If the initial plan is termed a success by the administration, officials believe the zone would eventually stretch west to California.
Donald Trump has decided to go ‘nuclear’ on the migrant crisis by allowing the military to take control of a ‘buffer zone’ near the Southern border with Mexico.
Trump’s ambitious plan would turn the 60-foot deep buffer zone into a military installation at the border and allow US troops to temporarily hold migrants who cross over into the America.
A defense official told The Washington Post that the migrants would be held until legally detained by civilian law enforcement.
The president has made fixing the migrant issue the top of his second term agenda and has seen success early on with illegal crossings plummeting from the record highs under predecessor Joe Biden.
Now, Trump’s homeland security team is reportedly set to announce plans to take greater control over the partition in a section in New Mexico.
If the initial plan is termed a success by the administration, officials believe the zone would eventually stretch west to California.
The designation would allow the Pentagon to deploy resources from its massive $800billion budget on the border crackdown.
When reached by DailyMail.com, a Pentagon spokesperson said they ‘have nothing to announce at this time.’ DailyMail.com has reached out to the White House and the Department of Homeland Security for comment.
The military is largely prohibited by federal law from many law enforcement duties by the Posse Comitatus Act.
Trump has gotten around the law during his second term by using Customs and Border Patrol (CBP) or Immigration and Customs Enforcement (ICE) to detain migrants and then moving them.
The Pentagon is seeking counsel from the military on whether or not this could cause legal problems.
A legal theory for how this would work is comparing migrants entering the buffer zone to trespassing upon a military base.
‘It’s very, very careful on that wording. It’s not ‘detention’ because once you go into detention it has the connotations of being detained for arrest. This is holding for civilian law enforcement,’ a Defense official said.
Troops would then give the migrants over to the proper authorities.
Defense Secretary Pete Hegseth has previously backed using the military at the border.
‘We have defended other places and other spaces. We will defend this line,’ he said in February.
The stretch of land in New Mexico that would serve as a test is federal land Theodore Roosevelt set aside specifically for protecting the border in 1907.
The land is usually monitored by the Department of the Interior, though in the past, pieces have been given over to the Pentagon, as recently as Trump’s first term.
Federal law allows government transfers of federal land from Interior to DOD of 5,000 acres at a time without having to go through Congress.
The Trump White House has been experimenting with ways to deploy the military to the border since returning to office.
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How Trump Could Deploy the Military for Mass Deportation
There are several legal authorities a president can use, with varying levels of power, limitations, and potential legal challenges
Published: December 3, 2024
President-elect Donald Trump has promised to carry out the largest deportation operation in American history. While he has provided few specifics about how his administration would accomplish this, Trump has indicated that he will declare a national emergency and that he will invoke both the Insurrection Act and the Alien Enemies Act. A common theme in almost all of his statements is his intent to deploy the military.
The prospect of heavy military involvement in immigration enforcement has generated alarm in many quarters. But the authorities that Trump might summon—and the hurdles he might face in using them—are not widely understood. This article seeks to identify and elucidate them. Starting with the baseline constraint on military participation in law enforcement, the Posse Comitatus Act, the discussion below sets forth the relevant statutory authorities in escalating order of potency and identifies potential constraints on their use.
This article is intended as both a primer and a reference (i.e., readers can skip to the particular authorities about which they may have questions). The authorities covered may be summarized as follows:
- Chapter 15 of Title 10 of the U.S. Code has several provisions allowing federal armed forces (including active-duty forces and federalized National Guard forces) to assist with law enforcement, including through the provision of military facilities and equipment, without directly participating in core law enforcement activities.
- A declaration of national emergency under the National Emergencies Act could provide additional resources for military assistance to law enforcement but would not permit federal armed forces to participate in core law enforcement activities.
- 32 U.S.C. 502(f)(2)(A) allows the president to request (but not require) that governors deploy their states’ National Guard forces to perform certain federal missions, free from the constraints of the Posse Comitatus Act—i.e., Guard forces could participate in core law enforcement activities.
- The Insurrection Act, generally regarded as the primary statutory exception to the Posse Comitatus Act, allows the president to federalize National Guard forces and to deploy them and active-duty armed forces anywhere in the country.
