Security on the Southern Border: What is the National Guard’s Role?

By Travis L. Eddleman, Christopher Maye, Meagan van Harte

Abstract

The United States border remains a concern as the number of border crossings has drastically increased over the last few years, highlighting concerns about U.S. immigration policy and the simultaneous issues of international criminal activities. The Department of Homeland Security increasingly calls upon the Department of Defense to provide troop support. Considering increased requests for DOD assistance and persistent security issues along the southern border, DHS and DOD must determine the most effective assignment of military responsibilities, specifically how to best employ the military, especially National Guard elements, while DHS develops abilities to execute the mission of border security independently. Reassigning DOD assets and focusing them in a planning capacity instead of dispersing them across the border could avoid running afoul of the Posse Comitatus Act, reduce perceived military encroachment into the civil law enforcement sphere, and force DHS to assume full control and responsibility of their constitutionally mandated mission.

The United States border remains a concern for the U.S. government as the number of migrants seeking to cross has progressively increased from 2021 to present[1], highlighting growing bipartisan and international concerns about U.S. immigration policy and the simultaneous issues of international criminal activities such as drug and human trafficking and terrorism. Exploitation of the southwest border seam for illegal activities has stressed Department of Homeland Security (DHS) capabilities and caused unease about the future of United States security.[2]

To address the overlapping criminal and immigration problem sets on the southern border in the short-term, DHS has increasingly called upon the Department of Defense (DOD) to provide troop support. DHS has issued numerous requests for assistance (RFAs) to DOD seeking help with border security, wherein the Secretary of Homeland Security petitions the president to order the Secretary of Defense to aid with the DHS mission. Reserve and National Guard elements from various states often receive the task of addressing these unique missions. Since 2018, DHS has submitted 33 RFAs to DOD to reinforce short-staffed and underfunded DHS elements.[3]

Considering increased requests for DOD assistance and persistent security issues along the southern border, DHS and DOD must determine the most effective assignment of military responsibilities, specifically how to best employ the military, especially National Guard elements under federal authorities, while DHS simultaneously develops the ability to execute the border security mission independently. To address these intersecting criminal and immigration problems, Tussing advocated for greater cooperation between DOD and DHS, with the military adopting greater levels of responsibility.[4]Coordination at federal, state, and local levels remains necessary to an effective and efficient solution at the U.S. border.[5]Considering continued and increasing requests for DOD support along the border, DOD and DHS will not resolve the problem of how best to deploy National Guard troops within the proper legal scope absent collaborative efforts to determine appropriate military responsibilities.

Irregular Immigration, U.S. Security, and Military Partnerships: Background and Context

In 1989, the military established Joint Task Force 6 (JTF-6) and charged the task force with coordinating expanding counterdrug efforts assigned to the U.S. military. Until 1997, JTF-6 conducted frequent operations using both air and ground assets along the United States’ southern border. However, an unfortunate incident in 1997 involving the death of a young man at the hands of a Marine rifle team under the control of JTF-6 brought significant negative attention to military border operations. In the time since this incident, JTF-6 received a redesignation to Joint Task Force-North (JTF-N), reduced the number of personnel and ground forces operations along the border, and adopted an “observe and report” structure which limited kinetic military maneuvers targeting drug trafficking operations and reduced U.S. military ground involvement on the border to serving as eyes and ears for U.S. Border Patrol (USBP).[6]

JTF-N’s “main contribution [to U.S. security] is in intelligence and information sharing, and in facilitating the introduction of other military forces to accomplish specified ends.”[7] Since 2004, JTF-N has executed its mission in several ways, including planning and oversight of National Guard units deployed to the border[8] and fulfilling the role of a “joint service command comprised of active-duty and Reserve Component[s providing] support to U.S. law enforcement agencies in identifying and interdicting transnational criminal organizations.”[9]

DOD now deploys forces to the southern border in response to requests for assistance from DHS. Even the 9/11 Commission Report revealed several long-term shortfalls within U.S. immigration agencies. The report detailed numerous lessons learned from events leading to the attacks on the World Trade Center, many focusing on the impact of irregular migration on U.S. security. In 1993, the Immigration and Naturalization Service (INS) employed enough personnel to reinforce the border security effort; however, manual typewriters and paper watchlists for port of entry (POE) inspectors limited USBP capabilities. In response, the INS implemented measures to automate the terrorist watchlist. By 1996, new laws made it possible for INS to enter into agreements of understanding with state and local law enforcement agencies (LEAs), allowing INS to train and task LEAs with immigration enforcement responsibilities. Three years later, the Department of State pioneered a database to maintain current information about watchlist subjects, and the Clinton administration rearranged the INS’s Border Patrol force to average one agent for every 0.25 miles along the United States’ southern land border with Mexico, effectively doubling previous strength levels. This left one agent for every 13.25 miles of the northern land border between Canada and the United States, not including the unpatrolled border between Canada and Alaska.[10]

The Homeland Security Act of 2002 later abolished the INS and opened the door for 22 federal organizations to work together under the newly established DHS. Upon publication of the 9/11 Commission Report, the INS had distributed their personnel sufficiently along the northern border but left the southern border without sufficient personnel to perform necessary duties. In 2005, USBP, strengthened by the intelligence and anti-smuggling assets of Immigration and Customs Enforcement (ICE), introduced a new strategy focused on the land border between POEs, aiming to increase security through deterring, apprehending, and detecting smugglers, criminals, and terrorists.[11]

DHS and DOD have interlocking, mutually supporting missions to defend and protect the United States and its people from criminal and terrorist activities. DHS and its subordinate agencies carry most of the responsibility for protecting U.S. borders through deterring illegal immigration, drug trafficking, and terrorist activities.[12] Nested in the DHS mission, USBP and CBP agents complement each other to prevent terrorists, weapons of mass destruction, and criminals from entering the United States at and between POEs. The U.S. Border Patrol employs 85 percent of its agents along the southern land border, where 98.7 percent of all illegal migration apprehensions occur.[13]

Despite increased security at each POE and added USBP agents between POEs, Transnational Criminal Organizations (TCOs) continue to exploit the border migration crisis for their own organizational gain.[14] TCOs are the primary facilitators of drug trafficking and the subsequent deadly effects on the U.S. population. Illicit drug use and overdosing ranks as a leading cause of death among Americans, with over 81,000 deaths in 2023.[15] These drugs enter the United States overland and underground using any of the hundreds of tunnels between Mexico and the United States.[16] DOD, through JTF-N, has combatted this deadly influx of drugs over the past 16 years by seizing $15.2 billion worth of illegal drugs.[17]

In 2006 with Operation Jump Start, the federal government began increasing National Guard involvement in addressing irregular immigration issues on the southern border. For two years, more than 6,000 National Guard soldiers executed operations to support USBP. With the presidential emergency declaration and the activation of National Guard forces under JTF-N oversight, National Guard involvement has allowed USBP to return hundreds of agents to the field where they execute their law enforcement duties.[18] Chief David Aguilar of the USBP addressed the U.S. Congress, relaying how National Guard support over the previous two decades had served as a force multiplier, allowing Border Patrol to “place those properly trained officers on the line . . . to give [Border Patrol] greater capacity.”[19]

