Until now, I’ve never bothered to learn more than the bare minimum about posse comitatus. But on November 20, 2018, the White House signed a memo allowing U.S. troops stationed at the border to engage in some law enforcement roles and to use lethal force, essentially ignorning the limits on deploying our military on U.S. soil. Posse comitatus exists in part to prevent the U.S. military from using police actions on U.S. soil, and to prevent a military coup.
The Posse Comitatus Act of 1878 (PCA) forbids using the U.S. military and/or the National Guard from enforcing Domestic Policy. Or as the non-partisan research agency for Congress,the Congressional Research Service puts it, “case law indicates that ‘execution of the law’ in violation of the Posse Comitatus Act occurs (a) when the Armed Forces perform tasks assigned to an organ of civil government, or (b) when the Armed Forces perform tasks assigned to them solely for purposes of civilian government.”
After 9/11, President George W. Bush issued a Justice Department memo that seemed to suggest that the President could unilaterally mobilize troops within the U.S. to arrest any group suspected of plotting with al Qaeda because that would be interpreted as “protecting national security rather than performing civil police enforcement.” In the end, Bush decided not to carry out the idea.
The Trump administration seems to be trying a similar strategy. They seem to be veering toward militarization of immigration enforcement by framing migrants as emissaries sent by hostile governments. This is probably why they keep repeating the story that middle eastern terrorists are embedded among the asylum seekers traveling from Central America toward the U.S.
Part of their excuse for brushing aside posse comitatus is that the U.S. is under seige by unprecedented numbers of border crossings on our southern border. However, in historical context, the numbers crossing the border are low. For instance, in 1986, the number of people caught by Border Patrol on the US/Mexico border was 1,615,844. By 2015, that number had dropped to 331,333. In 2018, Border Patrol apprehended 339,609.
What’s changed is who is crossing the border and how the U.S. is responding. There has been a significant increase in asylum seekers from Guatemala, Honduras, and El Salvador. Of those, many more than usual are parents with children, and children on their own.
However, under U.S. and international laws, people have a right to seek asylum in the U.S. They are entitled to a screening interview, and if they pass that, they have a right to a full asylum proceeding before a judge.
Today the U.S. is responding differently to migrants, with or without papers. The Department of Justice and Department of Homeland Security have restricted access at ports of entry, so that people who are trying to present themselves legally at an official border crossing have to wait for weeks or are simply refused entry. Asylum eligibility for victims of domestic violence and gang violence is now more narrow.
As part of the Trump Administration’s goal to detain as many asylum-seekers as possible, they’re now pushing for the detention of children and families in "detention centers". Previously, they hastily implemented their “zero tolerance” prosecution policy that led to the separation of thousands of children from their parents. Under legal pressure, many have been reunited with their parents, but some parents are still searching for their children.
Some may argue that it is advisable to have our troops on the southern border right now to protect us from an invading horde. But what I see are historically small numbers of desperate people seeking asylum, and a better life in the U.S.
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