Chris Mirasola
As expected, President Donald Trump signed a flurry of executive orders clamping down on immigration on his first day in office. Of these executive orders, at least five relate to how his administration will use the military to stop border crossings and (potentially) enforce immigration laws within the United States.
None of these executive orders directs an immediate military deployment. But they do make such deployments almost a certainty. And they reveal the range of legal theories we should expect to play out over the months to come. Some of these legal theories are recycled from Trump’s first term. Others are far more extreme (and dubious) interpretations of statutory authorities and the president’s constitutional powers.
Supporting the Department of Homeland Security Through Increased Defense Department Personnel and Barrier Construction at the Southern Border
In “Securing Our Borders,” Trump lays out his concrete policy objectives for the southern border. They include building “a physical wall and other barriers,” “deterring and preventing the entry of illegal aliens,” and “obtaining complete operational control” of U.S. borders. To achieve these ends, Trump declared a national emergency at the southern border. This national emergency is nearly identical to what Trump pursued in his first term. It makes available to the secretary of defense 10 U.S.C. § 12302, which expedites the Defense Department process for activating reservists, including National Guard personnel, for deployments to the southern border. The national emergency also makes available to the secretary of defense an emergency military construction authority—10 U.S.C. § 2808.
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