Presidential Executive Orders: National Guard Use on the Border

In his first two days in office, President Trump issued several executive orders laying the foundation for using the National Guard on the southwest border. National Guard units are uniquely qualified to function in this capacity due to active duty limitations in performing ‘law enforcement’ activities under the Posse Comitatus Act. Without resorting to the Insurrection Act of 1907, active duty forces cannot perform any ‘law enforcement’ functions. Here is a brief rundown of these EOs:

The first was a declaration of a national emergency at the southern border of the United States. Language declaring an emergency is required for the president to mobilize national guard forces under 10 USC 12302. Notably, forces mobilized under this title remain subject to the Posse Comitatus Act.

A second EO declared an active ‘invasion’ of the southern border. The declaration of an invasion allows the President to utilize 10 USC 12406, a little-known and never-used provision of law. 12406 ‘calls forth’ the militia into the Federal government's service and does so without regard to the Posse Comitatus Act.

While Governors can consent to conduct Federal immigration missions under Title 32 Sec. 504 (f), the above executive orders clearly and aggressively direct the President’s administration to employ Guard military forces in law enforcement support or direct action capacity.