The White House on Friday morning tried to shoot down a report that the Trump administration had drafted a plan to use National Guard troops to arrest undocumented immigrants. The report, which the Associated Press published shortly after 10 a.m., is based on an 11-page draft proposal that has been circulating within the Department of Homeland Security.
However, some elements of the story first posted by the AP do not appear to be backed up by the document. Specifically, the news agency suggested that the number of troops involved could reach 100,000, a figure that appears nowhere in the draft memo.
“This is not true. DHS also confirms it is 100% false,” White House Press Secretary Sean Spicer tweeted not long after the story broke.
Spicer also addressed the report on Air Force One, as the president traveled to his vacation home in Florida for the third weekend in a row. “There is no effort at all to utilize the National Guard to round up unauthorized immigrants,” he said
It was unclear just how much the White House was pushing back against the story. The claim that there is no current effort to use the National Guard to enforce immigration law is not the same thing as denying that such a plan was or is in the works. And Spicer’s categorical claim that the story was “100%” false seems to suggest Spicer is challenging even the provenance of the memo.
However, other reporters from different outlets who cover DHS said that the idea of using the National Guard in this capacity has been under discussion for weeks. It was not immediately clear who leaked the memo to the AP, or for what purpose.
Supporters of the Trump administration also took issue with the AP’s framing of the story. The headline on the original piece posted on the service’s website, “Trump weighs mobilizing Nat Guard for immigration roundups,” suggests that the proposal had made its way to the president’s desk. In fact, it is at least possible that the plan was never discussed beyond the staff level at DHS.
Spicer blasted the AP for releasing the story without comment from the administration, but the original version of the news service’s story noted that both the White House and the Department of Homeland Security had failed to even respond to requests for comment.
The memo does suggest that members of the National Guard could be effectively deputized under section 287(g) of the Immigration and Nationality Act, which allows the DHS director to authorize “qualified officers or employees” of a state to act in the capacity of federal immigration officers.
“Pursuant to Title 32 of the United States Code, State National Guard components are employees of their respective states and are under the command of their governors when they are not in federal service. Based on their training and experience, these men and women are particularly well-suited to assist in the enforcement of federal immigration law and augment border security operations by [DHS] components.”
It further directs immigration officials to immediately invite “governors of the states adjacent to the land border with Mexico and those states adjoining such border states” to add their National Guard units to the 287(g) program.
The memo also appears to order the immediate detention of any person found crossing the border illegally until they can be deported or any claim to asylum can be adjudicated, something that would require a dramatic expansion of DHS detention facilities.
The new detention facilities would be located close to the border, the memo notes, ordering top officials to “take all necessary action and allocate all available resources to expand their detention capabilities and capacities at or near the border with Mexico to the greatest extent practicable.
The AP reported that the memo appeared to come from John Kelly, the retired Marine Corps general who President Trump appointed to run DHS. However, it is not uncommon for draft memos to carry the name of the official who would ultimately have to approve them before that approval is actually given.
A national security expert who looked at the AP story said that the proposal seems to bear the hallmarks of an early-stage draft, perhaps from more junior staff.
“It appears to be another one of those cases where somebody had an idea, and drafted up a memo about it, maybe without a lot of knowledge about how government actually works,” said Heather Hurlburt, the former head of the National Security Network, now with the New America Foundation. “It’s not something that DHS can just do on its own. There are sort of obvious historical reasons why the guard forces belong more to the states than they do to the feds.”
Regardless of how far up the chain of command the idea of using a National Guard deployment went in the administration, the report had more than a ring of truth given Trump’s promises during the presidential campaign. He vowed to deport more than 11 million undocumented immigrants within two years and said that there would be a “deportation force” mobilized for that purpose. The Border Patrol estimates that between 2013 and 2015, 2.1 million people crossed into the United States illegally over the southern border.
Many commentators concerned about the draft proposals immediately warned that it would violate the Posse Comitatus Act, an 1878 law that bars federal troops from being used as law enforcement personnel inside the United States. However, that law does not apply to state National Guard units operating under the control of their states’ governors within the territory of their own state or nearby states at the invitation of their governors.
The proposal, according to the AP, specifically says that state governors would have the discretion to mobilize and that the troops would remain under state control.
In fact, National Guard troops have been used in a law enforcement capacity in the wake of some natural disasters. They have also been deployed repeatedly in recent years to assist law enforcement agencies operating on the border.
Hurlburt pointed out that there are legitimate worries about the wisdom of giving National Guard troops the authority to enforce immigration law.
“There’s a reason law enforcement personnel are highly trained and don’t just walk into the job and start arresting people,” she said. “Imagine deputizing ... people who are trained to do different things? It’s not coincidental that some of the worst abuses of the Iraq war were committed by National Guard troops that were put in positions that they were in no way trained or prepared for.”