On June 7, President Donald Trump issued a memorandum federalizing 2,000 California National Guard troops to quell immigration protests in and around Los Angeles pursuant to an obscure provision in federal law–10 USC §12406–which has not been used since 1970, when President Richard Nixon federalized the Guard to deliver mail during a postal strike. And the last time the National Guard was federalized over a governor’s objection was in 1965, when President Lyndon B. Johnson deployed the Guard to Selma, Alabama to protect civil rights demonstrators. The law allows federalization of National Guard forces if “there is a rebellion or danger of a rebellion against the authority of the Government of the United States.” Although the deployed military force may protect federal officers enforcing immigration law in Los Angeles, the federalized Guard is, like any federal military force, subject to the Posse Comitatus Act, which prohibits federal troops from being directly involved in domestic law enforcement. In Los Angeles, that means Guard troops are unable to conduct immigration raids, detain persons or make arrests, or in any way engage in direct law enforcement.
California Governor Gavin Newsom objected to Trump’s deployment of the Guard, calling it “purposefully inflammatory” and adding that it “will only escalate tensions. . . [and] erode public trust.” After two days of stepped-up ICE raids in the Los Angeles area, including at a Home Depot parking lot in Paramount, California, demonstrations followed but local officials did not indicate that they needed federal assistance. The White House offered its own version of events. On Saturday, White House Press Secretary Karoline Leavitt described “violent mobs” and stated that the deployed troops would “address the lawlessness that has been allowed to fester.” By June 10, the White House had deployed 700 active-duty Marines and doubled the number of National Guard troops to 4,000. Trump also escalated his rhetoric, describing the protesters as “insurrectionists.”
It is more likely than not that the presence of the troops in the midst of ICE raids will raise, not lower, the risk of violence. The Trump administration surely knows that and may be intending for this modest Los Angeles deployment to fail, so that the administration can justify a more muscular invocation of the Insurrection Act, which would allow U.S. military personnel to perform law enforcement activities.
Trump’s actions in Los Angeles are part of a larger effort to militarize immigration enforcement. He has another, lesser-known, tool at his disposal that he can use to dramatically increase the number of Guard troops involved in these types of activities. Known as the 287(g) program, it delegates immigration enforcement to state and local law enforcement agencies. We worry that using 287 (g) agreements to enable National Guard units to enforce immigration laws creates enormous risk, undermines military readiness, and threatens the longstanding traditions of separating military functions from civil society. As one of us has written before, domestic use of the military is often fraught and is just as often corrosive to American democracy. Part-time soldiers police their neighbors, federal authority needlessly displaces state and local elected officials, and the relationship between the military and civil society becomes strained.
The Trump Deportation Agenda
Trump began militarizing immigration enforcement on his first day in office, laying the groundwork for a confrontation between the military and the public. In his inauguration speech, Trump promised “to launch the largest deportation program of criminals in the history of America.” The president also stated that he would “send troops to the southern border to repel the disastrous invasion of our country. . . [because] as commander in chief I have no higher responsibility than to defend our country from threats and invasions.”
The president knows that absent a massive new congressional authorization and infusion of funds to Immigration and Customs Enforcement (ICE) and Customs and Border Patrol (CBP), the immigration infrastructure housed within the Department of Homeland Security (DHS) cannot carry out these plans. Indeed, the “One Big, Beautiful Bill Act” is meant to address this gap, providing $168 billion to immigration and border law enforcement. Thus, the president’s determination to rely on military support for immigration policy is an effort to close the gap in financial and human resources needed. Upon taking office, Trump also signed 10 executive orders on immigration and border enforcement that identified legal authorities that would purport to authorize a significant domestic deployment of the U.S. military for immigration purposes.
One executive order, Declaring A National Emergency at the Southern Border of the United States, allows the Defense Department to deploy troops to secure the border. Presidents George W. Bush and Barack Obama also deployed troops to the border, but Trump has specifically called the situation “a national emergency,” and has labeled the immigration flow an “invasion” that “represents a grave threat to our nation.” More important, the national emergency declaration unlocked funds for further construction of Trump’s border wall, repeating a step he took in 2019. And the order required a report from the Secretaries of Defense and Homeland Security within 90 days “regarding additional actions that may be necessary to obtain complete operational control of the southern border, including whether to invoke the Insurrection Act of 1807.”
