Could the US Military Be Used to Secure the Border?

By Tim Gamble

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Could the US military be used to secure the border? Illegal immigration has skyrocketed during the Biden-Harris administration, leading to huge increases in government (taxpayer) costs to support these illegals, as well as sharply increased crime rates. What can be done about the situation? This question has lead many people to ask if the military could be used to control the border. The answer to that question involves three considerations: the practical (is it legal), the strategic (is there the political will), and the tactical (how exactly would the military secure the border). 

The strategic and the tactical will be left for future articles. This article answers the practical. Is it Constitutional and legal to use the military to secure the border? The answer is unequivocally, yes. 

To back that answer up, I turn you to the Center For Renewing America (CRA) (CRA website link), a Constitutionalist think tank. In July, the CRA released a policy paper (link to the full paper as a .pdf) on this very topic. Below, I present their brief of this paper. 

The US Military May Be Used to Secure the Border

by Center For Renewing America (CRA) Staff 

July 31, 2024

The following is a summary of a full-length legal case for the President’s authority to deploy the military against border invasion.

The President of the United States may at any time deploy the military to stop the border crisis. His constitutional authority to do so is supplemented by numerous statutory provisions, including the Insurrection Act. Uninformed naysayers claim the Posse Comitatus Act (PCA) prevents the military from being used to stop the border invasion. Precisely the opposite is true. The PCA explicitly protects the President’s constitutional powers as Commander-in-Chief of the military, and as the nation’s chief law enforcement officer. As demonstrated in the policy brief by senior fellow Ken Cuccinelli and co-writer Adam Turner summarized below, the President can and should use the military to stop America’s border crisis now.

Introduction

• The Posse Comitatus Act of 1878 (PCA), standing alone, does not preclude using military force to solve the border crisis. 
• The PCA does not derogate the President’s constitutional power to use the military to enforce laws and any attempt to do so would be unconstitutional. 
• The President’s law enforcement power is explicitly protected by the PCA’s proviso that allows the conscription of a posse comitatus when “expressly authorized by the Constitution.” The President’s perpetual constitutional power to command the military and enforce the laws fits into this proviso.
• Further, the Insurrection Act expressly authorizes the President to deploy the military for law enforcement purposes, which fits into the PCA’s proviso that allows for the conscription of a posse comitatus when “expressly authorized by. . . [an] Act of Congress.”

Part I: The PCA Alone Permits the Use of the Military to Solve the Border Crisis

• To violate the PCA, someone must: (1) willfully (2) use the Army, the Navy, the Marine Corps, the Air Force, or the Space Force (3) as a posse comitatus or otherwise (4) to execute the laws (5) in a way that is not expressly authorized by the Constitution or an act of Congress.
• The PCA originated with Southern Democrats during Reconstruction who opposed the use of the military to enforce laws in the postwar South. pgs. 11-14.
• House and Senate debates show the PCA was meant to restrain U.S. Marshals from commandeering a posse comitatus, and was not intended to limit the President:
  • Rep. James Knott (D-KY): “[T]his amendment is designed to put a stop to the practice, which has become fearfully common, of military officers of every grade answering the call of every marshal and deputy marshal to aid in the enforcement of the laws.” pg. 14. 
  • Sen. William Windom (R-MN): “As a matter of course, you cannot limit the power of the President as authorized and granted by the Constitution.” pg. 15.
• The PCA was passed into law by both Republicans and Democrats seeking to prevent disruption to the military’s chain of command. The PCA bars U.S. Marshals, local sheriffs, and other government officials from commandeering the U.S. military. Southern Democrats also sought to limit the use of the military to execute the laws, in order  to end Reconstruction in the South. pg. 16.
• President Hayes and President Arthur both deployed troops to New Mexico and Arizona, respectively, to enforce the laws, with the understanding that their actions were perfectly legal under the Constitution and the PCA. Neither was prosecuted under the PCA. pg. 18-19.
• The PCA fell into obscurity by 1948, but in recent decades the PCA has reemerged, ironically, as a defense asserted by criminal defendants at trial. It has rarely been used to prosecute executive branch violators of the PCA, and no prosecution has ever been successful in convicting an official. pg 19.
• During the Bush II administration, DOJ’s John Yoo and the Homeland Security Act of 2002 both explicitly stated that the PCA does not apply to the President. pg. 22.

Part II: The Insurrection Act Allows the Military to Solve the Border Crisis

• The Insurrection Act, standing alone, and as fitting into the proviso of the Posse Comitatus Act, reinforces the propriety of using the military to combat the border crisis. pg. 23.
• 10 U.S.C. § 252: “Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.”
• When order is threatened by unlawful obstructions, combinations, assemblages, or rebellion, the President may use the military or national guard to suppress threats as long as the emergency is such that “the ordinary course of judicial proceedings” have become impracticable. Looking realistically at the situation in 2024, federal and state law enforcement resources are overwhelmed by the scale and severity of the border crisis. Hence, the President can appropriately call out the military to enforce federal law. Additionally, the Mexican cartels and the hordes of illegal aliens are engaging in unlawful obstructions of the law, as well as unlawful combinations to thwart the law. pg. 24
• 10 U.S.C. § 253:  The President may act if the insurrection “so hinders the execution of the laws of that State, and of the United States within the State, that any. . . of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection.”
• Cartels and illegal aliens vitiate protection by the government; interfere with the enjoyment of life and liberty; strip people of property rights; destroy happiness and safety; and interfere with travel rights, for instance, by kidnapping. As such, Section 253 readily allows the President to use the military to put an end to the border crisis. pg. 25.
• The Military Cooperation with Civilian Law Enforcement Officials Act (MCCLEOA) further encourages cooperation between the military and law enforcement, and does not infringe upon the constitutional powers the President retains or those granted by the Insurrection Act. pg. 29.
• The National Defense Authorization Act (NDAA) states that the President “may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel [an] invasion, suppress [a] rebellion, or execute [the] laws. ” pg. 30.

Part III: The President Has Inherent Constitutional Authority to Use the Military to Secure the Border

• When the President wields his constitutional powers to use the military for law enforcement, he also typically acts consistently with his statutory powers under the Insurrection Act, the MCCLEOA, and the NDAA. pg.32.
• Article II, Section 2, Clause 1: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.
• Article II, Section 3: The President shall take Care that the Laws be faithfully executed.
• John Yoo, commenting on Article II, Sections 2-3: “These powers give the President broad constitutional authority to use military force in response to threats to the national security and foreign policy of the United States… By their terms, these provisions vest full control of the military forces of the United States in the President.” pg. 35.
• John Yoo, Congressional Testimony, 2001: “To the extent that the [Constitution] does not explicitly allocate to a particular branch the power to respond to critical threats to the nation’s security and civil order, the Vesting Clause provides that it remains among the President’s unenumerated executive powers…. [T]he Framers understood the executive and commander in chief powers to give the President the full constitutional authority to respond to an attack. It was clearly understood that this authority included the power to use force domestically as well as abroad.” pg. 36-37.
• Article IV, Section 4: “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”
• History gives many examples of the Executive using military force to keep order and respond to emergencies.
  • In 1794, Washington used the military to put down the Whiskey rebellion, and in 1799, Adams used federal troops to put down the Fries Rebellion. pg. 41-42.
  • Lincoln and Grant used federal troops to keep order in the South during Reconstruction, and established military tribunals to administer justice. None of this was opposed by Congress or the courts. pg 44.
• Presidential authority to safeguard the interior of the Nation through use of his Commander-in-Chief and his Chief Magistrate powers, used either alone or together, clearly includes efforts to control the border. pg. 45.

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