On April 4, 2018, President Donald TrumpDonald TrumpTexas announces election audit in four counties after Trump demand Schumer sets Monday showdown on debt ceiling-government funding bill Pennsylvania AG sues to block GOP subpoenas in election probe MORE signed a memorandum directing the secretary of Defense to ask state governors to use the National Guard to provide assistance to DHS “in securing the southern border and taking other necessary actions to stop the flow of deadly drugs and other contraband, gang members and other criminals, and illegal aliens into this country.”
Trump isn’t the first president to use the National Guard this way. Presidents George W. Bush and Barack Obama did it when they were presidents. Their National Guard operations were successful, and Trump’s probably will be too, if his operation is similar to theirs.
We do not know yet how the troops will be used. The memorandum gives the secretary of Defense, working with DHS and the attorney general, 30 days to submit an action plan detailing what resources and actions are needed, including federal law enforcement and U.S. military resources.
But we do know that Trump is taking this action pursuant to his authority under Title 32 of the U.S. Code, which means that the federal government will pay the cost of deploying the troops, but the troops will be under the command and control of the state. Bush and Obama also used Title 32.
We also know that Trump intends to keep National Guard troops at the border until his wall is built.
The governors can refuse to send troops, as former Gov. Arnold Schwarzenegger (R-Calif.) did in 2006 when Bush requested that California more than double the number of National Guard personnel deployed at its border. But the governors of New Mexico, Texas and Arizona — all Republicans — have expressed their support already.
Bush’s Operation Jump Start (June 2006 - July 2008).
Bush responded to requests for more effective border security from the governors of Arizona, California, New Mexico, and Texas, by deploying 6,000 National Guard soldiers to assist the Border Patrol at the southern borders of California, Arizona, New Mexico, and Texas.
The National Guard’s role was limited to assisting the Border Patrol while it recruited and trained new agents. The Border Patrol planned to increase its force to 18,319 agents by end of 2009.
The National Guard troops provided help with surveillance, construction, and logistics. Guardsmen also built fences and manned detection equipment on the border and at command centers.
According to the Border Patrol, during Operation Jump Start’s two-year operation, the National Guard assisted in the apprehension of 186,814 undocumented aliens and the seizure of 316,364 pounds of marijuana. This amounted to 11.7 percent of the undocumented alien apprehensions and 9.4 percent of the marijuana seizures.
Obama’s Operation Phalanx (July 2010 – December 2016).
President ObamaBarack Hussein ObamaTop nuclear policy appointee removed from Pentagon post: report Prosecutors face legal challenges over obstruction charge in Capitol riot cases Biden makes early gains eroding Trump's environmental legacy MORE deployed 1,200 National Guard soldiers and airmen to support the Border Patrol in California, Arizona, New Mexico, and Texas.
According to rules of engagement set by the Pentagon, Guard troops were not allowed to pursue, confront or detain illegal aliens, or investigate crimes, make arrests, stop and search vehicles, or seize drugs.
This provided time for the Border Patrol to hire, train, and equip the additional Border Patrol agents that had been funded by an emergency supplemental appropriations Act.
Obama’s Operation Nimbus (2012).
In February 2012, Obama deployed active-duty soldiers from Fort Hood, Texas, and Fort Bill, Texas, to the southern New Mexico and southern Arizona borders to support CBP with its border security efforts.
The soldiers conducted 24-hour reconnaissance and ground surveillance using advanced optics and sensor equipment during a high-traffic season for human and narcotics smuggling.
The main criticism of Trump’s plan seems to be that it isn’t necessary in view of the fact that border crossings are at an historic low. In March 2018, Border Patrol agents only caught 37,393 immigrants attempting to cross the border.
Frankly, that doesn’t sound like a low number to me. At that rate, the Border Patrol will be apprehending almost half a million undocumented aliens a year.
In any case, it doesn’t make sense to use the number of apprehensions as the criterion for determining how secure the border is. What about the aliens who were not apprehended? There is no way of knowing how many aliens succeeded in making an illegal entry without being detected by the Border Patrol.
Ultimately, Trump's decision to send Border Patrol agents to the border should not be considered unusual or inhumane. Instead, it is a continuation of his existing immigration policies and even presidential precedent.
Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.