In 2010, President Obama followed suit, issuing an executive order to deploy approximately 1,200 National Guard personnel to the border as a temporary stopgap pending provision of additional assets and personnel to DHS in Operation Phalanx.[20] During the operation, soldiers and airmen from the National Guard helped DHS seize more than 14,000 pounds of drugs, apprehend more than 7,000 illegal immigrants, and confiscate millions of dollars of counterfeit money.[21] President Trump utilized the National Guard in a similar capacity beginning in 2019, and it has continued into the present administration, following President Trump’s emergency declaration on the southern border. U.S. Northern Command (NORTHCOM) has echoed the sentiments expressed by USBP leadership, maintaining DOD support has provided mission-enhancing capabilities directly enabling the USBP to conduct their law enforcement mission in support of DHS border security priorities.[22]

DHS agencies continue to face an overwhelming influx of migrants across the southern border while their own staffing numbers continue to diminish,[23] perpetuating the cycle of increased need for DOD support to accomplish their mission. In Fiscal Year (FY) 2020, HSI’s Enforcement Removal Operations (ERO) recorded 374,000 criminal convictions and 103,603 administrative arrests for homicide, kidnapping, robbery, assault, and sex crimes, while ordering 122,233 detainers for similar crimes. By the end of FY 2020, ERO actions led to 185,884 removals, including 4,276 known or suspected gang members and 31 known or suspected terrorists.[24] In addition, the USCG logged 14,500 detections and 5,000 migrant interdictions during FY 21. Operation Vigilant Sentry, during first quarter FY 2023, intercepted 5,321 Cubans and 1,766 Haitians attempting to evade customs and screening measures. Increased security measures along coastal borders subsequently deterred migrants from entering the United States via coastal routes—in favor of irregular immigration along the Mexican land border, again compounding the problem for the geographic areas between POEs. [25]

In response to increased irregular migration, state governors have historically employed the National Guard within their own states to curb the negative impact of irregular migration. The Texas governor added another often-controversial layer to border security with Operation Lone Star, a multi-agency effort to defend Texas against human and drug trafficking across the Mexican land border. The Texas Department of Public Safety (DPS), Texas National Guard in Title 32 status, and numerous local law enforcement agencies, seized approximately 355 million lethal doses of fentanyl (about 918 pounds) since the operation started in 2021. Over the past two years, DPS recorded detention of 340,000 undocumented immigrants, 23,000 criminal arrests, and 21,000 felony charges.[26]

On March 12, 2023, approximately 1,000 migrants amassed in the Mexican border town of Ciudad Juárez and arrived at the POE en masse.[27] According to the Washington Office on Latin America, a DC-based NGO advocating for Latin American human rights, most of these migrants were Venezuelans notified of a social media post reporting the United States would allow Venezuelans admission to the United States despite current policy denying them asylum and protections.[28] Mass migrations, like this one, overwhelm and distract CBP and USBP agents from nefarious activity occurring elsewhere, thus allowing criminal enterprise and possible terrorists to cross the border uninhibited.[29]

Mass migration movements, such as the one detailed above, completely overwhelm DHS assets, facilitate the movement of dangerous drugs into the United States, and have led to more than thirty requests for assistance from DOD to help curb the flow of irregular migration. DOD, however, can only assume as much responsibility as allowed by federal law. Federal restrictions require DOD to pair with and support civil agencies charged with protecting and securing our borders. In terms of irregular immigration and border security, one of the military’s strongest, most meaningful, and longest lasting relationships continues to exist with USBP via DHS. Since 2019, DHS has relied heavily on U.S. military support along the border, but the military can only provide so much within the confines of federal law.

U.S. Military Legal Responsibilities for U.S. Border Protection

Federal law and national policy place responsibility for border security and oversight of the influx of people and goods into the United States under the authority of DHS.[30] Legally speaking, the U.S. military, in a federal status, has no direct role in border security or enforcement; however, DOD, upon request, may assist civilian authorities in a supporting capacity when authorized by Congress.[31] The terminology supporting may sound indicative of minimal participation or limited influence, but federal law, and subsequent DOD publications, reveal a broad and expansive list of mission tasks DOD personnel may undertake to support civil authorities, specifically law enforcement organizations.[32] In recent years, DOD has found opportunities to help USBP manage irregular immigration and illegal activities perpetrated by TCOs exploiting the southern border’s gray area. DOD uses these supporting roles to fulfill their mission of defending the homeland and conducting civil support to other federal agencies during national crises or emergencies.[33]

To understand the military role in border security, one must note the differences between U.S. military forces, particularly active component elements governed by Title 10 of the United States Code, and National Guard soldiers operating under provisions of Title 32 of the United States Code. National Guard soldiers operating under Title 32 usually remain subordinate to the state’s governor and have fewer legal restrictions than Title 10 active-duty Soldiers. Most importantly, the Posse Comitatus Act (PCA) does not apply to or place any restrictions on National Guard soldiers under Title 32.[34] The PCA restricts the executive branch and limits executive ability to utilize the military in certain situations without congressional approval, largely intended to serve as a stumbling block to any one leader seeking to utilize the U.S. military to control people domestically. In short, while the PCA forbids the use of active-duty military to execute law enforcement functions, National Guard Soldiers under Title 32 may act in a law enforcement capacity with certain authorizations.[35]  Under 18 U.S.C. 1385, the PCA states:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.[36]

Historically, the PCA came about following increased turmoil in post-Civil War Kansas concerning military use for election supervision. Following the passage of the PCA, presidents continued to employ the military in defiance of the statute numerous times over the next one hundred years to address natural disasters, railroad strikes, and additional instances of election supervision. In the 20th century, presidents suspended the PCA on different occasions, including during World War II to allow for broader authority for military police and during the government standoff at Wounded Knee.[37] In the mid-1900s, internal conflict arose between the executive branch and the DOD concerning the president’s authority to order the Army to operate along the southwest border with Mexico. The attorney general eventually cited “the President’s broad Constitutional power[s] were sufficient to override the Posse Comitatus Act.”[38] Throughout the 20th century, numerous presidents, including Wilson, Hoover, Truman, Eisenhower, Kennedy, Nixon, George H.W. Bush, and George W. Bush, called troops to federal service under exceptions to the PCA.[39]

The president may also order the National Guard to active-duty service in a support capacity for federal, state, and local law enforcement under Title 10 Chapter 15 U.S.C.-Military Support for Civilian Law Enforcement Agencies, and more broadly under the Stafford Act (Title 42 U.S.C. 5121-5207) to provide relief during time of national disaster.[40]

42 U.S.C. 5122 defines a “disaster” as a situation in the determination of the President, [where] Federal assistance is needed to supplement State and local efforts and capabilities to save lives and protect property and public health and safety, or to lessen or avert the threat of a catastrophe in any part of the United States.[41]

This definition provides the president with significant latitude in determining what constitutes an emergency. In February 2019, President Donald Trump exercised some of these authorities by invoking section 201 of the National Emergencies Act (50 USC 1621), which allowed him to exercise Title 10 USC 2808 and 12302 to engage in emergency construction in support of the southwest border and to order the reserve components of the U.S. military to active duty in a support role to DHS, respectively.[42]

