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Sending troops to the border was a mistake. Authorizing unconstitutional troop actions is doubly so
by Erin Dunne
| November 26, 2018 09:55 AM
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Ahead of midterm elections, President Trump deployed thousands of military troops to the southern border. With the election over, many thought the troops might be home for the holidays. But the troops are still there, the military has backtracked on an announcement that the they would be headed home, and the White House just upped the ante on the constitutionality of the whole mess.
Lt. Gen. Jeffrey Buchanan, the man overseeing the operation, had previously told Politico that some troops would begin heading home Thanksgiving week. But on Tuesday, a statement from U.S. Army North said that “No specific timeline for redeployment has been determined,” casting doubt on whether the troops would be gone from the border earlier than the scheduled end of the operation on Dec. 15.
Worse than the uncertainty of the operation, which comes with a $72 million price tag, just before Thanksgiving, the White House gave troops permission to use force — a change from the Title 10 status that the troops had been deployed under.
White House Chief of Staff John Kelly made the change in a “Cabinet order” that allows troops to carry out some law enforcement tasks as well as authorizing force. Specifically, the order grants “Department of Defense military personnel” the authority to “perform those military and protective activities that the Secretary of Defense determines are reasonably necessary” for their protection and that of U.S. Customs and Border Protection personnel, including “lethal force where necessary.” The troops are also authorized to perform law enforcement functions such as “crowd control, temporary detention, and cursory search.”
That order is clearly designed to back up Trump’s statement earlier this month when he said that at the border, throwing rocks would be considered a firearm “because there’s not much difference.”
As much as Trump might like that to be allowed under U.S. law, it’s not.
It was expressly prohibited in 1878 under the Posse Comitatus Act, which was intended to prevent federal troops from acting as law enforcement. That law would be violated “(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,” based on existing case law according to the Congressional Research Service.
Kelly’s Cabinet order does both of those things, in direct violation of law.
Nor does Trump have authority to act under current U.S. code that gives the president powers to quell rebellion. A caravan of migrants, even several thousand strong, is not an armed invasion as Trump would have us believe. Moreover, the president may only exercise such broad authority if the situation so hinders state and federal laws to the point where justice under those laws is impeded. By all measures, the current protections at the border are more than enough to adequately meet the arrival of migrants, no extra troops necessary.
That means that the end result of the political stunt of being tough on immigration by deploying thousands of active duty troops to the border is a tremendously expensive, unconstitutional mess that takes active duty troops away from their families for the Christmas holidays.
📋 sauce: https://www.washingtonexaminer.com/opinion/sending-troops-to-the-border-was-a-mistake-authorizing-unconstitutional-troop-actions-is-doubly-so