In a second Donald Trump presidency, his staff’s planned crackdown on illegal immigration not only envisages mass detention of those allegedly “poisoning the blood” of America, but also resurrects a bad idea rejected at the outset of his first term: deputizing the National Guard for internal immigration enforcement. This is part of a longstanding effort by Trump officials, most of whom lack uniformed experience, to drag the military into domestic law enforcement and politics. It is profoundly unwise, and among the grave dangers presented by a Trump restoration.
In January 2017, Trump’s White House staff proposed using existing federal law to deputize state and local law enforcement to also exercise immigration enforcement powers, including conducting warrantless searches, interrogations and arrests of suspected illegal aliens. Another federal statute, known as “Section 287(g) authority,” can also reasonably be read for this power to extend to the National Guard, which through state governors maintains law enforcement powers denied to uniformed federal servicemembers.
A memorandum sent by the White House for DHS Secretary John Kelly’s signature proposed authorizing the National Guard, including from non-border states, and even loosely organized and politically appointed militias from those states, to perform the functions of immigration agents. At the time, I was (briefly) the only Republican appointee in DHS’ Office of General Counsel. This draft memo was so ill-advised that I asked for it not to be forwarded to the secretary; rather I immediately briefed him about its existence. Kelly, a retired Marine Corps general, did not need to respond verbally: He just emphatically shook his head “no.” Someone else promptly leaked the memo’s existence; the White House denied its provenance.
Reasons to reject this idea are obvious to anyone with military experience. The National Guard is a critical part of the Department of Defense; it provides wartime strategic reserves, as in Afghanistan and Iraq. The Guard further provides governors with organized manpower to respond to natural disasters and domestic unrest. Some units do riot control training, and can be given authority by governors to detain looters for example, but guardsmen are emphatically not criminal investigators.