President-elect Donald Trump has vowed to start the biggest deportation attempt in American history – his signature 2024 campaign promise – as soon as he takes office, signaling this week he will ask the US military for help in a massive operation to deport undocumented immigrants.
Earlier this week, he shared a social media post indicating that he would declare a national emergency and deploy military assets to carry out deportations.
However, how the military will go about fulfilling this promise of mass deportations is unclear. And there are untested legal questions about involving service members in immigration enforcement operations.
The Department of Defense has provided operational support to immigration and border authorities for decades, under both Republican and Democratic presidents. About 4,000 service members — primarily from the National Guard — are currently authorized to support Customs and Border Protection (CBP) security missions along the southwest border, according to U.S. Northern Command.
While long-standing federal law generally prohibits the use of the military for domestic law enforcement — which includes immigration detention and deportation — there are some rarely invoked statutory exceptions.
The Department of Defense’s vast funding and resources could be instrumental in helping the incoming administration overcome the operational and financial challenges of carrying out deportations on a monumental scale. Immigration and Customs Enforcement’s deportation branch has a fraction of the resources it needs, with 6,000 agents and 41,000 detention beds. About 11 million immigrants are estimated to be living in the US illegally.
What did Trump and his allies say about using the military to deport?
In an interview with CBS’ “60 Minutes” last month, Tom Homan, whom Trump has appointed as “border tsar,” said one way to increase the workforce for the mass deportation plan is to rehire retired ICE agents. The contractor, he added, can carry out some operational work, including handling transport and setting up so-called “soft-sided” facilities, or tented detention sites, to hold migrant detainees.
Homan said transportation and supply assets from the Department of Defense would also be helpful, indicating that military aircraft could be used for deportations. But Stephen MillerThe incoming White House Deputy Chief of Staff has gone further than Homan, saying the National Guard could be tasked with arresting undocumented immigrants.
“We will deputize them as immigration enforcement officers,” Miller said during a radio interview last year. “They know their country, they know their community, they know their city.”
And while US law generally prohibits the use of armed forces for domestic law enforcement, in an interview with the New York Times last year, Miller said that the reformed Trump administration would ask the so-called Sedition Act to make an exception, so that it could be used. of federal forces to arrest migrants.
The military, Miller also pointed out, could be sent to the southern border with “impedance and denial missions.”
“It reaffirms the basic constitutional principle that you have no right to enter our sovereign territory, even to claim asylum,” Miller said at CPAC this year. “The military has the right to establish a fortified position on the border to say no one can cross here.”
Finally, Trump has promised to use the Alien and Sedition Acts of 1798 – legislation passed during World War II to authorize the surveillance and detention of Italian, German, Japanese immigrants – to deport suspected migrant gang members.
How can the military be sent to the US border?
The US military’s role on the US-Mexico border began during the Mexican American War, with additional forces on the southern border during the Mexican Revolution and World War I.
“Over the past 40 years, military involvement at the border has continued to evolve,” said Joseph Nunn, counsel at the Brennan Center for Justice at New York University School of Law, “And it has gone from ad hoc to routine to very deep in how we approach security and border immigration.
Members of the military stationed at the border have historically performed a variety of support duties, experts told CBS News — from operating surveillance aircraft and transporting US Border Patrol personnel in helicopters to laying concertina wires and guarding Customs and Border Protection vehicles.
Homan’s suggestion to use the military for some operational work that does not involve engaging with migrants would fall into this category and would be an expansion of the National Guard’s duties and some of the active forces working on the southern border. in the previous administration. Last year, troops were sent to the border to help the Border Patrol with administrative tasks, such as warehouse management and clerical work.
The military’s involvement now “is just to get access to more bodies and more aircraft,” Nunn explained, calling military mobilization a force multiplier. “If you want to set up a checkpoint on a highway in Texas or Arizona. Under normal circumstances, you need five CBP agents to run a checkpoint. If you have access to military personnel, you can open a checkpoint with one CBP agent assisted by four soldiers and then suddenly five CBP agents assisted by soldiers can run five checkpoints instead of one.”
