very rules while in government service, those concerns are right, and Trump is wrong. The Posse Comitatus Act, enacted in 1878, restrains the military from performing law enforcement functions on U.S. soil. This statute expresses a principle that runs throughout our Constitution: the “traditional and strong resistance of Americans to any military intrusion into civilian affairs,” as the Supreme Court has noted.
These limitations are motivated by the fear that unscrupulous leaders with control over the military could use it to oppress the public and democracy itself. That concern that has been amply borne out by coups elsewhere around the world and throughout history. Statutory exceptions to this rule are limited to extraordinary circumstances, such as suppressing domestic insurrection, not at issue here.
The deployment of the military before the election was legal, no matter how cynical, because it was limited to background support for law enforcement. But what the new order purportedly permits the military to do — lethal force and detentions in addition to crowd control and searches — crosses the line and constitutes law enforcement activity in violation of the Posse Comitatus Act.
Defense Secretary Jim Mattis has not yet, at least publicly, translated the full scope of the new White House authorization into actual orders. That is good (and is consistent with his caution on this issue to date). But that could change at any time, and Mattis’s delay in implementation cannot justify an illegal White House authorization for the military to engage in prohibited activities.
Mattis also appears to be getting bad advice on the definition of policing. He claims, for example, that troops at the border would not be conducting law enforcement activities because they do not have “arrest authority,” instead just performing detentions limited to “a matter of minutes.”
This distinction is unsupported by law. A brief detention — to question and frisk, for example — is police work. Detaining, even for “a matter of minutes,” must be based on reasonable suspicion that the detainee engaged in unlawful activity. This kind of activity goes beyond mere defense support for police. Distinguishing it from law enforcement does not hold water.
There is another problem with the White House authorization. The approval takes the form of a “Cabinet Order” signed by White House Chief of Staff John F. Kelly. But Kelly, though he is a retired four-star Marine general, is no longer in the military chain of command in his current role. That means the person who signed the order lacks the constitutional and legal authority to issue it. Perhaps the president — aware that the Posse Comitatus Act carries criminal penalties — was unwilling to assume the risk.
What makes this unfolding constitutional crisis even worse is that it is so unnecessary. According to press reports, DHS determined that the caravan posed only a “minimal” threat. Any notion that our troops are needed is belied by footage of the ragtag band of desperate asylum seekers who were repelled by CPB on Sunday. Using tear gas against the group — including women and children — was already excessive. Why introduce combat troops into this volatile mix?
Trump's insistence on pushing U.S. military into a domestic law enforcement role is yet more proof of his autocratic tendencies and contempt for the rule of law. That has ranged from his acceptance of illegal emoluments to his repeated attacks on the judiciary to the substantial evidence he has obstructed justice. His scapegoating of migrants has resulted in courts blocking his first travel ban and his policies on sanctuary cities, child separation and DACA. Just last week, a court enjoined his asylum policy, including as it pertained to these very migrants in the caravan. His determination to politicize the military is yet more proof that he is a petty tyrant — one who would, if we let him, degrade our democracy.
Fortunately, litigants and courts have vigorously pushed back on that inclination. If Trump insists on misusing American troops, he can expect the same litigation here that has greeted his abuses elsewhere — and the same outcome. And while it is too much to hope that the existing and supine GOP Congress will respond, the incoming Democratic-led House may have something to say about this, as well.