Amid record-setting migrant arrivals at the U.S.-Mexico border, several Republican-led states as far away as South Dakota are mobilizing to send National Guard units to the region at the behest of the Republican governors in Texas and Arizona who have criticized the Biden administration’s response to the surge.
Although cooperation between state and federal authorities on border enforcement and immigration matters is hardly new, the scale of expected involvement by U.S. states far from the southern border is widely viewed as unprecedented.
In recent weeks, states including Arkansas, Florida, Iowa, Nebraska, Ohio, South Dakota and Wisconsin have announced plans to deploy National Guard troops or law enforcement personnel along the southern border.
The role those units can play and the duties they perform remains to be seen and could be a point of contention. Legal experts told VOA the authority to enforce U.S. immigration law is “almost exclusive” to the federal government but is not a military matter.
“Federal law is really clear that members of the military cannot engage in law enforcement activities of any kind within the United States territory,” said César Cuauhtémoc García Hernández, a professor at the Mortiz College of Law at Ohio State University, in a VOA interview.
Texas Republican Governor Greg Abbott declared a state of disaster on June 1, in response to the high volume of unlawful border crossings at the Southwest border in the previous few months. Abbott directed state agencies and border counties to build additional barriers on the U.S.-Mexico border and state and local police to ramp up arrests of unauthorized immigrants.
Together with Arizona Republican Governor Doug Ducey, Abbott urged other states to “provide additional manpower in Arizona and Texas, allowing for the apprehension of more perpetrators of state and federal crimes before they can cause problems in border communities and all states across the nation.”
Hernández told VOA that Congress had established a limited and well-defined role for state and local police to work in partnership with federal authorities under Section 287(g) of the Immigration and Nationality Act.
“But that’s an actual concrete relationship between a local police department and the federal government. … There’s a memorandum of understanding and there’s training,” he said.
In a statement to VOA, a U.S. Customs and Border Protection spokesperson said the agency had longstanding relationships with all states in the country, and they pointed to one program in particular.
“Operation Stonegarden is an example of this, which facilitates funding to state and local law enforcement agencies in support of border security,” the spokesperson said, adding that the agency would “defer to the individual states to speak to any steps they are taking to increase their enforcement posture.”
Maverick County in Texas is one of the jurisdictions that receives a grant from the federal government under Operation Stonegarden to assist CBP officers.
According to local reports, county deputies working with federal agents assist in surveillance, patrol and operations to stop drug trafficking and document migrants’ efforts to illegally cross into the U.S.
Immigration lawyers told VOA that operations like Maverick County’s differ from what troops at the border can do.
“They’re not allowed to stand guard at or near the border, surveilling for people who might be (illegally) entering the United States without the federal government’s permission,” Hernández said.
Even so, it is not unusual for the National Guard to be sent to the border. Though troops are not expected to intercept migrants, they might be asked to provide “mission-enhancing capabilities” along the Southwest border.
Having the military at the border “has been going on for several decades under Republican and Democratic governments. … If you are getting help with the other tasks that are usually performed by state and local law enforcement officers, then that frees them up to do other things, and so there’s sort of an indirect benefit or indirect effect,” Hernández said.
According to the Migration Policy Institute, when Texas asked for other states to send resources, the governor cited a 1996 opinion from the Justice Department’s Office of Legal Counsel (OLC), which allows local enforcement officers to make arrests for “all criminal immigration violations, though not for civil violations such as unlawful presence in the United States.”
Federal law supersedes OLC opinions, but it makes clear that local enforcement could detain a migrant for a short amount of time until immigration agents arrive at the scene.
The Texas chapter of the American Civil Liberties Union sent a letter to 34 counties, advising them not to engage in arresting people because of their immigration status.
Whether the ACLU will file litigation against Abbott’s directives is uncertain, but in a June 24 statement, the organization said the Texas governor “cannot seek to enforce his own version of immigration policy.”
“The federal government, not states or local governments, sets immigration policy and enforces immigration law. … These moves are a cruel distraction from the real problems facing the state, such as fixing the failing state electrical grid,” Kate Huddleston, an attorney at the ACLU of Texas, said in the statement.
Meanwhile, the Biden administration is boosting federal resources at the U.S.-Mexico border. The Pentagon recently announced that U.S. service members will be deployed until September 30, 2022.
Pentagon press secretary John Kirby told reporters that about 3,000 National Guard troops — all working under the command of the U.S. Northern Command and having federal status — will continue the military mission at the southern border that began in 2018 under the former Trump administration. Kirby added that the effort was separate from state-level operations.
Hernández said militarizing the border has both practical and symbolic effect.
“The symbolism of involving the military in any law enforcement action suggests that this is a critically important activity, one that is vital to national security,” he said, adding that it suggests existing resources are “overwhelmed” and need “reinforcements.”