On Thanksgiving, thousands of military men and women will miss dinner with their families as they serve their country, whether they be in Djibouti, Iraq, Turkey, Syria, Japan, Southeast Asia or Germany.
They will be joined this year by 5,000 U.S. soldiers and Marines sent to the border by President TrumpDonald TrumpJulian Castro knocks Biden administration over refugee policy Overnight Energy & Environment — League of Conservation Voters — Climate summit chief says US needs to 'show progress' on environment Five takeaways from Arizona's audit results MORE, even as his much of his proclaimed national threat of an immigrant caravan is still hundreds of miles from the U.S. border.
We speak, of course, of the border emergency proclaimed by President Trump 45 times between Oct. 16 and Election Day, Nov. 6; nine times he also proclaimed a forthcoming “invasion” of thousands of criminals, Middle Eastern terrorists and some women and children.
The president ordered 5,000 troops to the border and spoke of sending 15,000 more, though he began the process this week of sending them home by Christmas. He didn’t announce their mission and rules of engagement.
These troops cannot stop or arrest anyone crossing the border, legally or illegally. They are prohibited from enforcing any civilian law whatsoever on the border or anywhere in the country.
So what can these 5,000, or maybe 15,000, U.S. troops do?
They can sweep floors in federal buildings. They can gas federal vehicles. They can man Border Patrol radio equipment. They can feed Border Patrol and other officers and staff tasked by law with protecting the border. They can string “beautiful” barbed wire fencing along the border while they are watched by Mexican coyotes stocking up on wire cutters. And they can spend their paychecks in Texas border towns.
If they violate any of these legally imposed rules, lawsuits will flood the federal courts. Why? Because the military simply cannot enforce civilian laws, and illegal border crossers violate civilian law, not military law.
The “Posse Comitatus” law, passed in 1878 by the U.S. Congress and signed by President Rutherford Hayes, prohibits the military from enforcing civilian laws. This law was part of a deal made by Republicans and Democrats when the 1876 presidential election resulted in an Electoral College tie between Hayes, a Republican, and Democrat Samuel Tilden.
This followed 10 years of U.S. Army occupation of the former Confederate states, originally ordered by President Ulysses S. Grant. The new law, which allowed Republicans to keep the White House, led to the withdrawal of the army from the South.
Unfortunately, this deal also sentenced former slaves, and their children, and their children’s children, to almost a hundred years of segregation, humiliation and mass murder in the South for “crimes” like trying to vote. Despite Posse Comitatus, federal troops were used by Presidents Eisenhower, Kennedy and Johnson to enter Southern communities to enforce federal laws and court orders.
Can, then, President Trump order troops to the border as he has? Yes. Can they be armed? They are not, according to the administration. Can they arrest anyone? No. Can they shoot anyone? Not unless President Trump declares “martial law,” as President George H.W. Bush did in Los Angeles in 1992, during one of the worst race riots in American history, or as President Lincoln ordered in New York City in 1863, in the worst riot in U.S. history.
Lawyers and politicians can argue about whether or not the 5,000 soldiers and U.S. Marines are legally used on the border and what effect they can have, but one thing is sure: 5,000 men and women will be on the border this Thanksgiving, and they won’t be with their families.
Raoul Lowery Contreras is the author of "The Mexican Border: Immigration, War and a Trillion Dollars in Trade" (Floricanto Press 2016) and "The Armenian Lobby & U.S. Foreign Policy" (Berkeley Press 2017). A former U.S. Marine, he wrote for the New American News Service of The New York Times.