While President Trump has been laying the foundation for turning border control into a national security issue versus an illegal immigration issue, from specific mentions of the much talked about "Wall" being a matter of national defense, to his tweets and commentary about using the military, on April 4, 2018, the Department of Defense (DoD) along with the Department of Homeland Security (DHS) put out a news release saying "President Donald J. Trump has directed the Defense and Homeland Security departments to work with state governors to deploy National Guard troops to the southern U.S. border."
That was immediately followed up by the Department of Justice (DOJ) issuing a "Statement by Attorney General Sessions on National Guard Deployment," which stated the following:
“Earlier this week, media outlets reported that a so-called ‘migrant caravan’ was making its way through Mexico with the intent of illegally crossing the southern border of the United States. The President was clear that this caravan needed to be stopped before it arrived at our southern border, and his efforts now appear to be successful. But let me be clear as well: we will not accept the lawlessness of these types of efforts and those who choose to violate our laws, and those who conspire to assist others to violate our laws, will face criminal prosecution.
“When I visited Nogales, Arizona, in April 2017, I announced my direction to federal prosecutors to prioritize the prosecution of all illegal entry, illegal reentry, and alien smuggling offenses. We have surged hundreds of immigration judges to our border over the last year. We hired new judges at the fastest pace ever. We added performance metrics to ensure that these cases aren’t languishing in the courts while illegal aliens spend years living in our country without consequences. We will have a more efficient and effective immigration court system that supplies due process. As such, aliens who enter our country illegally should be aware that the government will use any and all lawful tools, including expedited removal and prompt immigration proceedings, to ensure that our immigration courts will not be burdened with cases that lack merit under the law.
“But this will not be enough if Congress does not act to pass clear, fair, and effective legislation that ends the illegality and creates a system that serves the national interest is crucial at this time. It is essential for Congress to act.
“The Department of Justice fully supports the efforts of the Departments of Defense and Homeland Security announced today to secure our border. I will soon be announcing additional Department of Justice initiatives to restore legality to the southern border.”
Also on April 4, 2018, President Trump issued a Presidential Memorandum for the Secretary of Defense, the Attorney General, and the Secretary of Homeland Security, the subject of which was "Securing the Southern Border of the United States," which consisted of six bullet points offering the justification and citing previous precedent for using the National Guard to help protect the border from both the Bush and Obama administrations. One of those bullet points states directly that "The situation at the border has now reached a point of crisis."
Speaking to reporters at the White House, Homeland Security Secretary Kirstjen M. Nielsen started her statement to the press by saying "Border security is homeland security which is national security."
Below is Nielsen's entire opening statement and the full question and answer session which followed.
WHAT WILL THE NATIONAL GUARD BE DOING?
Working in conjunction and cooperation with Governors of the border states will determine the exact nature of the duties the National Guard will be assigned. In some cases it is believed to be support duties, such as aerial support, technology, surveillance, and as Ms. Nielsen indicated during the presser shown above, in some cases they will ask for fleet mechanics. In other words the national guard will take over some duties that would allow actual border agents and trained law enforcement agents to do their jobs.
We have seen multiple reports claiming the National Guard would not be armed, but according to the Pentagon, it has not been determined, how many, if any, will be armed because they are in the early stages of planning and determining each mission set.
The Guard will not be mobilized as a federal force, but would remain under the control of the border states' governors, as the Posse Comitatus Act bars the federal government from conducting law enforcement on U.S. soil, although there are exceptions which would allow them "immediate response authority" to act to defend themselves if under immediate threat.
WHAT THE GOVERNORS ARE SAYING
The Republican governors of New Mexico, Texas and Arizona are all supportive of this measure, while the Democratic governor of California is undecided but has relegated the official response to the California National Guard spokesman Lt. Col. Tom Keegan, who issued a statement on behalf of brown, stating "This request – as with others we’ve received from the Department of Homeland Security, including those for additional staffing in 2006 and 2010 – will be promptly reviewed to determine how best we can assist our federal partners. We look forward to more detail, including funding, duration and end state."
AZ Governor Doug Ducey has publicly offered his support, saying "Arizona welcomes the deployment of National Guard to the border. Washington has ignored this issue for too long and help is needed. For Arizona, it’s all about public safety."
The spokesman for New Mexico's Governor Susana Martinez said she "appreciates the administration's efforts to bring states to the table as they go about taking steps to better secure our border."
Texas Governor Greg Abbott issued a press release, via the Texas.gov website:
"My top priority as Governor is ensuring the safety and security of Texans, and securing our southern border has always been essential to that mission," said Governor Abbott. "In my time as Governor, Texas has maintained a continuous presence of National Guard members along the border, and we’ve added hundreds of permanent Department of Public Safety troopers to the region. Today’s action by the Trump Administration reinforces Texas’ longstanding commitment to secure our southern border and uphold the Rule of Law, and I welcome the support. Going forward, Texas will continue to implement robust border security efforts, and this partnership will help ensure we are doing everything we can to stem the flow of illegal immigration.”
Today’s decision by the Trump Administration is consistent with previous actions taken to secure our southern border by President Barack Obama in 2010, and President George W. Bush in 2006.
Liberal critics, including Oregon’s Democratic Gov. Kate Brown, who made headlines by declaring that she would say "no" should she be asked to put the Guard on her border, although it is unclear if Oregon was even one of the states on the agenda for Guards at the border, is accusing the President of planning to "militarize" the border.
Kate Brown's statement is misleading. According to the Presidential proclamation the President used his Title 32 authority, which federally funds the use of the guard, but they are controlled by the state, rather than Title 10 authority, which would have federalized the guard. Using Title 32, the scope of what the Guard can do is widened, as is explained at by NBC:
Title 32 broadens the scope of what National Guard personnel can do at the border.
National Guard troops under control of the federal government, as they would be under Title 10, are prohibited by the Posse Comitatus Act (PCA) from enforcing domestic laws. The PCA bars military forces from getting involved with domestic issues like immigration. The troops can only take a support role, such as training or loaning and operating equipment, as well as being involved in certain counterdrug and counterterrorism efforts.
State National Guard personnel are not subject to the PCA. In 2004, Congress passed a law that previous administrations have used to allow the federal government to fund National Guard troops participating in border security operations triggered by "homeland defense activity" under Title 32, according to a 2013 Congressional Research Report.
BOTTOM LINE
On Tuesday President Trump said "Until we can have a wall and proper security we're going to be guarding our border with the military. That's a big step."
Over the last year the President has attempted to get Congress to get him the funding needed to keep one of his core campaign promises, which was to "build the wall," to protect our borders and our sovereignty, but Congress has failed to provide the funding to get the job done.
With this decision, it appears the President has run out of patience and until they provide him the necessary funding to build a physical wall, he appears to be ready to use a National Guard "wall of meat," by giving the states what they need to protect their borders.
If California's governor refuses to cooperate in protecting the nation's border, perhaps the President should consider building a wall around them.
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