President Trump’s past use of the military and projected concerns of how he may use the military in the future should he be reelected have caused great concern over the PCA and the Insurrection Act of 1807, which allows the president to bypass the PCA and employ troops domestically. Furthermore, invoking the Insurrection Act requires no approval from Congress. The original design for the Insurrection Act in the 19th century stemmed from issues present following the Civil War and resulted in several invocations of the act to address issues of white supremacy and desegregation.[43] More concerning, the president may implement the Insurrection Act unilaterally. Recent actions by President Trump and the continued possibility of expansive executive power gleaned from the Insurrection Act have caused growing concern amongst national leaders, watchdog organizations, and scholars.[44]Some scholars have expressed concern over the gradual and expanding military encroachment into domestic matters, particularly those of a law enforcement nature.[45] This encroachment, according to Cohen and Stevens, threatens basic civil liberties, threatens state sovereignty, and challenges the spirit and intent of the Constitution, causing many to fear a growing imbalance within U.S. civil-military relations.[46]

Interestingly, the PCA does not directly reference National Guard elements, but when the National Guard operates under federal control, the PCA applies just as it does to forces operating under Title 10.[47] In January 2021, the U.S. Attorney General’s Office issued an opinion indicating the use of the U.S. military on the southwest border to fulfill inspection and observation roles did not violate the provisions of the PCA. They further noted the express congressional authorization to use the military in support of civilian law enforcement pursuant to Chapter 15 of the federal code. Other federal laws allow sufficient latitude for military involvement in current irregular immigration issues and in combatting transnational crime. Congress has several standing exceptions, according to Mason, contained within Chapter 18 of Title 10 of the U.S. Code, specifically entitled “Military Support for Civilian Law Enforcement Agencies.”[48]

Under Title 10 U.S.C. 284, the Secretary of Defense holds authority to have DOD personnel execute duties supporting operations to counter TCOs. This includes a litany of specified tasks DOD personnel may undertake comprising, but not limited to, equipment repair and maintenance; personnel transportation; counter-drug training; detecting and reporting movement of air, ground, and sea traffic within 25 miles of U.S. borders; and conducting aerial and ground reconnaissance operations. Similarly, Title 10 U.S.C. 374(b) authorizes the Secretary of Defense, when requested by the head of a federal law enforcement agency, to operate equipment, provide transportation during a foreign or domestic counterterrorism operation, or even rendition a suspected terrorist from a foreign country to the United States for trial.[49]

Additionally, Section 502 of Title 32 U.S. Code makes provisions for National Guard Soldiers to answer the call into active-duty service under Title 32 for training or “other duty.” This other duty, according to Elsea, may include homeland defense activities defined under section 502(f), specifically those “undertaken for military protection of the territory or domestic population of the United States, or of infrastructure or other assets of the United States determined by the Secretary of Defense as being critical to national security, from a threat or aggression against the United States.”[50] Other federal laws exist detailing instances when National Guard forces may be employed in an active-duty capacity to include using National Guard troops to implement a drug interdiction program under Title 32 U.S.C. 112.

Policymakers have also identified U.S. military support roles regarding domestic operations and taken steps to expand those operations when necessary. One of the earliest examples of this support role dates to 1989 when Congress directed the Department of Defense to conduct training operations, when possible, within known drug interdiction areas to provide additional presence there.[51] More recently, under the Homeland Defense Strategy of 2013, policymakers urged military training planners to arrange and conduct training to achieve a dual effect, that is, both military and law enforcement goals achieved by one training event. This methodology theoretically allowed DOD and DOJ to organize joint training opportunities to achieve both agencies’ goals.[52]

The DOD further codifies support roles for military personnel in support of civilian authorities in DOD publications such as Joint Publication 3-28 (Defense Support of Civilian Authorities) and National Guard Bureau (NGB) 500-2 (National Guard Domestic Law Enforcement Support and Mission Assurance Operations). These publications further clarify the specific restrictions placed upon DOD personnel as they operate within our borders in conjunction with civilian authorities. Additional DOD guidance, such as DOD Instruction 3025.21, Defense Support of Civilian Law Enforcement Agencies, and DOD Directive 3160.01, Homeland Defense Activities Conducted by the National Guard, describe additional safeguards required to ensure no violations of the PCA occur and provide details on various financing methods for National Guard operations.

The Military Role on the Southwest Border

Examining the overarching issues at the southern border and contemplating the appropriate application of DOD forces, specifically the National Guard, current research has identified several issues. First, any problem with border security constitutes, by law, a federal problem but not necessarily a military problem. DHS, as a law enforcement entity, has the direct tasking from Congress to enforce irregular immigration and combat transnational crime at the nation’s borders with DOD operating in a supporting capacity when approved by Congress.[53] The military, however, is expressly forbidden from conducting law enforcement actions under the PCA, except in certain limited circumstances. Based upon the numerous requests for assistance submitted to DOD by DHS, the military’s involvement in border security operations has increased significantly over the last 20 years, albeit in a supportive capacity. DOD sees border support in terms of temporarily assisting DHS until they acquire the capability to independently complete their assigned mission. DHS, on the other hand, has opined they only want to acquire the requested amount of DOD assets and personnel support and seem content to rely on DOD assets indefinitely from year to year.[54]

Despite military assistance in terms of surveillance and technology, those things, while important, cannot serve as a substitute for actual boots on the ground. DHS requires a physical law enforcement presence on the border to enforce policies and federal law targeting irregular immigration, the illicit drug trade, and the trafficking of weapons and persons.[55] No amount of military-provided equipment or training can substitute for capable, civilian law enforcement personnel on the ground. U.S. Border Patrol staffing numbers from FY 2020 had dropped to levels not seen since 2008, and the introduction of the military into the ongoing border situation has no clear withdrawal plan, lending credence to Boin and Hart’s assertion that “quick and big crisis responses tend to backfire.”[56]

A second conclusion identified in recent studies conducted by the Government Accountability Office (GAO) naming a lack of common goals between DOD and DHS as an ongoing concern exacerbate this problem. In 2013, GAO reported that DOD, specifically JTF-N, had not established clear roles and responsibilities for military support to law enforcement.[57] By 2015, however, JTF-N had taken sufficient action to develop and solidify those military roles for GAO to report significant positive adjustments, including refined guidance addressing roles and responsibilities necessary for interagency coordination. DOD and DHS have also initiated collaborative planning sessions but have yet to agree on long-term goals or a common outcome for DOD support. Studies have indicated DOD would like to develop and execute a plan that would phase out DOD support and allow DHS to increase their capacity to execute their duties without DOD support. DHS, on the other hand, has focused more on short-term fixes to the current irregular migration situation and the subsequent ongoing humanitarian crisis versus developing the means to execute their mission independently over the long run.[58]

DOD and DHS disagree on important points of planning team objectives as they have attempted to codify the mutually agreeable collective outcome of DOD/DHS collaboration. In the absence of shared goals, DOD and DHS cannot work together effectively towards a mutually beneficial solution, possibly leading to a situation where DOD and DHS simply address one new crisis after another. This should not preclude DHS and DOD from developing and implementing defined, concrete outcomes allowing for adequate DOD budget estimates while providing the ability to assess the impact of the border mission on overall military unit readiness as the military seeks to divest itself of the border mission.[59]