A second executive order, Clarifying the Military’s Role in Protecting the Territorial Integrity of the United States, assigned the military with the mission of “repelling the invasion and sealing the United States southern border from unlawful entry . . .” Trump assigned U.S. Northern Command with this mission, highlighting the military’s new role in preventing unlawful mass migration. Today, there are nearly 10,000 troops at the border, with DHS asking for 20,000 more to assist in deportation.
A third executive order, Protecting the American People Against Invasion, revoked several Biden administration immigration policies; instructed DHS, its immigration agencies, and the Justice Department to hasten the removal of undocumented persons and the civil and criminal prosecution of immigration law violators; and ordered DHS to “construct, operate, control, or use” sufficient removal detention facilities to implement administration immigration policies. Further, Trump called on the Secretary of Homeland Security to partner with state and local law enforcement on signing Section “287(g)” agreements to enforce federal immigration laws.
This last step may be the most powerful immigration enforcement tool that Trump has invoked. The so-called 287 (g) program, added to the Immigration and Naturalization Act in 1996, delegates immigration enforcement to state and local law enforcement agencies as prescribed in individual memorandums of agreement with ICE. In practice, they effectively deputize a nationwide immigration police force that considerably bolsters existing ICE resources.
Trump prioritized these agreements during his first term and has acted with much greater urgency to sign more of them during his second term. The new emphasis is paying off: there are 649 287(g) agreements across 40 states. While most 287 (g) agreements are with local police and sheriffs’ departments, state National Guards can also enter into these agreements. Indeed, there are 287(g) agreements with two state National Guards (Texas and Florida) as well as the Florida State Defense Force (military units that operate under the sole authority of the governor). The Texas National Guard has 19,000 members and Florida National Guard has 12,000. These 287 (g) agreements open the door to a massive expansion of military participation in immigration enforcement.
The History of Section 287 (g) Agreements
Of the 649 signed agreements to date, the overwhelming majority have been signed in the months since Trump took office this January. In a nutshell, Section 287 (g) agreements are poised to take center stage in enforcing federal immigration law wherever state and local officials and their laws and policies do not stand in the way of the federal intervention. Yet the agreements have hardly paved the way to better immigration enforcement.
Until earlier this year, there were two types of 287 agreements in use: the Jail Enforcement Model and Warrant Service Officer Model. Under the Jail Enforcement Model, state and local law enforcement personnel identified and processed removable foreign nationals who were arrested and placed in state or local custody. The Warrant Service Officer program enabled designated state and local jail officers to serve administrative warrants on individuals already in state or local custody. A third and more aggressive model—the Task Force Model (TFM)—authorizes state and local officers to arrest, detain, and interrogate individuals who have not yet been charged with a crime. Once terminated by Obama after a litany of civil rights abuses, the TFM has roared back to life under Trump with 315 TFM agreements in 30 states.
In the first few years of the program, only a modest number of 287 (g) agreements were signed, but abuses of the authorities emerged. During the George W. Bush administration, Maricopa County, Arizona entered into a Task Force model 287(g) agreement allowing Maricopa County law enforcement to exercise robust immigration enforcement authorities under the direction of Sheriff Joe Arpaio. Arpaio engaged in racial profiling and targeted individuals that posed little or no threat to public safety. The Obama-era Department of Justice investigated (and later sued) Maricopa County, finding a consistent pattern of race-based constitutional violations. Following the investigation and lawsuit, the Obama administration terminated its 287(g) agreement with Maricopa County and ended the use of the model of agreement used in Maricopa County throughout the nation. Just 36 of these agreements were in place at the end of Obama’s second term.
Trump breathed new life into ICE’s participation in 287(g) agreements in his first term by signing an executive order that called for the expansion of 287(g) agreements while broadening the definition of who could be removed under federal immigration law. In 2017, 287(g) participation more than doubled as agreements were signed with 76 state and local agencies. President Joe Biden rescinded Trump’s executive order and his administration did not sign any new 287 (g) agreements.
Since Trump took office in January, the number of 287 agreements has surged. Trump resurrected Maricopa County’s much more comprehensive Task Force Model. The 287 agreements with the Florida and Texas National Guard follow the Task Force Model, effectively super-charging the military’s role in immigration law enforcement. These ICE-National Guard agreements authorize service members to interrogate, arrest, and detain individuals, all traditional law enforcement functions that have historically been undertaken by civilians in American society.
