Trump’s border strategy exposes myths about posse comitatus

Our military was not built for urban renewal projects in Kabul or to referee Sunni versus Shia conflicts in Baghdad. Its primary purpose is to protect our country from foreign invaders. If the military cannot be deployed to address the millions of people strategically funneled into the country by ruthless drug cartels — cartels that are killing hundreds of thousands of Americans with fentanyl — then what purpose does it serve? The fact that these individuals do not remain near the border does not transform mass removals into a domestic law enforcement issue; it remains a matter of national defense.

Many in the media shout, “Posse comitatus!” as if invoking it magically prohibits the military from addressing the invasion, attempting to sound legally astute. Some Republicans, such as libertarian-leaning Rand Paul of Kentucky, express concern over the “optics” of using the military for mass deportations. While cutting off employment and benefit incentives would likely eliminate the need for mass deportations by encouraging many to leave on their own, we cannot legally preclude the military’s use based on a flawed interpretation of the law.

Prudence or ‘optics’ should not mislead us into spreading misinformation about the legal authority we must preserve.

Ulysses S. Grant signed the 1878 Posse Comitatus Act to prevent the military from enforcing domestic Reconstruction-era laws against American citizens in the South without explicit authorization from Congress. But repelling an invasion at the border — or within the nation’s interior — is precisely the kind of mission our founders envisioned for the military. Article IV, Section 4 of the Constitution obliges the federal government to protect states against invasion. We owe this to border states like Arizona and Texas, as well as every state impacted by illegal migration.

Article IV, Section 4 should serve as the constitutional exception to the Posse Comitatus Act prohibition on military enforcement. The Constitution itself
expressly authorizes federal action to secure the nation from invasion, making this a legitimate use of the military in the face of an ongoing crisis.

Even without the constitutional provision, the law itself only prohibits the military from enforcing domestic laws targeting Americans, such as tax laws or traffic regulations, under the direction of local marshals. This prohibition stems from the term “posse comitatus,” which means “the power of the county.” The 1878 law prevents the military from acting as reinforcements to enforce local laws under the authority of a county sheriff.

The act responded to Attorney General Caleb Cushing’s 1854 opinion during the “Bleeding Kansas” conflict, which held that “every person in the district or county above the age of fifteen years,” including “militia, soldiers, marines,” was part of the posse comitatus and subject to the sheriff or marshal’s commands. As the Congressional Research Service notes, Congress was alarmed by this precedent even before 1878 and attempted to restrict it through an Army appropriations bill, prohibiting the use of the military to enforce territorial law in Kansas.

Under Trump’s proposed plan, however, the military would focus solely on those who invaded the country and enforce national sovereignty laws. Just as states can declare an invasion, the federal government has the authority to treat the 10-million-man border incursion as an invasion. When gangs like Tren de Aragua operate across half the states, their numbers exceed the size of any force America’s founders envisioned threatening the nation during the Constitution’s adoption.

Using the military in this context is entirely legitimate. Labeling it “immigration law” does not transform it into a domestic territorial matter outside the scope of national defense.

During “Operation Wetback,” President Eisenhower deported up to 1.3 million illegal aliens using the U.S. military, including National Guardsmen operating under Title 10 federal orders. The operation was completed within a few months, and no court challenges were filed on the grounds of violating the Posse Comitatus Act. At the time, cartels and transnational gangs posed a far lesser national defense threat than they do today.

The absence of legal challenges stemmed from the fact that deportation is not equivalent to a law enforcement action depriving someone of life, liberty, or property — protections covered under the 1878 act. As the Supreme Court ruled in
Fong Yue Ting v. United States (1893):

The order of deportation is not a punishment for crime. It is not a “banishment,” in the sense in which that word is often applied to the expulsion of a citizen from his country by way of punishment. It is but a method of enforcing the return to his own country of an alien who has not complied with the conditions upon the performance of which the government of the nation, acting within its constitutional authority and through the proper departments, has determined that his continuing to reside here shall depend. He has not, therefore, been deprived of life, liberty, or property without due process or law, and the provisions of the Constitution securing the right of trial by jury and prohibiting unreasonable searches and seizures and cruel and unusual punishments have no application.

In short, actions not governed by the laws of due process are not subject to the Posse Comitatus Act’s limitations on military use. If the goal were to prosecute and imprison illegal aliens indefinitely, that would constitute a domestic law enforcement action. However, removing individuals who invaded national sovereignty by escorting them across the international border falls squarely within the military’s legal authority.

A large military force going house to house to deport illegal aliens likely won’t be necessary. Cutting off incentives such as employment, identity theft opportunities, welfare benefits, and K-12 education would prompt most to leave voluntarily. State enforcement of laws, combined with state guard units operating under Title 32 (and not subject to the Posse Comitatus Act), in red states would ensure that any encounter with the state leads to removal. This approach would deter illegal immigration, limiting active deportation efforts to targeting criminal aliens. In fact, some illegal immigrants in Springfield, Ohio,
are already leaving in anticipation of Trump taking office.

Prudence or “optics” should not mislead us into spreading misinformation about the legal authority we must preserve. This is about protecting territorial sovereignty — the very purpose for which America’s founders envisioned a standing army — far more than defending the fragmented territories of warring Islamic capitals.