In terms of readiness, the subsequent 2021 GAO Southwest Border assessment indicated cause for concern over individual unit readiness as DOD support to DHS along the border continues year after year.[60] GAO recommended DOD take additional measures to assess the impact of DOD border support on overall military readiness.[61]DOD did not concur with this suggestion and held fast that the current method of assessing and determining the impact to unit readiness remained sufficient. DOD responded, stating their current two-stage process of conducting analysis at the joint staff level and a secondary analysis conducted at the combatant command level provided an adequate examination of impacts to readiness for each unit assigned to assist with the southwest border RFA.[62]

Despite expressed DOD confidence in the low impact these ongoing, internal missions have to unit and individual readiness, scholars have raised significant concerns that this ongoing mission and the increased use of National Guard soldiers from 2020 to the present pose a significant threat to the DOD in terms of balancing multiple mission sets over a period of extensive use, evaluating fiscal concerns at the state and federal level, addressing the long-term problem of citizen-soldiers’ time and their extended absences from civilian employment, and the possible impacts on military recruiting and retention.[63] Some of these have manifested themselves over the last two years, as the Army missed its fiscal year 2022 recruiting goal by 25 percent.[64] Scholars also identified the over-politicization of the military as a main driver for loss of interest in military recruiting along with a reduced willingness of currently serving members to suggest military service to their friends and family.[65]

An additional problem has revolved around the lack of partnership between individual states and federal agencies attempting to address the situation at the southern border, specifically National Guard units under state control conducting independent enforcement operations under the direction of a state governor without federal oversight or collaboration. Many complaints and civil rights concerns have developed from state-led National Guard operations, specifically Operation Lone Star in Texas and the Border Strike Force operated by the Arizona National Guard.[66] Individually led, state-funded missions designed to police the border lack the necessary federal level coordination to address the problem from a whole of government perspective. As lone states develop plans within the vacuum of their own borders, they fail to consider the overarching strategic picture and render themselves incapable of contributing to the broad collective solution by their unwillingness to collaborate with federal partners.[67]

This lack of coordination has caused some to question whether the National Guard is the appropriate tool to apply in these circumstances, and, if so, if the government is applying it correctly. Tussing advocated the National Guard would serve as the ideal institution to tackle irregular immigration and counterdrug activities on U.S. borders due to their traditional relationship with the civil authorities they would support.[68] He further argued, what unit stands better equipped and more knowledgeable of the situations along a state’s border than that state’s own National Guard? However, not everyone views DOD partnership and collaboration with civil authorities as a good thing.[69]

Some scholars believe the growing cooperation between the Department of Defense and other civilian sectors of the government will continue a history of subversive meddling into other countries’ affairs while facilitating the violation of human rights and fueling the growth of illicit activities.[70] Others have concluded the use of the military along the southwest border to be “flawed” and “unacceptable,” believing the military presence there directly violates the Posse Comitatus Act and contributes little to national goals, and that resources depleted far outweigh the benefit gained from their expenditure.[71] An ever-growing group continues to voice concern over the expansive nature of the military and that border over-militarization will eventually result in both constitutional and human rights violations.[72] Organizations like Human Rights Watch have strongly condemned National Guard operations such as Lonestar in Texas, citing rampant civil rights abuses, careless bussing of migrants to Philadelphia, New York City, and Washington, DC, and failed deterrence policies that have strengthened TCOs’ ability to facilitate the drug and human trafficking trade across the border.[73] These assessments draw the focus back to suggestions to address the present problems and concerns over military involvement in domestic operations, specifically along the U.S. southern border.

Suggested Courses of Action and Areas of Exploration

The following proposals suggest ways for DOD and DHS to independently or jointly address challenges and questions of legal authority highlighted throughout this paper. First, DOD and DHS must establish common, long-term goals that extend beyond the current fiscal year to fiscal year requests for assistance. Establishing long-term goals will allow DOD to make long-range plans, address issues of readiness and retention, and provide hard deadlines for DHS to assume control of its congressionally mandated mission. In the interim, both agencies should begin to phase out DOD from operational activities that may run afoul of the PCA into a strict planning role, under the guidance of JTF-N, to bring agencies from across the spectrum of operations together and address the newly established common goals. Collaborative planning between National Guard elements and active-duty headquarters such as Joint Task Force North presents an opportunity to “‘close the seams’ between states’ borders while simultaneously addressing the larger national border issue.”[74] Nevertheless, the military, National Guard included, cannot serve as a permanent solution in this current emergency. The crisis cannot extend infinitely, and continuous implementation of DOD forces into a primarily DHS mission may eventually lead to decreased DOD readiness as they plan for future conflicts that only DOD may address.[75]

In terms of a broader response to the immigration issue and the subsequent conflict existent between domestic and military operations, the U.S. Government should take steps to address two issues: the broader issues of immigration policies in general, to include policies to actually control the migrant flow across the border, and revisions of the Posse Comitatus Act to close the broad loopholes presented by the Insurrection Act. In terms of policies, a focus outside the country on the root causes of increased migration along the southern border, to include corruption, human rights violations, violence, and economic insecurity and inequality, could help stem the flow of migrants across the border. The Biden administration listed these issues as key to their strategy in dealing with the immigration crisis, but, as of yet, none of these policies have been implemented in an effective fashion.[76] This policy will require significant levels of work to obtain buy-in from foreign governments to reduce migrant flow prior to the point where they enter the country and overwhelm DHS capabilities to process and absorb them. Additionally, the Insurrection Act currently “creates a giant loophole in the Posse Comitatus Act rather than a limited exception to it.”[77] Congress should pursue broad and expansive revisions of the Insurrection Act and the Posse Comitatus Act to establish parameters on presidential authority, include oversight by the legislative and judicial branches, and remove anachronistic language from the act to tailor the legislation to a new world far removed from the United States of 1807.[78] These changes would take significant steps in reducing concerns over the growing imbalance in civil-military relations.