- The Alien Enemies Act does not itself authorize military deployment, but when combined with the Insurrection Act or other authorities, it could permit the militarized deportation of immigrants lawfully in this country under specified conditions.
More on all of these authorities can be found on the Brennan Center’s “Domestic Deployment of the Military” and “Outdated and Dangerous” webpages.
Posse Comitatus Act
What Does It Prohibit?
The Posse Comitatus Act embodies a long Anglo-American tradition against military involvement in civilian affairs. It prohibits federal armed forces from acting “as a posse comitatus or otherwise execut[ing] the laws”—i.e., from participating in civilian law enforcement activities, whether criminal or civil—unless “expressly authorized” by Congress or the Constitution.
The Department of Justice has concluded that the Constitution gives the president the “inherent” power to unilaterally deploy the military for law enforcement purposes in some circumstances—for instance, to protect federal personnel or property. A straightforward reading of the Constitution, however, reveals no express authorization for such deployment. Accordingly, any military action that relies solely on these “inherent” powers should be deemed to violate the Posse Comitatus Act, and should be sustained only if it falls within the president’s “conclusive and preclusive” sphere of authority (per Justice Robert Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer).
What Are the Limitations?
As set out in a recent Brennan Center report, there are multiple exceptions to the Posse Comitatus Act and significant gaps in its coverage:
- The law applies only to federal armed forces. It does not bind the National Guard unless the Guard has been called into federal service. As discussed below, the National Guard may perform federal missions (such as border security) under Title 32 without being federalized.
- Courts have construed the Posse Comitatus Act to prohibit only direct participation in core law enforcement activities, such as arrests, searches, and seizures. A wide range of indirect support to law enforcement—including conducting reconnaissance, sharing intelligence, and providing/maintaining military equipment—remains fair game, even if such support is integral to a law enforcement operation.
- Courts also have held that the Posse Comitatus Act does not apply to actions that have a primarily military purpose, regardless of any incidental benefits to civilian law enforcement authorities. Trump conceivably could try to invoke this doctrine based on his characterization of unlawful migration as an “invasion.” Any such attempt should fail given the absence of an armed attack by a foreign power (see Alien Enemies Act discussion, below).
- There are many statutory exceptions to the Posse Comitatus Act—most importantly, the Insurrection Act, discussed below.
Title 10 Chapter 15 (Military Support for Civilian Law Enforcement Agencies)
What Does It Permit?
Chapter 15 of Title 10 of the U.S. Code (which includes the 1981 Military Cooperation With Civilian Law Enforcement Agencies Act and other authorities) authorizes a range of federal military assistance to law enforcement agencies, but does not authorize direct participation in core law enforcement activities. Most notably:
- 10 U.S.C. § 272 allows the Secretary of Defense to make available any military equipment, base facility, or research facility to any federal, state, or local civilian law enforcement official for law enforcement purposes.
- 10 U.S.C. § 273 allows military personnel to provide training to federal, state, and local civilian law enforcement officials in the operation and maintenance of equipment, and to provide expert advice.
- 10 U.S.C. § 274 allows military personnel to maintain equipment on behalf of federal, state, and local civilian law enforcement, and to operate such equipment in specified situations and for specified purposes.
- 10 U.S.C. § 284 authorizes certain types of military support for counterdrug activities or activities to counter transnational organized crime of any federal agency or any state, local, tribal, or foreign law enforcement agency. In the case of domestic agencies, the permissible types of support include:
- Maintenance and repair of military equipment;
- Transportation of personnel, supplies, and equipment;
- Establishment and operation of bases of operations or training facilities;
- Training of civilian law enforcement personnel;
- Detection, monitoring, and communication of the movement of air, land, and sea traffic within 25 miles of the geographic boundaries of the United States;
- Construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries;
- Establishment of command, control, communications, and computer networks for improved integration of law enforcement, active military, and National Guard activities;
- Provision of linguist, intelligence analysis, and planning services; and
- Aerial and ground reconnaissance.
These authorities have long been used to enable Department of Defense support of the Department of Homeland Security’s activities at the southern border.
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