The Trump administration is considering using the National Guard for immigration enforcement and is setting up a potential state rights showdown.
Appeal Court Blocks Trump’s decision on control of National Guard
The appeals court has halted the federal judge’s decision to move control of the National Guard away from President Trump and return it to California.
WASHINGTON – The possibility that the Trump administration will send National Guard troops over attacks of immigrants outside its state could lead to legal clashes between states.
The Pentagon is requesting the Department of Homeland Security to call 20,000 members of the National Guard to invoke 20,000 members for in-state immigration enforcement, costing about $3.6 billion a year. These units, if approved, will differ from the 4,000 security guards currently deployed in Los Angeles under executive order.
Security forces under state authorities are not subject to laws that prohibit the military from directly participating in civil law enforcement activities.
According to CNN, the Trump administration is assessing whether the DHS can send National Guard forces, which have been called for by Republican Gov. Greg Greg Abbott, to blue states like California, which have been called for National Guard procured from red states, such as from the Texas government. Stephen Miller, deputy chief of staff at the White House domestic policy, has previously come to mind the idea of such developments.
“You go to the Red Governor and say, ‘Give us your National Guard.’ We represent them as immigration executive officers,” Miller said in a 2023 podcast interview with conservative activist Charlie Kirk. “If you go to an unfriendly state like Maryland, it’s just arrested in Maryland in Virginia.”
A legal expert and former DHS official who spoke to USA Today highlighted the unprecedented nature of such a proposal.
John Sandweg, an attorney who acted as ICE’s representative director and acting advisor to DHS, said using security guards for the execution of interior duties in unwilling states would “push the envelopes of the National Militia and National Guard concepts.”
Sandweg said such arrangements were “very in line with everything we see” from the Trump administration, which relied on obscure laws when Trump overturned Newsom and controlled a significant portion of the California State Guard (to beat the US Postal Service strike in 1970). DHS requests, if met, will fundamentally leave the historical role of security guards in immigration enforcement.
The White House introduced USA Today to DHS, which did not immediately respond to an investigation. The pentagon did not respond to questions from USA Today.
“We are very focused on President Trump’s focus on protecting his hometown at the southern border and supporting law enforcement officials working on the ice in Los Angeles,” the Defense SEC. Pete Hegses said at a hearing to the Senate Armed Services Committee on June 11.
Return of the ICE Partnership Program
The DHS proposal called for 20,000 National Guard troops operating under what is known as Title 32 authority. In such a situation, the federal government takes up the tab, but the governor holds command.
However, a request memo obtained by USA Today specifies that guards will work for ICE through a partnership program known as 287(g).
In recent months, the Trump administration has dramatically increased ICE reach through its 287(g) partnership program by reestablishing the “taskforce” model.
ICE confirmed the receipt of questions from USA Today regarding the 287(g) program but did not respond prior to publication.
The 287(g) program, which began in 1996, allows DHS and ICE to delegate immigration enforcement agencies to local and state law enforcement agencies after which officers have been trained from ICE.
According to Huyen Pham, a law professor at Texas A&M, states and local governments are “represented to enforce certain aspects of immigration law.”
According to the agency’s website, once qualified, participants from local/state agencies responsible for the task force agreement can join the ICE-led immigration enforcement task force.
However, concerns about racial profiling and relative inefficiency by partner institutions have led the DHS to terminate all task force agreements during the Obama administration, compared to other programs. The Trump administration has rapidly revived the model.
Public ICE data shows that between inauguration and June 12, the administration inked 287(g) task force partnerships with 338 new local and state law enforcement agencies. This includes four states where National Guard state leaders have signed an Ice Task Force agreement. Texas, Florida, Louisiana (parent company, Louisiana Military Department) and West Virginia.
Florida Gov. Ron DeSantis included the Florida State Guard on his list of agents who thanked the Florida State Guard for his role in the statewide immigrant raid in April, but it is unclear that certain roles from those states will play alongside DHS.
However, whether 287(g) task force participants can operate across state lines is another question that has not been legally tested.
Jomaher, a top career lawyer for DHS from 2011 to 2024, said the agency’s interstate use of interstate highways was “not proposed” in the department.
Fam described the idea as “unknown territory.”
During his first administration, Trump deployed Red State National Guard forces in Washington, D.C., a state-controlled position in Washington, D.C., in June 2020, without the consent of local officials, but experts believe there is a constitutional problem with federal task forces bringing state-controlled security guards to unmarried states.
However, some people, including legal scholars at the Brennan Center at New York University, have argued that there is a potential loophole unless Congress uses the National Guard to enforce laws in other states without the governor’s consent. Citing Alexander Hamilton’s writing in his federalist dissertation, Maher said, “I didn’t think about having a militia or national guard in one state… I’ll do law enforcement in another state that I don’t want that to happen.”
Rebellion Law
A state lieutenant who called for anonymity to discuss future operations said he believes it is unlikely that the administration will take them to unwilling state unless the rebellion law is called.
The Rebellion Act allows the president to use active duty troops, including the federal government, under presidential authorities, as is the case with 4,000 members of the California State Guard today. At that point, state consent has no significant impact on deployment decisions.
Trump has directed the Pentagon and DHS to study using the Immigration Enforcement Act in an executive order signed on the first day of the second term. He has not invoked rebellion laws amid anti-ice protests or ongoing deportation pushes, but Trump said he would consider doing so if ongoing anxiety worsens.
Bill Enyart, a retired two-star general who led the Illinois National Guard, a retired two-star general, said using the rebellion law to deport was a “federal overreach.”
Enjort, who is also a lawyer, argued that earlier invitations to laws to negate governors “define citizens’ rights,” such as when President John F. Kennedy made the federal government federal government to enforce racial integration at the University of Alabama.
“This is clearly a different situation,” Enjart said.
Contributions: Tom Vanden Brook and Francesca Chambers, USA Today