Lastly, in terms of the U.S. military and the National Guard considering legal restrictions, perceptions of over-militarization, and fear of violations of the Posse Comitatus Act, military personnel may find better utilization within their long-held area of expertise: planning. Often, in responding to a crisis hastily, leaders can unwittingly overpromise and subsequently underperform by failing to achieve those promises.[79] The application of the military, specifically the National Guard, along the border poses the same risk. U.S. Border Patrol staffing increased from 4,139 agents in FY 1992 up to a high of 21,444 in FY 2011. Since that time, numbers have steadily dropped with the U.S. Border Patrol reporting staffing levels below 20,000 during FY 2020.[80] The U.S. Border Patrol continues to argue its case for more funding and the ability to hire additional personnel to address the increasing influx of irregular migration along the border, yet the military remains the DHS contingency plan for dealing with increased migration numbers, further contributing to widespread concern among scholars and foreign governments that over militarization of the border only exacerbates and complicates the existing problem.[81]General Glen Van Herck, recently retired, served as U.S. Northern Command (NORTHCOM) Commander from 2020-2024 and oversaw military operations along the U.S. border.[82] During his tenure, he proposed several measures to assist in phasing the military out of border operations and allowing DHS to assume full responsibility along the nation’s border. Van Herck has pushed for increased funding to allow DHS to address ongoing personnel shortages while also increasing their focus on acquiring new technology that would steer DHS away from a “manpower-based, intensive problem, to one [where] they can utilize technology as well, to solve their challenges.”[83]

The employment of the U.S. military, specifically the National Guard, along the southern border poses a complex problem with no quick-fix solution. Through the oversight of JTF-N, an organization that has developed a long history of conducting collaborative planning with multiple federal agencies, DOD can bring to light the core planning competencies of the U.S. military’s ability to design and execute complex, multi-agency operations.[84] Increased focus on foreign policies targeting the root causes of foreign migration from Central and South America, sweeping revisions to the Posse Comitatus Act and Insurrection Act, increasing the DHS budget with a transition to focus on new technology, the establishment of common, long-term goals between DHS and DOD, and transitioning DOD assets into a strictly planning capacity instead of dispersing them across the border can prevent violations of the Posse Comitatus Act, reduce the perceived military encroachment into the civil law enforcement sphere, and eventually prepare DHS to assume full control and responsibility of their constitutionally mandated mission, freeing DOD to focus on their own mission. It is well accepted from both a bipartisan and an international perspective that U.S. immigration laws need reform; however, legislators cannot agree on how to execute the reforms effectively.[85] The National Guard and the U.S. military can only serve as a bandage applied to the complex problem of irregular migration. The problem ultimately requires broad policy reform at the national level.

About the Authors

Lieutenant Colonel Travis L. Eddleman, Arkansas Army National Guard, currently serves as a targeting operations officer for Joint Task Force North out of Fort Bliss, TX. He holds a B.A. and an M.A. from Arkansas State University and a Doctor of Science (D.Sc.) in Civil Security Leadership, Management, and Policy from New Jersey City University. LTC Eddleman formerly served as commander of the 875th Engineer Battalion deployed along the southern border and with the 2nd Battalion 505th Parachute Infantry Regiment(3BCT), 82nd Airborne Division. He currently works as a criminal investigator and task force coordinator with the U.S. Marshals Service.

First Lieutenant Christopher Maye, Missouri Army National Guard, currently serves as the logistics staff officer of the 1-138th Infantry Regiment, based in St. Louis, Missouri. He previously served as the executive officer of the 1241st Transportation Security Company deployed along the southern border. He earned his Bachelor of General Studies from Missouri Southern State University and commissioned from the state’s Traditional Officer Candidate School program. He currently works full-time for the Missouri Army National Guard.

Meagan van Harte is a Doctoral Candidate in the Securities Studies program at New Jersey City University. She was the Director of the Behavioral Health Office of Emergency Preparedness and Response at the New York City Health Department but transitioned to an emergency management role at the New York State Division of Financial Services. She holds an MPA degree from John Jay College of Criminal Justice, a MA from Columbia University, and a BA degree from Smith College. Her research focus is on government mistrust, vaccine hesitancy, and disinformation.

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Chishti, Muzaffar, Sarah Pierce, and Austin Rose. “National Guard Heads to Southern Border amid Differing Reality from Earlier Deployments.” Migration Policy Institute. April 24, 2018. https://www.migrationpolicy.org/article/national-guard-heads-southern-border-amid-differing-reality-earlier-deployments.

Cohen, Marissa, and Jacqueline Stevens. “Nation Joins in Tears: Implications of the Domestic Deployment of Federal Troops in Portland, Oregon.” North Carolina Civil Rights Law Review 1, no. 1 (April 2022): 119–63. https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=1004&context=nccvlrts.

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Furman, H.W. “Restriction upon Use of the Army Imposed by the Posse Comitatus Act.” Military Law Review 7 (November 30, 1959): 85–130.

Ghiotto, Anthony. “Defending against the Military: The Posse Comitatus Act’s Exclusionary Rule.” SSRN Electronic Journal 11 (2019). https://doi.org/10.2139/ssrn.3449522.

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Gonzalez, Jose Luis. “Hundreds of Migrants Try to Force Their Way into US at Mexico Border.” Reuters. March 13, 2023. https://www.reuters.com/world/us/hundreds-migrants-try-force-their-way-into-us-mexico-border-2023-03-13/.

Govern, Kevin. “National Guard and Active Duty Lend a Hand to Civil Authorities on the Border.” JURISTnews. October 19, 2018. https://www.jurist.org/commentary/2018/10/govern-support-to-civil-authorities-us-.

Groll, Nicole. “Operation Vigilant Sentry: Stopping Illegal Migration at Sea.” United States Coast Guard News. January 27, 2023. https://www.news.uscg.mil/Press-Releases/Article/3280774/operation-vigilant-sentry-stopping-illegal-migration-at-sea/.

Haddal, Chad C. Border Security: The Role of the U.S. Border Patrol. CRS Report No. RL32562. Washington, DC: Congressional Research Service, August 11, 2010. https://digital.library.unt.edu/ark:/67531/metadc490952/m1/1/high_res_d/RL32562_2010Aug11.pdf.

Harman-Heath, Scott. “The Quasi-Army: Law Enforcement, Value Judgments, & the Posse Comitatus Act.” California Law Review Online 11 (September 1, 2020). https://www.californialawreview.org/online/the-quasi-army-law-enforcement-value-judgments-amp-the-posse-comitatus-act.

Hiemstra, Nancy. “Pushing the US-Mexico Border South: United States’ Immigration Policing throughout the Americas.” International Journal of Migration and Border Studies 5, no. 1/2 (2019): 44. https://doi.org/10.1504/ijmbs.2019.10021298.

Human Rights Watch. “US: Reject Texas Border Militarization.” November 17, 2022. https://www.hrw.org/news/2022/11/17/us-reject-texas-border-militarization.

Isacson, Adam. “Weekly U.S.-Mexico Border Update: Reduced February Migration, 2024 Budget, Ciudad Juárez Incident.” WOLA. March 17, 2023. https://www.wola.org/2023/03/weekly-u-s-mexico-border-update-reduced-february-migration-2024-budget-ciudad-juarez-incident/.

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Kapp, Lawrence. Defense Primer: Defense Support of Civil Authorities. CRS Report No. IF11324. Washington, DC: Congressional Research Service, January 27, 2022. https://crsreports.congress.gov/product/pdf/IF/IF11324.

Katz, Eric. “‘I Do Not Have Enough Agents,’ a Border Chief Tells Congress.” Government Executive. February 7, 2023. https://www.govexec.com/workforce/2023/02/border-chief-congress-i-do-not-have-enough-agents/382674/.

Kirschbaum, Joseph. Civil Support: DOD Is Taking Action to Strengthen Support of Civil Authorities. GAO-15-686T. Washington, DC: Government Accountability Office, June 10, 2015. https://www.gao.gov/products/GAO-15-686T.