Posse Comitatus and the 287 Agreements
In 1878, Congress enacted the Posse Comitatus Act (PCA) and thus created a statutory presumption against military participation in law enforcement, a presumption that may only be overcome by other legal authorities found in statute or the Constitution. Despite the lack of criminal prosecutions for violation of its terms, the PCA has fostered a longstanding and pervasive orientation in the U.S. military to steer clear of civilian law enforcement except pursuant to express statutory authorization or to repel a sudden attack on the United States.
A few of those statutory exceptions to the presumptive ban in the PCA loom large in the debates over the military’s involvement in immigration enforcement. But the exceptions do not apply and the PCA likewise is inapplicable to National Guard units acting pursuant to 287 status and reporting to the state governor. Following the venerated principle of the American federal system, state governors control their National Guard units when deployed in their default state status.
The takeaway is that state National Guard units may enter into 287(g) agreements, subject to a governor’s approval and any other state law. But the 287(g) agreements do not federalize the National Guard or any other state and local law enforcement agencies. They are deputized, not federalized and possess the full menu of law enforcement authorities in accordance with state law.
What Does the Renewed Emphasis on 287 Agreements Mean for Immigration Enforcement?
The 287(g) agreements have real implications for the so-called “sanctuary cities” and “sanctuary states” now being challenged by the Trump administration. On April 28th, Trump signed an
executive order, Protecting American Communities from Criminal Aliens, that directed the attorney general to publish a list of sanctuary jurisdictions, defined as those places obstructing the enforcement of federal immigration laws. In May, DHS identified a list of more than 500 sanctuary jurisdictions, setting the stage for a massive nationwide immigration law enforcement effort that is now aided by hundreds of 287(g)-designated law enforcement partners. The rapid emergence of 287(g) agreements this year signals that any identified sanctuary jurisdiction where there are relevant agreements in place will be on the frontlines of the immigration enforcement effort.
For the most part, states and cities may not obstruct federal enforcement of lawful federal programs or activities. Even where states or cities have alternative enforcement policies alongside a federal program, the federal program implementation may lawfully preempt any inconsistent state or local law or program. The federal authority derives expressly from the Supremacy Clause of the Constitution, Article VI, section 2. It is equally clear, however, that following anti-commandeering decisions of the Supreme Court, the federal government may not obligate the states or its subdivisions to enforce federal laws. As such, sanctuary cities or states may be forced to permit federal immigration enforcement in their jurisdictions, but they are not required to participate in its operations.
An Example, Georgia: Sanctuary Jurisdictions with an Active 287 Agreement
The newly-signed 287 agreements form consensual partnerships between the federal government and local law enforcement agencies. Anti-commandeering principles do not apply once a state or local government enters into such an agreement.
In Georgia, for example, the Department of Homeland Security labeled Atlanta and Athens as sanctuary cities and Fulton, Dekalb, Douglas, and Athens-Clarke counties have all been named sanctuary jurisdictions. On March 17, Governor Brian Kemp announced a partnership between the Georgia Department of Public Safety (DPS) and ICE, which will train 1,100 DPS officers “to better assist and apprehend[] illegal aliens who pose a risk to public safety in the state.” Thus, Georgia DPS may be used to enforce immigration laws throughout these sanctuary cities and counties, consistent with the governing Georgia-ICE 287 agreement.
An Example, Illinois: Sanctuary Jurisdictions and No 287 Agreement
It remains to be seen how ongoing immigration enforcement will occur in sanctuary jurisdictions that lack an active 287 (g) agreement. State governors possess state police powers and control law enforcement jurisdiction over activities within that state.
For example, Illinois not only lacks a 287 agreement with DHS but restricts law enforcement agencies in Illinois from entering into 287 agreements. Could the Missouri Highway Patrol, which has an active 287 agreement, enforce federal immigration law in Illinois? Not without Illinois’ consent. Law enforcement personnel from other states will be prohibited from enforcing immigration law in Illinois absent consent from the Illinois governor. Enforcing federal immigration law in Chicago and other Illinois jurisdictions will remain the province of ICE.
Invoking the Insurrection Act
In addition to Trump’s federalization of California National Guard units in Los Angeles, the widespread use of 287(g) agreements may be an additional step in advance of a wholesale federal militarization of immigration enforcement. Already this year, we have seen an historical deployment of military forces at the southern border as well as the creation of a new National Defense Area. Moreover six states (California, Oregon, Washington, Illinois, New Jersey, and Connecticut) restrict entering into 287(g) agreements as a matter of state law or policy. Absent additional episodes like the one now unfolding in Los Angeles, the president’s plans will likely be blunted in several blue states that refuse to enter into 287(g) agreements and thus limit their cooperation with ICE.