“(The Trump administration) will also use the military to do things like build bases and facilities to hold people,” said senior fellow at the Atlantic Council, Thomas Warrick. told CBS News. “They can use the military to fly the prisoners around the country or indeed deport them to other countries if they can get landing rights.”
Can the US military act as domestic law enforcement?
Using the military in an active law enforcement role, rather than in a support capacity, would be more complex and unusual, but subject to at least one legal loophole.
The Posse Comitatus Act prohibits the federal armed forces from engaging in law enforcement activities unless authorized by Congress. But the Insurrection Act of 1807, which Miller cited, allowed the president to use the military in domestic cases that warranted it. While the National Guard is under state control and not activated for federal service, it is not subject to the Posse Comitatus.
Abraham Lincoln used it during the Civil War, and in the 20th century, Dwight D. Eisenhower and John F. Kennedy relied on the law to desegregate schools, deploying troops to the South after the Supreme Court’s landmark decision in Brown v. . The most recent time it was used was in 1992 by President George HW Bush after city and state leaders asked for federal help to quell the LA riots.
According to the law, the military can be activated to enforce law on US soil or to “suppress rebellion” when “unlawful obstruction, combination, or assembly, or rebellion” makes it “impractical” to enforce federal law in the state by state. mentioned. “ordinary judicial process.”
Can this be challenged in court?
Lee Gelernt, a lawyer at the American Civil Liberties Union, said that using the military to carry out deportations under the Alien and Sedition Act would be “illegal,” because the current situation does not allow it.
“The law calls for an invasion by a foreign government,” said Gelernt, who challenged many of the immigration policies of the first Trump administration. “Nothing happened with immigration.”
There is already an agency, ICE, that enforces immigration law with arrest powers that the US military does not have.
“It was designed for unexpected emergencies,” Nunn said, but added, “the text gives the president great discretion” with “no meaningful criteria” to justify its use.
In 1827, the Supreme Court ruled Martin v. Mott that the president has the sole authority to decide whether a situation calls for the military. However, “If you can prove that the president has called for an act of rebellion in bad faith, which would be a high bar to clear but not impossible, you may be able to challenge the decision to apply the Sedition Act,” Nunn said, adding. A century-old law does not allow the military to violate constitutional rights or violate federal law.
Peter Feaver, a professor of political science and public policy at Duke University who focuses on civil-military relations, said using the military as law enforcement would be controversial and could undermine trust in the military, even if there is a legal case.
“This is not what the military is trained for, but above all, it will be very politically polarized because there will be many Americans who will consider this an inappropriate mission, a betrayal of American values or something else.” said Feaver, who has wrote a book called “Thanks for Your Service: Causes and Consequences of Public Trust in the US Military.”
Congress had no role in enacting the Sedition Act. In July, Connecticut Senator Richard Blumenthal, a Democrat, renewed a legislative push to overhaul the law. He first introduced a bill amending the Riot Act in 2020, following Trump’s threat to use force to respond to civil rights protests in the US after the police killed George Floyd, but the effort was stopped by Republican opposition and pushback from the Trump administration.
What if Trump declares a national emergency on the border?
Trump declared a national border emergency during his first administration, after Congress refused to fund the construction of a border wall. He used the declaration to unilaterally divert Pentagon funds to expand the border wall.
“The Pentagon budget — that’s where the money is,” Warrick said. “That’s where the people are. That’s where the planes are.”
The long-term cost of deporting 1 million people a year could average $88 billion a year, according to the American Immigration Council, surpassing the Department of Homeland Security’s $62 billion budget in fiscal year 2025 and totaling nearly $968 billion over ten years. The operation also required rapid expansion of the immigration court system and detention facilities.
“It’s going to be very expensive,” Nunn said. “And not only will it be immediately expensive, but it will also have an opportunity cost – every military service member and military asset that is diverted to help with mass deportation programs or to help with border security is a service member or asset that is not performing normal duties.”
Caitlin Huey-Burns contributed to this report.
Camilo Montoya-Galvez