Lepore, Brian. Homeland Defense: DOD Needs to Address Gaps in Homeland Defense and Civil Support Guidance. GAO-13-128. Washington, DC: Government Accountability Office, October 2012. https://www.gao.gov/products/gao-13-128.

Mason, R. Chuck. Securing America’s Borders: The Role of the Military. CRS Report No. R41286. Washington, DC: Congressional Research Service, February 25, 2013. https://apps.dtic.mil/sti/pdfs/ADA590413.pdf.

Massey, Douglas S., Jorge Durand, and Karen A. Pren. “Why Border Enforcement Backfired.” American Journal of Sociology 121, no. 5 (March 2016): 1557–1600. https://doi.org/10.1086/684200.

Mathema, Silva, and Zefitret Abera Molla. “Taking Migration Seriously: Real Solutions to Complex Challenges at the Border.” Center for American Progress. October 26, 2022. https://www.americanprogress.org/article/taking-migration-seriously-real-solutions-to-complex-challenges-at-the-border/.

Myers, Meghann. “This Is What It’ll Take to End the Military’s Border Mission.” Military Times. April 27, 2022. https://www.militarytimes.com/news/pentagon-congress/2022/04/25/this-is-what-itll-take-to-end-the-militarys-border-mission/.

Nunn, Joseph. “Trump Wants to Use the Military against His Domestic Enemies. Congress Must Act.” Brennan Center for Justice. April 21, 2022. https://www.brennancenter.org/our-work/analysis-opinion/trump-wants-use-military-against-his-domestic-enemies-congress-must-act.

Panetta, Leon. “Strategy for Homeland Defense and Defense Support of Civil Authorities.” Department of Defense. February 2013. https://policy.defense.gov/portals/11/Documents/hdasa/references/homelanddefensestrategy.pdf.

The Pew Charitable Trusts. “Immigration Enforcement along U.S. Borders and at Ports of Entry.” February 6, 2015. https://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2015/02/immigration-enforcement-along-us-borders-and-at-ports-of-entry#:%7E:text=Bo%E2%80%A6.

Pope, Amy. “Immigration and U.S. National Security: The State of Play since 9/11.” Migration Policy. April 7, 2020. https://www.migrationpolicy.org/research/immigration-us-national-security-since-911.

Samek, Joshua. “The Federal Response to Hurricane Katrina: A Case for Repeal of the Posse Comitatus Act or a Case for Learning the Law?” University of Miami Law Review 61, no. 2 (January 1, 2007): 441. https://repository.law.miami.edu/umlr/vol61/iss2/6/.

Sliney, Samantha Arrington. “Use of the National Guard on the U.S.-Mexico Border to Quell Border Security Concerns: Increase Coordination between Border States and Federal Government by Expanding 32 U.S.C. Section 112 to Encompass Immigration Issues.” Indiana Law Review 49, no. 3 (April 25, 2016): 693. https://doi.org/10.18060/4806.0103.

Stanley, Andrew. “Military Counterdrug Patrols along the Southwest Border: A Bridge Too Far.” U.S. Army War College. 1998. https://apps.dtic.mil/sti/pdfs/ADA345459.pdf.

State of Texas. “Operation Lone Star Continues Unprecedented Border Mission into 2023.” January 6, 2023. https://gov.texas.gov/news/post/operation-lone-star-continues-unprecedented-border-mission-into-2023.

Tussing, Bert. “New Requirements for a New Challenge: The Military’s Role in Border Security.” Homeland Security Affairs, October 2008. https://www.hsaj.org/articles/117.

U.S. Customs and Border Protection. “Southwest Land Border Encounters.” April 12, 2024. https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters.

———. “United States Border Patrol: Border Patrol Agent Nationwide Staffing by Fiscal Year.” 2020. https://www.cbp.gov/sites/default/files/assets/documents/2021-Aug/U.S.%20Border%20Patrol%20Fiscal%20Year%20Staffing%20Statistics%20%28FY%201992%20-%20FY%202020%29%20%28508%29.pdf.

U.S. Immigration and Customs Enforcement. “ERO FY 2020 Achievements.” October 29, 2021. https://www.ice.gov/features/ERO-2020.

U.S. Northern Command. “Border Security.” 2023. https://www.northcom.mil/BorderSecurity/.

———. “Joint Task Force North: Protecting the Homeland.” March 23, 2022. https://www.jtfn.northcom.mil/Portals/16/JTFN%20Trifold%202022-03-23.pdf.

United States Air Force. “General Glen D. Vanherck.” 2024. https://www.af.mil/About-Us/Biographies/Display/Article/467046/glen-d-vanherck/.

United States Army. “Army National Guard Operation Phalanx.” May 19, 2011. https://www.army.mil/article/56819/army_national_guard_operation_phalanx.

Vann, Bob. “Operation Jump Start.” U.S. National Guard. Accessed February 15, 2023. https://www.nationalguard.mil/Resources/Image-Gallery/Historical-Paintings/Heritage-Series/Jump-Start/.

Zemek, Alex. “Cartels and the Atrocity of Porous Borders.” America First Policy Institute. May 11, 2022. https://assets.americafirstpolicy.com/assets/uploads/files/Cartels_and_the_Atrocity_of_Porous_Borders_V2.pdf.

---

Notes

[1] “Southwest Land Border Encounters,” U.S. Customs and Border Protection, April 12, 2024, https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters.

[2] R. Chuck Mason, Securing America’s Borders: The Role of the Military, CRS Report No. R41286 (Washington, DC: Congressional Research Service, February 25, 2013), # https://apps.dtic.mil/sti/pdfs/ADA590413.pdf.

[3] Elizabeth Field, Southwest Border Security: Actions Are Needed to Address the Cost and Readiness Implications of Continued DOD Support to U.S. Customs and Border Protection, GAO-21-356 (Washington, DC: Government Accountability Office, February 2021), 1-90, https://www.gao.gov/products/gao-21-356.

[4] Bert Tussing, “New Requirements for a New Challenge: The Military’s Role in Border Security” (Homeland Security Affairs, October 2008), 1-22.

[5] Samantha Arrington Sliney, “Use of the National Guard on the U.S.-Mexico Border to Quell Border Security Concerns: Increase Coordination between Border States and Federal Government by Expanding 32 U.S.C. Section 112 to Encompass Immigration Issues,” Indiana Law Review 49, no. 3 (April 25, 2016): 693-711, https://doi.org/10.18060/4806.0103.

[6] Timothy Dunn, “The Militarization of the US-Mexico Border in the Twenty-First Century and Implications for Human Rights,” in Handbook on Human Security, Borders and Migration (United Kingdom: Edward Elgar Publishing, 2021), 35–53.

[7] Tussing, “New Requirements for a New Challenge.”

[8] Dunn, “The Militarization of the US-Mexico Border.”

[9] “Joint Task Force North: Protecting the Homeland,” U.S. Northern Command, March 23, 2022, https://www.jtfn.northcom.mil/Portals/16/JTFN%20Trifold%202022-03-23.pdf.

[10] Chad C. Haddal, Border Security: The Role of the U.S. Border Patrol, CRS Report No. RL32562. Washington, DC: Congressional Research Service, August 11, 2010), https://digital.library.unt.edu/ark:/67531/metadc490952/m1/1/high_res_d/RL32562_2010Aug11.pdf.

