Can Trump install troops on the California border? He faces obstacles, experts say

A secondary fence separating Tijuana and San Diego.
(Gregory Bull/AP)

So will California soon see troops patrolling the border with Mexico?


President Trump on Tuesday said he hopes to send members of the military to guard the southwest border — an escalation in his push to reduce the number of immigrants coming to the U.S.

But without signoff from Congress or Gov. Jerry Brown, federal law will likely block the president’s plans, at least in California.


The plan

Trump said he planned to meet with Gen. James N. Mattis, the Defense secretary, on Tuesday to discuss options for installing troops at the U.S.-Mexico border.

“The Mexican border is very unprotected by our laws,” Trump said during a news conference with the presidents of Estonia, Latvia and Lithuania. “We have horrible, horrible, and very unsafe laws in the United States.”

The White House confirmed that Trump’s strategy involves mobilizing the National Guard.

Trump said the military would remain at the border until his promised wall is completed. Though Congress has granted $1.6 billion in funding for new and replacement fencing along the border, Trump has not been able to get funding to build a wall fashioned after his prototypes in Otay Mesa.

Trump promises ‘strong action’ to stiffen border laws »

Experts see obstacles

Everard Meade, director of the Trans Border Institute at University of San Diego, said the president will also have a difficult time installing troops at the border.

“They’ve been using military metaphors and talking about invasions — in that sense, it’s not a surprise, but when you move from political rhetoric to actual policy, I don’t see a legal way to actually do it,” Meade said. “The U.S. Armed Forces are far too professional and risk-averse and rule-bound to accept some vague cowboy mission down there. That’s just not what they do.”

The Posse Comitatus Act, which passed after the Civil War to keep federal troops from policing the South, limits federal troops’ deployment on U.S. soil and forbids using them to enforce domestic laws.

The president can deploy troops if there’s an insurrection or invasion on U.S. soil. Congress later gave the military the ability to provide equipment and personnel for certain drug enforcement operations. The Coast Guard is exempt from the act’s restrictions.

The estimated 1,200 migrants in the caravan would not count as an invasion, Meade said. Border Patrol has also apprehended significantly fewer unauthorized crossers since arrests peaked in 2000, according to data from the agency, which Meade said would also argue against sending military.

Can the National Guard move in?

Governors can deploy the National Guard in their states to respond to emergencies. Previous presidents have, with governor signoff, used the National Guard to supplement Border Patrol agents during hiring pushes.

Yet as California has taken a firm stance as a force of opposition to the Trump administration’s immigration policies, Meade speculated that California’s governor would be unlikely to give Trump access to the California National Guard. The governor’s office did not respond to a request for comment in time for publication.

During George W. Bush’s administration, in 2006, under Operation Jump Start, about 6,000 members of the National Guard from across the border region were sent to help Border Patrol agents. Because they weren’t allowed to work as law enforcement, they couldn’t arrest anyone.

Instead, they worked in support roles like monitoring cameras and building and repairing roads and fencing. The operation’s goal was to allow more Border Patrol agents to work in enforcement roles at the border and give the agency time to hire and train 6,000 new recruits by 2008, according to Customs and Border Protection.

Between fiscal 2006 and 2008, Border Patrol staffing grew from 12,349 to 17,499, an increase of 5,150, according to data from CBP.

A growing border force

During the Obama administration, in 2010, under Operation Phalanx, about 1,200 members of the National Guard again mobilized to support agents while Border Patrol recruited more staff.

From fiscal 2010 to 2011, the agency grew from 20,558 to 21,444, an increase of 886. The agency’s staffing levels have decreased every year since then through fiscal 2017.

National Guard Bureau spokesman Master Sgt. W. Michael Houk said that his command “doesn’t have anything more to offer on this than what the White House is saying.”

Both the Bush and Obama administrations communicated extensively with Mexico before deploying troops along the border. Mexico hasn’t received information from the Trump administration yet.

“We have formally requested a clarification on the president’s comments from the State Department and the Department of Homeland Security,” Mexico Ambassador Gerónimo Gutiérrez said. “We share the idea of having a secure border, but we do not always agree on how to achieve that goal. Mexico, naturally, will always act in accordance with our own interests.”

Terence Shigg, president of the local chapter of the Border Patrol union, said that past deployments of the National Guard to augment agents’ resources along the border with Mexico was helpful. Border Patrol is still having issues finding new recruits, he said.

He worried that if many from the migrant caravan arrive at San Diego ports of entry around the same time, that will flood an already clogged system that is running out of detention bed space. Because of increased arrests inside the U.S. and policies that require more immigrants to stay in detention for longer, some asylum seekers have waited for weeks in Mexico for the U.S. to have room to process them.

Other asylum seekers didn’t want to wait and climbed the fence to turn themselves in to Border Patrol, he said. Then agents have to find room for them in detention or release them into the community.

“We don’t want that overflow to impact our operations,” Shigg said. “That puts a burden on our workforce, our resources, to do those things, when that is something that should be done at the port.”

‘Militarization of the border’

Pedro Rios, director of the American Friends Service Committee’s U.S./Mexico Border Program, has criticized what he calls “militarization of the border” by Border Patrol agents. Adding actual military would make the situation that much worse, he said.

“Already when people are driving through checkpoints that are operated by the Border Patrol, there’s a sense that sometimes the 4th Amendment rights are not as strong or not as respected as they should be,” Rios said. “With the presence of any military personnel, I think it would make people feel less protected.”

He worried that increased military presence could lead to unnecessary deaths. He cited the story of Esequiel Hernandez Jr., an 18-year-old who was tending his family’s goats in May 1997 when a Marine sent from Camp Pendleton on a drug-surveillance mission at the border in west Texas fatally shot him.

Vicki Gaubeca, interim director of the Southern Border Communities Coalition, said she found the president’s proposal “extraordinarily alarming.”

“We are not at war with Mexico, and our country is not facing a threat that warrants a military response at the border,” Gaubeca said. “The caravan of migrants traveling to the United States is made up of men, women and children seeking humanitarian and asylum assistance. Instead of talking about troops and walls, we should be focused on working with Mexico and other countries in the hemisphere to find a humanitarian response.”

Jeff Schwilk, founder of San Diegans for Secure Borders, announced before the president’s proposal that he is organizing a civilian response to keep migrants from the caravan out of the U.S.

“The illegal aliens and their open border supporters and handlers have overplayed their hands again with this stunt to test America’s border defenses and ‘catch and release’ asylum policies,” Schwilk said. “If our federal government won’t or can’t stop this border anarchy, the American people will.”

Schwilk was part of a group that, in 2014, blocked buses carrying Central American migrants to Murrieta.

“We (the people) stopped the buses in Murrieta, Calif., in 2014, and we will stop the caravan in 2018,” Schwilk said.

Schwilk did not respond to questions about how his group planned to prevent migrants from requesting asylum — a process codified in U.S. and international law.

Morrissey writes for the San Diego Union-Tribune.