If Trump wants to use the military to remove people, the plan should hold up in court

President-elect Donald Trump has promised to use the U.S. military to help deport millions of illegal immigrants. This goes against U.S. policy, which doesn’t allow troops to be stationed in the country, but legal experts say it would still be hard to challenge in court.

Aides to Trump have said that they want to use the military to build detention camps or to transport undocumented immigrants out of the U.S. This would free up border police and immigration agents to investigate and arrest people.

Experts said that the government would be safe legally if the military only did support work, especially along the border with Mexico, and didn’t contact with suspects.

Defense and strategic studies professor Ryan Burke of the U.S. said, “I don’t think it will face a whole lot of successful challenges.”

Academy of the Air Force, speaks for himself. “There’s too much ambiguity in these laws to point to something that says, hey, you absolutely cannot do this.”

The 1878 Posse Comitatus Act says that the federal troops can’t help with law enforcement in the United States. Because Congress has made exceptions, presidents have been able to use active-duty military in support jobs for things like fighting the drug trade and when law and order breaks down.

Trump hasn’t said how he wants to use the military to send immigrants back to their home countries. Last week, he replied “TRUE!!” to a post on Truth Social from another user who said that his new government would use “military assets” to deport a lot of people.

Karoline Leavitt, a spokesman for the Trump-Vance transition, said in a statement on Monday, “President Trump will use all of the federal and state powers at his disposal to launch the largest operation in American history to deport illegal immigrants, drug dealers, and people traffickers.”

Since Bill Clinton in the 1990s, every president has sent soldiers from the National Guard or the active military to the border to help with things like training, keeping an eye on things, and fixing things.

Experts said that the support role provisions to the Posse Comitatus Act could also let the military build huge camps to hold people who are going to be sent away. In November 2023, that idea was put forward to the New York Times by Stephen Miller, who worked for Trump as an immigration assistant.

A study from the American Immigration Council, an immigrant rights group, says that the government will need to double the number of beds it has to deport a million undocumented immigrants every year.

Michel Paradis, who used to work as an attorney for the Department of Defense, said that the military is more likely to be sued when it is asked to do more, even when it is just helping out. He said that if the military was used to build a prison camp and money was taken away from a project in that governor’s state, that governor could sue.

BREACH OF NORMS, HARD TO TEST

In April, Trump told Time Magazine that he would back a plan to deport people that uses the National Guard. The National Guard is a reserve group that reports to both the president and the governors of each state.

When the National Guard is under state rule, they are not bound by the Posse Comitatus Act, even if they are doing more than just supporting the police.

In 2020, Trump’s government used the National Guard in Washington, D.C., which was run by the state, to deal with protests over the killing of George Floyd by police in Minnesota.

Govenors could say no, though. California’s Democratic attorney general, Rob Bonta, told Reuters that bringing National Guard troops from one state into another state was “dangerous ground.”

“California certainly will not take that laying down, and we will certainly examine any existing protections that we have to address that,” he added.

Trump could use the Insurrection Act, which is another exception to the Posse Comitatus Act, if leaders of states refuse to send their National Guards.

To use the Insurrection Act, which lets soldiers implement the law, there are a few things that must be true. A public policy think tank at New York University called the Brennan Center for Justice says it has been used 30 times in U.S. history.

A governor could ask Trump to use the act, like former President George H.W. Bush was asked to do in 1992 when there were riots in Los Angeles.

Trump could also use it by himself if law and order broke down or if he thought it was necessary to protect human rights. In 1871, it was used to stop racial violence by the Ku Klux Klan after the Civil War. In the 1950s and 1960s, it was used to make schools desegregate and protect civil rights marches.

People who deal with the troops under the Insurrection Act would be protected by the Constitution in the same way that people deal with police. Military members who were in the U.S. have been criminally examined for things like the 1997 shooting death of an American teenager in Texas.

A professor at George Washington University Law School named Laura Dickinson said that it would be hard to argue that the Insurrection Act is needed, but that judges usually follow the president’s lead when it comes to matters of national security.

“It would be, I would argue, a strong breach of our constitutional norms and our constitutional tradition, but it would be hard to challenge in court,” she stated.