[11] Ibid.

[12] “Efforts by DHS to Estimate Southwest Border Security between Ports of Entry,” Department of Homeland Security, September 2017, https://www.dhs.gov/sites/default/files/publications/17_0914_estimates-of-border-security.pdf

[13] Haddal, Border Security.

[14] Alex Zemek, “Cartels and the Atrocity of Porous Borders,” America First Policy Institute, May 11, 2022, https://assets.americafirstpolicy.com/assets/uploads/files/Cartels_and_the_Atrocity_of_Porous_Borders_V2.pdf.

[15] “U.S. Overdose Deaths Decrease in 2023, First Time since 2018,” Centers for Disease Control, May 14, 2024, https://www.cdc.gov/nchs/pressroom/nchs_press_releases/2024/20240515.htm.

[16] Amy Pope, “Immigration and U.S. National Security: The State of Play since 9/11,” Migration Policy, April 7, 2020, https://www.migrationpolicy.org/research/immigration-us-national-security-since-911.

[17] “About Us,” Joint Task Force North, 2023, https://www.jtfn.northcom.mil/About-Us/.

[18] Examining The Department of Defense’s Deployment To The U.S.-Mexico Border: Hearing Before the Subcommittee on Border Security, Facilitation, and Operations of the Committee on Homeland Security House Of Representatives, 116th Cong. 1 (2019), https://www.congress.gov/116/chrg/CHRG-116hhrg38431/CHRG-116hhrg38431.pdf; Bob Vann, “Operation Jump Start,” U.S. National Guard, accessed February 15, 2023, https://www.nationalguard.mil/Resources/Image-Gallery/Historical-Paintings/Heritage-Series/Jump-Start/.

[19] The Roles and Missions of the National Guard in Support of the Bureau of Customs and Border Protection: Hearing before the Committee on Armed Services United States Senate, 109th Cong. 2 (2006), https://www.govinfo.gov/content/pkg/CHRG-109shrg35878/html/CHRG-109shrg35878.htm.

[20] Brian Lepore, Homeland Defense: DOD Needs to Address Gaps in Homeland Defense and Civil Support Guidance, GAO-13-128 (Washington, DC: Government Accountability Office, October 2012).

[21] “Army National Guard Operation Phalanx,” United States Army, May 19, 2011, https://www.army.mil/article/56819/army_national_guard_operation_phalanx.

[22] “Border Security,” U.S. Northern Command, 2023, https://www.northcom.mil/BorderSecurity/.

[23] “United States Border Patrol: Border Patrol Agent Nationwide Staffing by Fiscal Year,” U.S. Customs and Border Protection, 2020, https://www.cbp.gov/sites/default/files/assets/documents/2021-Aug/U.S.%20Border%20Patrol%20Fiscal%20Year%20Staffing%20Statistics%20%28FY%201992%20-%20FY%202020%29%20%28508%29.pdf.

[24] “ERO FY 2020 Achievements,” U.S. Immigration and Customs Enforcement, October 29, 2021, https://www.ice.gov/features/ERO-2020.

[25] Muzaffar Chishti and Jessica Bolter, “Rise in Maritime Migration to the United States Is a Reminder of Chapters Past,” Migration Policy Institute, May 25, 2022, https://www.migrationpolicy.org/article/maritime-migration-united-states-rise.; Nicole Groll, “Operation Vigilant Sentry: Stopping Illegal Migration at Sea,” United States Coast Guard News, January 27, 2023, https://www.news.uscg.mil/Press-Releases/Article/3280774/operation-vigilant-sentry-stopping-illegal-migration-at-sea/.

[26] “Operation Lone Star Continues Unprecedented Border Mission into 2023,” State of Texas, January 6, 2023, https://gov.texas.gov/news/post/operation-lone-star-continues-unprecedented-border-mission-into-2023.

[27] Rosa Flores and Joe Sutton, “Large Group in Mexico Attempted Mass Entry into US at El Paso, Texas, Border Crossing, Officials Say,” CNN, March 12, 2023, https://www.cnn.com/2023/03/12/us/el-paso-texas-migrant-surge/index.html.; Jose Luis Gonzalez, “Hundreds of Migrants Try to Force Their Way into US at Mexico Border,” Reuters, March 13, 2023, https://www.reuters.com/world/us/hundreds-migrants-try-force-their-way-into-us-mexico-border-2023-03-13/.

[28] Adam Isacson, “Weekly U.S.-Mexico Border Update: Reduced February Migration, 2024 Budget, Ciudad Juárez Incident,” WOLA, March 17, 2023, https://www.wola.org/2023/03/weekly-u-s-mexico-border-update-reduced-february-migration-2024-budget-ciudad-juarez-incident/.

[29] Haddal, Border Security.

[30] “Immigration Enforcement along U.S. Borders and at Ports of Entry,” The Pew Charitable Trusts, February 6, 2015, https://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2015/02/immigration-enforcement-along-us-borders-and-at-ports-of-entry#:%7E:text=Bo%E2%80%A6.

[31] Mason, Securing America’s Borders.

[32] “Defense Support of Civilian Law Enforcement Agencies,” Department of Defense, 2019, https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodi/302521p.pdf.

[33] Lepore, Homeland Defense.

[34] Mason, Securing America’s Borders.

[35] Joshua Samek, “The Federal Response to Hurricane Katrina: A Case for Repeal of the Posse Comitatus Act or a Case for Learning the Law?,” University of Miami Law Review 61, no. 2 (January 1, 2007): 441, https://repository.law.miami.edu/umlr/vol61/iss2/6/.

[36] Use of Army and Air Force as Posse Comitatus, 18 U.S.C. § 1385 (2021).

[37] H.W. Furman, “Restriction upon Use of the Army Imposed by the Posse Comitatus Act,” Military Law Review 7 (November 30, 1959): 85–130.; Scott Harman-Heath, “The Quasi-Army: Law Enforcement, Value Judgments, & the Posse Comitatus Act,” California Law Review Online 11 (September 1, 2020), https://www.californialawreview.org/online/the-quasi-army-law-enforcement-value-judgments-amp-the-posse-comitatus-act.

[38] Furman, “Restriction upon Use of the Army Imposed by the Posse Comitatus Act,” p. 126.

[39] Kevin Govern, “National Guard and Active Duty Lend a Hand to Civil Authorities on the Border,” JURISTnews, October 19, 2018, https://www.jurist.org/commentary/2018/10/govern-support-to-civil-authorities-us-.

[40] Lawrence Kapp, Defense Primer: Defense Support of Civil Authorities, CRS Report No. IF11324 (Washington, DC: Congressional Research Service, January 27, 2022), https://crsreports.congress.gov/product/pdf/IF/IF11324.

[41] Definitions, U.S. Code 42 § 5122.

[42] “Declaring a National Emergency Concerning the Southern Border of the United States,” Fed. Reg. 9844 (2019), https://www.federalregister.gov/documents/2019/02/20/2019-03011/declaring-a-national-emergency-concerning-the-southern-border-of-the-united-states.