The Insurrection Act, however, would allow the president to deploy active-duty military and federalized National Guard to enforce federal law or suppress a rebellion against federal authority whenever the president determines that “unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States” make it “impracticable” to enforce federal law “by the ordinary course of judicial proceedings.” A lengthy policy brief prepared by Trump administration lawyers parrots the language of the act and argues that a migrant “invasion” satisfies the Insurrection Act predicate, making it “impracticable to enforce the laws of the United States.” So far, the administration has resisted this more radical step, relying instead on ICE, cooperating states and their 287(g) agreements, and the extant military deployments to facilitate enforcement. Nonetheless, the Insurrection Act would allow the president to use the National Guard or units of the regular military following his determination of the impracticability of enforcing the laws with civilian resources. No state officials may stand in his way because the Guard units are operating as federal armed forces.
The Insurrection Act has never been relied on to authorize immigration enforcement or border security. Its last declaration was during the 1992 Los Angeles riots, which erupted when the police officers who beat Rodney King, a Black motorist, were acquitted. Trump, however, has made clear from day one that he is interested in its use. His January 20 executive order, Declaring a National Emergency at the Southern Border of the United States, specifically calls for the Secretaries of Defense and Homeland Security to report to the president “regarding additional actions that may be necessary to obtain complete operational control of the southern border, including whether to invoke the Insurrection Act of 1807.” As the ongoing Los Angeles situation suggests, an invocation of the Insurrection Act is likely not far off.
Summary of Outstanding Questions & Concerns
Given the outsized role that National Guards are poised to play in federal immigration enforcement, there are several pressing questions and concerns.
- How will training for this new mission be conducted? Prior to actively enforcing immigration law, the law requires that state and local agencies must undergo training—but this requirement appears to be short-circuited in many instances. There are reports that 287 training has now been reduced from four weeks in-person training at the Federal Law Enforcement Training Center to just a 40-hour online training module. Deputizing law enforcement to take on an entirely new complex and dynamic mission in such a manner strikes us as ill-conceived and dangerous—particularly when 287 already has a history of racial profiling and civil rights violations.
- How will ICE effectively oversee this massive effort? In a troubling sign, ICE eliminated the 287 Program Advisory Board, which vetted law enforcement agencies’ applications in conjunction with the newly diminished DHS Office of Civil Rights and Civil Liberties. 287 agreements are now centralized without meaningful vetting. It is unclear how ICE will supervise, train, and integrate National Guard troops into the broader immigration law enforcement missions.
- What is the impact of this new mission on National Guard readiness and civil-military relations? National Guard men and women recently supported the COVID-19 nationwide relief and response effort, the largest domestic military deployment in recent history. In recent years, the U.S. government has asked National Guard personnel to patrol the border, drive school buses, teach in high schools, guard prisons, and take on a host of missions that address problems that are traditionally managed by civilian authorities. The military— particularly the state National Guard—is already a stressed force and government should tread carefully before asking it to take on additional missions. General Daniel Hokanson, the outgoing chief of the National Guard Bureau recently made the same point: time spent on nontraditional missions—such as immigration enforcement—reduces the Guard’s ability to train for core functions (serving in combat overseas, responding to natural and manmade disasters). Although most people welcome the National Guard into their communities following a natural disaster, giving the Guard the immigration enforcement mission changes that dynamic as soldiers detain and arrest their neighbors. Retired National Guard Major General Randy Manner recently testified that these National Guard members “may be placed in an impossible, politically fraught position, eroding domestic civil-military relations.”
The United States has historically been widely respected for its tradition of entrusting law enforcement to civilians–federal agents, local and state police, sheriffs, constables. By contrast, the uniformed military fights wars and keeps Americans safe from foreign adversaries and it is only episodically needed for domestic assignment. American traditions are reflected in the Constitution and are explained in part by antipathy to the English Crown and the heavy-handed use of the British military in the colonies. Although the Constitution enabled Congress to Call Forth the Militia (today’s National Guard) to “repel invasions,” the grant of authority was understood to anticipate the possibility of war being brought to the United States, not to facilitate reaching arbitrarily assigned deportation quotas.
