The Military and the Border: No Laughing Matter



President Trump’s recent deployment of approximately 6,000 active-duty troops, and roughly 2,000 national guardsmen, to the southern border, in response to the migrant caravan headed toward the United States has provoked a storm of criticism. So-called “legal experts” have repeatedly opined that the Posse Comitatus Act of 1878, which prohibits the use of the military to enforce civilian laws, bars the use of the military for border enforcement activities.

Meanwhile, the online satirical publication The Babylon Bee published an article titled, “Trump Criticized For Using US Military For Bizarre Purpose Of Defending Nation’s Borders,” which poked fun at the apparent belief that American armed forces may be deployed anywhere on earth – except in the U.S. to defend its borders. It humorously observed, “No one is sure where Trump got this strange idea that the military is supposed to be used to secure the nation’s borders.”

So, what’s the truth? Is using the military to secure our borders a shocking proposition? Or is border security such an obviously appropriate use of the military that there shouldn’t even be any debate about it?

First off, it is unclear whether the Posse Comitatus Act extends to border management functions. That legislation specifically prohibits the use of the military to “execute the laws.” However, the provision doesn’t specify which laws are being referenced.

That may sound like an exercise in legal semantics but the Posse Comitatus Act, contrary to popular opinion, does not derive from any constitutional or common law doctrine. It was, in fact, a racist piece of legislation sponsored by southern lawmakers who wished to keep the Union Army from being used to enforce the rights accorded to freed slaves living in the former Confederacy. (From just one relevant law review article: “…commentators, and courts, have simply avoided or minimized the Act’s brutal racist origins.”)

In addition, it’s worth noting that the posse comitatus rules were drafted before the formation of the U.S. Border Patrol, when all land border enforcement activities were handled by the U.S. Army. Accordingly, there is no reason to believe that Congress even conceived of border enforcement as a civilian law enforcement function at the time the bill was formulated and passed.

It is much more likely that border protection was viewed as a simple, and appropriate, exercise of American sovereignty. Thus, there is no reasonable indication that Congress intended its ban on the use of the armed services in civilian law enforcement activities to have any effect whatsoever on the military’s border security responsibilities.

Prior to the existence of full-time, professional police forces, the military was frequently assigned civilian law enforcement duties. And, in fact, long after urban police forces became common – and well after the passage of the Posse Comitatus Act – the military was regularly used to secure the border. President Woodrow Wilson deployed troops to the southern frontier to defend against raids by the Mexican bandit/revolutionary Pancho Villa.

While The Babylon Bee isn’t a source for hard news, this may be one of those situations where the humorists have perceived a truth that the alleged “experts” simply refuse to see. Cops don’t repel invasions. A column of thousands of foreigners, advancing on the United States with a clearly expressed intention to enter our territory whether we like it or not, can only be described as an invasion. And that’s just the type of threat to U.S. sovereignty, and national security, that the military was intended to handle.

About Author

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Matthew J. O’Brien joined the Federation for American Immigration Reform (FAIR) in 2016. Matt is responsible for managing FAIR’s research activities. He also writes content for FAIR’s website and publications. Over the past twenty years he has held a wide variety of positions focusing on immigration issues, both in government and in the private sector. Immediately prior to joining FAIR Matt served as the Chief of the National Security Division (NSD) within the Fraud Detection and National Security Directorate (FDNS) at U.S. Citizenship and Immigration Services (USCIS), where he was responsible for formulating and implementing procedures to protect the legal immigration system from terrorists, foreign intelligence operatives, and other national security threats.He has also held positions as the Chief of the FDNS Policy and Program Development Unit, as the Chief of the FDNS EB-5 Division, as Assistant Chief Counsel with U.S. Immigration & Customs Enforcement, as a Senior Advisor to the Citizenship and Immigration Services Ombudsman, and as a District Adjudications Officer with the legacy Immigration & Naturalization Service. In addition, Matt has extensive experience as a private bar attorney. He holds a Bachelor of Arts in French from the Johns Hopkins University and a Juris Doctor from the University of Maine School of Law.

8 Comments

  1. avatar

    This is an illegal entry into our county, this is an invasion and there will be violence coming into our America. These people are not holding American flags, they are flags of there country. Of any time in our history, why wouldn’t we use the military to protect Americans? Our President should have the right to protect us and this country by any means possible without intrusion of the courts. I live in Arizona and I welcomed m the military to our borders. We must remember breaking the law to come into our country is wrong, no matter what the situation is. These people could have stayed in Mexico they are not. I want to make it clear I am for people coming to us legally and thru do process. This is not about the President, Democrats, or Republicans, this is our safety and welfare of our country.