[43] Joseph Nunn, “Trump Wants to Use the Military against His Domestic Enemies. Congress Must Act,” Brennan Center for Justice, April 21, 2022, https://www.brennancenter.org/our-work/analysis-opinion/trump-wants-use-military-against-his-domestic-enemies-congress-must-act.

[44] Marissa Cohen and Jacqueline Stevens, “Nation Joins in Tears: Implications of the Domestic Deployment of Federal Troops in Portland, Oregon,” North Carolina Civil Rights Law Review 1, no. 1 (April 2022): 119–63, https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=1004&context=nccvlrts.

[45] Anthony Ghiotto, “Defending against the Military: The Posse Comitatus Act’s Exclusionary Rule,” SSRN Electronic Journal 11 (2019), https://doi.org/10.2139/ssrn.3449522.

[46] Cohen and Stevens, “Nations Joins in Tears.”

[47] Steven Engel, “Military Support for Customs and Border Protection along the Southern Border under the Posse Comitatus Act,” Office of Legal Counsel, United States Department of Justice, January 19, 2021, https://www.justice.gov/olc/opinion/military-support-customs-and-border-protection-along-southern-border-under-posse.

[48] Mason, Securing America’s Borders.

[49] Support for counterdrug activities and activities to counter transnational organized crime, U.S. Code 10 § 284; Maintenance and operation of equipment, U.S. Code 10 § 374.

[50] Jennifer Elsea, CRS Insight: Prepared for Members and Committees of Congress the President’s Authority to Use the National Guard or the Armed Forces to Secure the Border, CRS Report No. LSB10121 (Washington, DC: Congressional Research Service, April 18, 2018), https://crsreports.congress.gov/product/pdf/LSB/LSB10121.; Required drills and field exercises, U.S. Code 32 § 502.

[51] Mason, Securing America’s Borders.

[52] Leon Panetta, “Strategy for Homeland Defense and Defense Support of Civil Authorities,” Department of Defense, February 2013, https://policy.defense.gov/portals/11/Documents/hdasa/references/homelanddefensestrategy.pdf.

[53] Mason, Securing America’s Borders.

[54] Field, Southwest Border Security.

[55] Tussing, “New Requirements for a New Challenge.”

[56] Arjen Boin and Paul’t Hart, “The Dangerous Game of Crisis Exploitation,” Schlossplatz 3, no. 7 (January 2009): 24.

[57] Brian Lepore, Homeland Defense: DOD Needs to Address Gaps in Homeland Defense and Civil Support Guidance, GAO-13-128 (Washington, DC: Government Accountability Office, October 2012).

[58] Field, Southwest Border Security.; Joseph Kirschbaum, Civil Support: DOD Is Taking Action to Strengthen Support of Civil Authorities, GAO-15-686T (Washington, DC: Government Accountability Office, June 10, 2015), https://www.gao.gov/products/GAO-15-686T.

[59] Field, Southwest Border Security.

[60] Ibid.

[61] Ibid.

[62] Ibid.

[63] Michael Anderson, “Implications from the Guard’s Extensive Use: A Cautionary Tale of 2020,” Journal of Advanced Military Studies 13, no. 1 (June 17, 2022): 129–43, https://muse.jhu.edu/article/857234.

[64] David Barno and Nora Bensahel, “Addressing the U.S. Military Recruiting Crisis,” War on the Rocks (Texas National Security Review, March 10, 2023), https://warontherocks.com/2023/03/addressing-the-u-s-military-recruiting-crisis/.

[65] Ibid.

[66] “State-Led Immigration Enforcement Operations at the U.S.-Mexico Border,” American Oversight, November 1, 2022, https://www.americanoversight.org/investigation/state-led-immigration-enforcement-operations-at-the-u-s-mexico-border.

[67] Ibid,

[68] Tussing, “New Requirements for a New Challenge.”

[69] Ibid.

[70] Nancy Hiemstra, “Pushing the US-Mexico Border South: United States’ Immigration Policing throughout the Americas,” International Journal of Migration and Border Studies 5, no. 1/2 (2019): 44, https://doi.org/10.1504/ijmbs.2019.10021298.

[71] Andrew Stanley, “Military Counterdrug Patrols along the Southwest Border: A Bridge Too Far,” U.S. Army War College, 1998, https://apps.dtic.mil/sti/pdfs/ADA345459.pdf.

[72] Dunn, “The Militarization of the US-Mexico Border.”

[73] “US: Reject Texas Border Militarization,” Human Rights Watch, November 17, 2022, https://www.hrw.org/news/2022/11/17/us-reject-texas-border-militarization.

[74] Tussing, “New Requirements for a New Challenge,” 14.

[75] Field, Southwest Border Security.

[76] Exec. Order No. 14010 (2021), https://www.whitehouse.gov/briefing-room/presidential-actions/2021/02/02/executive-order-creating-a-comprehensive-regional-framework-to-address-the-causes-of-migration-to-manage-migration-throughout-north-and-central-america-and-to-provide-safe-and-orderly-processing/.

[77] Nunn, “Trump Wants to Use the Military Against His Domestic Enemies,” para. 4.

[78] Elizabeth Goitein and Joseph Nunn, “An Army Turned Inward: Reforming the Insurrection Act to Guard against Abuse,” Journal of National Security Law & Policy, May 6, 2023, https://jnslp.com/2023/05/06/an-army-turned-inward-reforming-the-insurrection-act-to-guard-against-abuse/.

[79] Arjen Boin and Paul’t Hart, “The Dangerous Game of Crisis Exploitation.”

[80] “United States Border Patrol: Border Patrol Agent Nationwide Staffing by Fiscal Year,” U.S. Customs and Border Protection, 2020, https://www.cbp.gov/sites/default/files/assets/documents/2021-Aug/U.S.%20Border%20Patrol%20Fiscal%20Year%20Staffing%20Statistics%20%28FY%201992%20-%20FY%202020%29%20%28508%29.pdf.

[81] Eric Katz, “‘I Do Not Have Enough Agents,’ a Border Chief Tells Congress,” Government Executive, February 7, 2023, https://www.govexec.com/workforce/2023/02/border-chief-congress-i-do-not-have-enough-agents/382674/.; Douglas S. Massey, Jorge Durand, and Karen A. Pren, “Why Border Enforcement Backfired,” American Journal of Sociology 121, no. 5 (March 2016): 1557–1600, https://doi.org/10.1086/684200.

[82] “General Glen D. Vanherck,” United States Air Force, 2024, https://www.af.mil/About-Us/Biographies/Display/Article/467046/glen-d-vanherck/.

[83] Meghann Myers, “This Is What It’ll Take to End the Military’s Border Mission,” Military Times, April 27, 2022, https://www.militarytimes.com/news/pentagon-congress/2022/04/25/this-is-what-itll-take-to-end-the-militarys-border-mission/.

[84] Tussing, “New Requirements for a New Challenge.”

[85] Aline Barros, “On Immigration Reform, US Has Accomplished next to Nothing in Decades,” Voice of America, June 3, 2024, https://www.voanews.com/a/on-immigration-reform-us-has-accomplished-next-to-nothing-in-decades/7641193.html.

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