We are not going to invade ourselves.
They moved down the street in a tight formation, looking at every door and window for threats. Reaching a door, they stacked up, gave the signal, kicked the door in, and moved into the building. Finding a family of three, they pushed them to the floor, zip-tied them, and dragged them into the street at gunpoint for transportation to a detention camp.
When President-elect Trump signaled his willingness to use the military to help deport illegal alien invaders from the United States, many Americans immediately envisioned a scenario, like the paragraph above, where U.S. ground forces walked down Main Street U.S.A. conducting what is, in essence, a counterinsurgency mission. This view of what could happen is unrealistic for many reasons, and as much as I want all those who came here illegally to be accounted for and deported, this is not a method I would accept, nor would most Americans. There is a more reasonable view of how the military would be used legally and humanely to deal with this national crisis. My goal is to skip the hyperbole and provide more realistic possibilities. However, if someone is a proven human trafficker, gang member, or drug smuggler, then God help them, for they deserve every measure of justice coming to them.
The same goes for all who enabled them.
You should not expect to see America’s military going door to door to find illegal aliens, arrest them, and throw them in mass detention camps to await deportation.
The Department of Defense (DoD) will support a “whole of government” approach to solving a significant national problem. This means the DoD will work with many government agencies to provide the resources necessary. The lead agencies will remain those with the constitutional authority to enforce the laws of the United States within our borders. The Departments of Justice, Homeland Security, and Treasury are a few examples. The Director of National Intelligence could also partner within the constraints of not spying on American citizens (this article does not address the weaknesses of FISA Section 702 and how spying is still allowed through certain loopholes, but not per the Constitution – that is another fight).
These are a few examples of partnerships at the Federal level, but much more can be done. Local jurisdictions, specifically Sheriffs, are critical to achieving the goals of mass deportation. States and counties, working with all agencies, can help resolve this national security issue. When municipalities or states stand in the way of the federal government’s constitutionally mandated requirement to guard the states against foreign invasion,[i] Immigration and Customs Enforcement (ICE) still has the authority to enforce immigration law, while different agencies can enforce other laws where necessary. Sanctuary states and municipalities aiding and abetting in the conduct of numerous crimes, and public servants who act counter to the law are also subject to it. For instance, if the Mayor of Denver directs any state or local agency to stand in the way of law enforcement doing their job, he is subject to arrest and incarceration. (After I wrote this article, the following headline came out on Fox News)
Here is a more realistic scenario. (Simplified to highlight the greater point of this article)
1. Federal, State, and local governments work together to identify illegal aliens.
2. Enough law enforcement personnel are available to arrest illegal aliens and move them to a location where they can be moved out of the country using U.S. Air Force assets.
3. If a significant movement is necessary, the merchant marine fleet could relocate people to foreign ports for relocation.
4. Throughout the process, the military could provide limited intelligence support functions and other logistics capabilities unavailable to smaller agencies.
5. The Bottom Line: the U.S. military is better than anybody on the planet at moving large numbers of people and quantities of material globally.
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Posse Comitatus restricts the ability of the military to enforce the law in the United States to avoid potential abuse. Something that had occurred during and after the Civil War. This has been the law of the land since 1878. Although there are a variety of loopholes and rules, it has always been considered good practice to avoid enforcing domestic laws using the military, even if technically allowed in certain circumstances. This has not precluded effective partnerships between the military and other agencies. I’ve served in task forces alongside the Drug Enforcement Administration (DEA), Customs and Border Patrol (CBP), and other agencies supporting counter-narcotics and counter-smuggling missions. In these cases, the military provides critical capabilities to assist agencies in their mission, and only law enforcement agencies can use arrest powers.
Here is one scenario.
1. U.S. military aircraft identify people moving on known narcotics movement routes, which could be on either side of the U.S. border with Mexico.
2. CBP and the DEA are notified at the combined headquarters, where multiple agencies collaborate.
3. Agents are dispatched to interdict the smugglers on the U.S. side of the border while the aircraft remains overhead to maintain continuous surveillance. (This could include drones)
4. During interdiction, the U.S. military aircraft remains overhead while the agents determine whether they are illegal immigrants, narcotics smugglers, or human smugglers. If not all three at once.
5. U.S. military aircraft can move agents and smugglers after arrest if necessary.
6. At no point in this scenario has the U.S. military exercised arrest authority. They have only provided resources other agencies don’t have at all or in sufficient quantity.
Presidents rarely make emergency declarations, but they are an option in a national emergency requiring a fast response to a developing situation. I intend to refrain from expanding this article to cover the scholarship debating emergency declarations or martial law. Instead, I’ll provide some links below for those who want to dig further into these topics.
The general conclusions are the same for both cases. Both are rarely used and grant more extraordinary powers to the President, but whether the President has the right to declare martial law is the most debatable. This may be because martial law is not addressed in the U.S. Constitution or adequately in the U.S. Code. This illegal alien invasion is a national crisis that needs rapid and aggressive action to be corrected, and an emergency declaration is the most feasible. It leaves the civil law enforcement and court system in place, requires congressional engagement and oversight, effectively uses federal agencies, and has an accepted legal history whereby powers and their functions are clearly defined and limited.
It is worth noting that any power used for good today by someone we support can be used for bad by someone we do not. Imagine an America where the President could declare martial law on a whim and replace the justice system with military tribunals. That is unchecked power I could never trust. Some states experienced something close to this during the COVID scam.
Therefore, if either of these two options were considered (martial law or emergency declaration), I view the emergency declaration as feasible and the best solution. However, a lot of the work that needs to be done to address the invasion crisis can be done without either.
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Cornell University – Emergency Powers
50 U.S. Code Chapter 34 - NATIONAL EMERGENCIES
A Guide to Emergency Powers and Their Use
Declarations of War and Use of Military Force
Martial Law – Definitions and Discussion
