The Military and the Border: No Laughing Matter
President Trump’s recent deployment of approximately 6,000 active-duty troops, and roughly 2,000 national guardsmen, to the southern border, in response to the migrant caravan headed toward the United States has provoked a storm of criticism. So-called “legal experts” have repeatedly opined that the Posse Comitatus Act of 1878, which prohibits the use of the military to enforce civilian laws, bars the use of the military for border enforcement activities.
Meanwhile, the online satirical publication The Babylon Bee published an article titled, “Trump Criticized For Using US Military For Bizarre Purpose Of Defending Nation’s Borders,” which poked fun at the apparent belief that American armed forces may be deployed anywhere on earth – except in the U.S. to defend its borders. It humorously observed, “No one is sure where Trump got this strange idea that the military is supposed to be used to secure the nation’s borders.”
So, what’s the truth? Is using the military to secure our borders a shocking proposition? Or is border security such an obviously appropriate use of the military that there shouldn’t even be any debate about it?
First off, it is unclear whether the Posse Comitatus Act extends to border management functions. That legislation specifically prohibits the use of the military to “execute the laws.” However, the provision doesn’t specify which laws are being referenced.
That may sound like an exercise in legal semantics but the Posse Comitatus Act, contrary to popular opinion, does not derive from any constitutional or common law doctrine. It was, in fact, a racist piece of legislation sponsored by southern lawmakers who wished to keep the Union Army from being used to enforce the rights accorded to freed slaves living in the former Confederacy. (From just one relevant law review article: “…commentators, and courts, have simply avoided or minimized the Act’s brutal racist origins.”)
In addition, it’s worth noting that the posse comitatus rules were drafted before the formation of the U.S. Border Patrol, when all land border enforcement activities were handled by the U.S. Army. Accordingly, there is no reason to believe that Congress even conceived of border enforcement as a civilian law enforcement function at the time the bill was formulated and passed.
It is much more likely that border protection was viewed as a simple, and appropriate, exercise of American sovereignty. Thus, there is no reasonable indication that Congress intended its ban on the use of the armed services in civilian law enforcement activities to have any effect whatsoever on the military’s border security responsibilities.
Prior to the existence of full-time, professional police forces, the military was frequently assigned civilian law enforcement duties. And, in fact, long after urban police forces became common – and well after the passage of the Posse Comitatus Act – the military was regularly used to secure the border. President Woodrow Wilson deployed troops to the southern frontier to defend against raids by the Mexican bandit/revolutionary Pancho Villa.
While The Babylon Bee isn’t a source for hard news, this may be one of those situations where the humorists have perceived a truth that the alleged “experts” simply refuse to see. Cops don’t repel invasions. A column of thousands of foreigners, advancing on the United States with a clearly expressed intention to enter our territory whether we like it or not, can only be described as an invasion. And that’s just the type of threat to U.S. sovereignty, and national security, that the military was intended to handle.