ARGUMENT: EMERGENCY POWERS AT THE BORDERBiden’s Resurrection of Emergency Powers at the Southern Border

On 2 May, the Pentagon announced that an additional 1,500 active-duty soldiers and Marines will be sent to the southern border to support DHS. There have been reports for some time about Biden’s adoption of Trump-era southern border policies, Chris Mirasola writes in Lawfare, adding: “The same can be said of the striking similarities between how the Trump and Biden administrations use law (both emergency and non-emergency powers) to sustain the continued deployment of thousands of military personnel at the southern border.”

He continues:

Last week the Defense Department announced that Secretary of Defense Lloyd Austin approved a 90-day deployment of 1,500 active-duty personnel in response to a request for assistance from DHS, the usual forcing mechanism for deployments at the southern border. These personnel will provide “ground-based detection and monitoring,” “data entry,” and “warehouse support.” And the public was informed that the Defense Department will try to replace these active-duty forces with reserve component (for example, Army Reserve or Army National Guard) personnel and contracted support. Importantly, these 1,500 personnel won’t be alone. There are already 2,500 military personnel providing “detection and monitoring” and “aviation support” to DHS at the southern border.

On his first day in office, President Biden signed Proclamation 10142, which terminated the national emergency declared by President Trump at the southern border. The proclamation largely criticized the border wall, which in part was built using a construction authority (10 U.S.C.§ 2808) that Trump made available through the emergency declaration. But this declaration did more than just pave the way to building a wall. It also made available 10 U.S.C.§ 12302. This statute authorizes the secretaries of the military departments, in response to a national emergency, to order any member or unit of any reserve component (including National Guard personnel) to active duty, without their consent, for no longer than two years. It’s likely, though reliable numbers are not readily available, that at least some of the thousands of National Guard personnel sent to the border during the Trump administration were deployed under this authority.

Biden took the first step toward a return to emergency authority on Dec. 15, 2021. In Executive Order 14059, he found that “international drug trafficking … constitutes an unusual and extraordinary threat to the national security, foreign policy, and economy of the United States.” In response, he ordered the secretary of the treasury to impose specified sanctions and restricted the entry of noncitizens who qualified for such sanctions. On April 27, 2023, in Executive Order 14097, Biden again made the authority provided in § 12302 available to respond to this emergency.

Swapping out emergency authority to build a wall for emergency authority to sanction narcotraffickers, Executive Order 14097 in all but name resuscitates the operational authorities provided by Trump’s executive order. There is certainly a difference in rhetoric and policy focus—Trump’s centered on migration, Biden’s on drug trafficking. But as a legal matter, they both uncorked nearly unrestricted, easy access to military personnel for the southern border.

Mirasola concludes:

It’s entirely correct, as DHS notes, that the Department of Defense has for the vast majority of the past two decades provided support at the southern border. But easy access to any component of the Defense Department appears to be turning into a new normal, made available under shifting but substantially similar emergency declarations. Thousands of military personnel are consistently deployed to the border. And all of it is funded by the Defense Department. All of which is to say that, in an increasingly substantial way from which it may be increasingly difficult to retreat, U.S. border security has become a Defense Department mission.