The Mounting Crisis of Militarizing Immigration Enforcement
Trump’s actions in Los Angeles are part of a larger effort to militarize immigration enforcement. He has another, lesser-known, tool at his disposal that he can use to dramatically increase the number of Guard troops involved in these types of activities. Known as the 287(g) program, it delegates immigration enforcement to state and local law enforcement agencies. We worry that using 287 (g) agreements to enable National Guard units to enforce immigration laws creates enormous risk, undermines military readiness, and threatens the longstanding traditions of separating military functions from civil society. As one of us has written before, domestic use of the military is often fraught and is just as often corrosive to American democracy. Part-time soldiers police their neighbors, federal authority needlessly displaces state and local elected officials, and the relationship between the military and civil society becomes strained.
Banks and Nevitt write that Trump began militarizing immigration enforcement on his first day in office, laying the groundwork for a confrontation between the military and the public. In his inauguration speech, Trump promised “to launch the largest deportation program of criminals in the history of America.”
The president also stated that he would “send troops to the southern border to repel the disastrous invasion of our country… [because] as commander in chief I have no higher responsibility than to defend our country from threats and invasions.”
The president knows that absent a massive new congressional authorization and infusion of funds to Immigration and Customs Enforcement (ICE) and Customs and Border Patrol (CBP), the immigration infrastructure housed within the Department of Homeland Security (DHS) cannot carry out these plans. Indeed, the “One Big, Beautiful Bill Act” is meant to address this gap, providing $168 billion to immigration and border law enforcement. Thus, the president’s determination to rely on military support for immigration policy is an effort to close the gap in financial and human resources needed. Upon taking office, Trump also signed 10 executive orders on immigration and border enforcement that identified legal authorities that would purport to authorize a significant domestic deployment of the U.S. military for immigration purposes.
One executive order, Declaring A National Emergency at the Southern Border of the United States, allows the Defense Department to deploy troops to secure the border. Presidents George W. Bush and Barack Obama also deployed troops to the border, but Trump has specifically called the situation “a national emergency,” and has labeled the immigration flow an “invasion” that “represents a grave threat to our nation.” More important, the national emergency declaration unlocked funds for further construction of Trump’s border wall, repeating a step he took in 2019. And the order required a report from the Secretaries of Defense and Homeland Security within 90 days “regarding additional actions that may be necessary to obtain complete operational control of the southern border, including whether to invoke the Insurrection Act of 1807.”
A second executive order, Clarifying the Military’s Role in Protecting the Territorial Integrity of the United States, assigned the military with the mission of “repelling the invasion and sealing the United States southern border from unlawful entry …” Trump assigned U.S. Northern Command with this mission, highlighting the military’s new role in preventing unlawful mass migration. Today, there are nearly 10,000 troops at the border, with DHS asking for 20,000 more to assist in deportation.
A third executive order, Protecting the American People Against Invasion, revoked several Biden administration immigration policies; instructed DHS, its immigration agencies, and the Justice Department to hasten the removal of undocumented persons and the civil and criminal prosecution of immigration law violators; and ordered DHS to “construct, operate, control, or use” sufficient removal detention facilities to implement administration immigration policies. Further, Trump called on the Secretary of Homeland Security to partner with state and local law enforcement on signing Section “287(g)” agreements to enforce federal immigration laws.
This last step may be the most powerful immigration enforcement tool that Trump has invoked. The so-called 287 (g) program, added to the Immigration and Naturalization Act in 1996, delegates immigration enforcement to state and local law enforcement agencies as prescribed in individual memorandums of agreement with ICE. In practice, they effectively deputize a nationwide immigration police force that considerably bolsters existing ICE resources.
Trump prioritized these agreements during his first term and has acted with much greater urgency to sign more of them during his second term. The new emphasis is paying off: there are 649 287(g) agreements across 40 states. While most 287 (g) agreements are with local police and sheriffs’ departments, state National Guards can also enter into these agreements. Indeed, there are 287(g) agreements with two state National Guards (Texas and Florida) as well as the Florida State Defense Force (military units that operate under the sole authority of the governor). The Texas National Guard has 19,000 members and Florida National Guard has 12,000. These 287 (g) agreements open the door to a massive expansion of military participation in immigration enforcement.
Banks and Nevitt say that given the outsized role that National Guards are poised to play in federal immigration enforcement, there are several pressing questions and concerns.
· How will training for this new mission be conducted? Prior to actively enforcing immigration law, the law requires that state and local agencies must undergo training—but this requirement appears to be short-circuited in many instances. There are reports that 287 training has now been reduced from four weeks in-person training at the Federal Law Enforcement Training Center to just a 40-hour online training module. Deputizing law enforcement to take on an entirely new complex and dynamic mission in such a manner strikes us as ill-conceived and dangerous—particularly when 287 already has a history of racial profiling and civil rights violations.
· How will ICE effectively oversee this massive effort? In a troubling sign, ICE eliminated the 287 Program Advisory Board, which vetted law enforcement agencies’ applications in conjunction with the newly diminished DHS Office of Civil Rights and Civil Liberties. 287 agreements are now centralized without meaningful vetting. It is unclear how ICE will supervise, train, and integrate National Guard troops into the broader immigration law enforcement missions.
· What is the impact of this new mission on National Guard readiness and civil-military relations? National Guard men and women recently supported the COVID-19 nationwide relief and response effort, the largest domestic military deployment in recent history. In recent years, the U.S. government has asked National Guard personnel to patrol the border, drive school buses, teach in high schools, guard prisons, and take on a host of missions that address problems that are traditionally managed by civilian authorities. The military— particularly the state National Guard—is already a stressed force and government should tread carefully before asking it to take on additional missions. General Daniel Hokanson, the outgoing chief of the National Guard Bureau recently made the same point: time spent on nontraditional missions—such as immigration enforcement—reduces the Guard’s ability to train for core functions (serving in combat overseas, responding to natural and manmade disasters). Although most people welcome the National Guard into their communities following a natural disaster, giving the Guard the immigration enforcement mission changes that dynamic as soldiers detain and arrest their neighbors. Retired National Guard Major General Randy Manner recently testified that these National Guard members “may be placed in an impossible, politically fraught position, eroding domestic civil-military relations.”
They conclude:
The United States has historically been widely respected for its tradition of entrusting law enforcement to civilians–federal agents, local and state police, sheriffs, constables. By contrast, the uniformed military fights wars and keeps Americans safe from foreign adversaries and it is only episodically needed for domestic assignment. American traditions are reflected in the Constitution and are explained in part by antipathy to the English Crown and the heavy-handed use of the British military in the colonies. Although the Constitution enabled Congress to Call Forth the Militia (today’s National Guard) to “repel invasions,” the grant of authority was understood to anticipate the possibility of war being brought to the United States, not to facilitate reaching arbitrarily assigned deportation quotas.
