A few moments ago, President Donald Trump issued a statement describing his authorization of national guard troops to provide back up for federal customs and border agents along the Mexico-United States border. Mr Trump caused a little confusion on 3 April 2018 during a conference with some Baltic region presidents when he told the press that the Administration was “preparing for the military to to secure our border between Mexico and the United States.” Military was a poor word choice thus the confusion not only in published press reports but on the part of the Mexican government as they considered Mr Trump’s proposal last Tuesday..
Under 18 USC § 1385, no part of the Army or Air Force can be used as a “posse” to execute any U.S. laws. The Department of the Navy has rules that follow Posse Comitatus Act, but I can see a president trying to get around that hole in the law by arguing that the statute does not specifically prohibit the Navy and the Air Force from playing police.
Under 10 USC § 12406, however, the president can “call into federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute the laws.”
Mexico may not take too kindly to an implication that their citizens are invading the United States, but a significant number of Americans, particularly those living along the southwest border, may believe that. I don’t see the actions of Mexicans attempting to enter the United States without so much as a visa or passport as being aggressive, especially those who get in front of a border agent and are willing to plea their case for some type of amnesty.
What could be looked at as aggression would be a tragic scenario where a guardsman shoots a foreign national. Gunned down by a federal or state law enforcement agent is one matter. Gunned down by a soldier becomes an international nightmare.