  2. avatar

    This is an illegal entry into our county, this is an invasion and there will be violence coming into our America. These people are not holding American flags, they are flags of there country. Of any time in our history, why wouldn’t we use the military to protect Americans? Our President should have the right to protect us and this country by any means possible without intrusion of the courts. I live in Arizona and I welcomed m the military to our borders. We must remember breaking the law to come into our country is wrong, no matter what the situation is. These people could have stayed in Mexico they are not. I want to make it clear I am for people coming to us legally and thru do process. This is not about the President, Democrats, or Republicans, this is our safety and welfare of our country.

  3. avatar

    We can’t afford to take in anymore of the world’s poor because we are rapidly going broke while rapidly adding trillions more in debt, and we owe China alone $1 trillion and the interest payments on that debt are helping finance their massive military buildup and the billions lavished on illegal aliens needs to go to pay off that debt for starters.

    The U.S.-China Economic and Security Review Commission just released their new annual report which covers China’s military buildup which is accelerating at a faster pace than expected and we are their number one adversary and they want us out of their backyard.

    But you rarely hear about China’s massive military buildup, even though they are an openly hostile country with 1.4 billion people and a brutal totalitarian government and it also really does not seem to have sunk in overall as a nation with our delusions of grandeur that we are literally going broke.

    But nobody likes anyone who brings bad news, most people just want to hear happy talk and live a blissful existence and not think about reality.

    • avatar

      There’s a report out on Bloomberg that says it’s China that is bearing most of the brunt of Trump’s tariffs and not the other way around. China is addicted to exporting to us. Soybean prices were supposed to crash but they are barely below the levels of the past four years. In the end, it is after all a zero sum game. China can go to South America for soybeans but that means the countries who bought those crops will have to go elsewhere which means us. Trump is doing what we should always have been doing, which is use our massive economic power to get our way. Instead of following these neocon globalists military hawks who, to paraphrase Will Rogers, never met a war they didn’t like. Absolutely right about our finances. We are spending ourselves into the poorhouse.

  4. avatar

    Whites in this country need to accept the idea that the left thinks they are racist and need to be replaced with a culture more acceptable to the left. What better evidence than Hillary’s deplorables comment implying that supporting secure borders and fair trade deals was a sign of bigotry. Last week Bernie Sanders claimed that whites were “uncomfortable” voting for the black Democratic candidates for governor in Georgia and Florida.

    Never mind that both were quite left of center in states that tend to run conservative. The Democrats have not won a governor’s election in FL in 20 years and haven’t won one in recent history in Georgia. Those candidates were all white. It’s not about skin color but their positions. To expect that two southern states are going to elect people who would fit right in running in New York is dishonest and misleading. It’s all race card with the Democrats.

    In fact, it was Republicans in Michigan, that party of “old white guys” in a state Trump won, who voted to nominate John James, a conservative black West Point graduate, for the Senate this year, and he lost to the white Democratic incumbent last week. It was Louisiana Republicans who previously nominated and elected the very dark skinned Indian-American Bobby Jindal for governor. Not that many people know it but former UN ambassador Nikki Haley is also the child of two immigrants from India and was also elected as Republican governor of South Carolina.

    Hard to figure what a judge was thinking when he said the White House had to give Jim Acosta his press pass in spite of the fact that he has repeatedly hijacked briefings with his antics. To follow that to it’s logical conclusion, then any reporter at any time can just refuse to give up the mic and keep asking repeated questions? Of course, there is nothing to suggest Acosta has to called on. Let’s see a judge try and order that.

  5. avatar
    stephen m m saliga on

    STOP THE INVASION, BY ANY MEANS NO BODY HAS THE RIGHT TO ENTER YOUR HOME WITHOUT A INVIATION, THEY SHOULD BE MET WITH WHATEVER FORCE IS NECESSARY TO STOP THE INVADERS. WHAT DO WE SPEND TRILLIONS ON THE MILITERY FOR IF NOT THIS INVASION . WAKE UP AMERICA, ITS A INVASION THAT SHOULD BE STOPPED BY ANY MEANS NECESSARY, ONLY MY OPINION.

  6. avatar

    The army of young fighting men armed with guns & Molotov cocktails ( Mexico has warned us) is not seeking
    asylum but demanding our welfare benefits and are robbing, looting, & leaving a trail of garbage & filth through Mexico…Mexico has allowed this to happen and now are afraid of the horde..We should not be giving “aid” money
    to our enemies & the invaders they support!