A Texas National Guardsman observes as Border Patrol agents pat down migrants who have surrendered themselves for processing, May 10, 2023. (Photo by Corrie Boudreaux for Source NM)
WASHINGTON — The Trump administration is gearing up to militarize a stretch of the southern border, according to a Washington Post report Thursday, raising concerns from experts that the move would put U.S. military members in direct contact with migrants, a possible violation of federal law.
The White House is mulling the creation of a military satellite installation across the 60-foot-deep strip of federal land known as the Roosevelt Reservation, according to the report.
The move would create a military buffer zone stretching across the U.S.-Mexico border in Arizona, California and New Mexico, and mean any migrant crossing into the United States would be trespassing on a military base, allowing active-duty troops to hold them until border patrol agents arrive.
Nearly 10,000 military personnel have already been deployed to the southern border, but creating the military buffer zone would be an escalation of the Trump administration’s ramp-up of the use of the U.S. military in its plans for mass deportation of immigrants without permanent legal status, which experts say would be illegal.
“The use of active-duty military for what clearly amounts to law enforcement on the border is absolutely, plainly illegal,” Stephen Dycus, a professor in national security law at the Vermont Law School, said during a Thursday interview. “It’s a violation of the Posse Comitatus Act.”
The 1878 law generally prohibits the military from being used in domestic law enforcement.
Adam Isacson, director of defense oversight at the Washington Office of Latin America, a research and advocacy group that aims to advance human rights in North and South America, said the escalation of military presence at the border is new.
He added that the military being used to operate deportation flights has “involved an uncomfortable amount of contact between soldiers and migrants.”
“Most of the military that have been sent (to the border) over the years have been a couple thousand National Guard members at a time — a pretty low-level mission,” Isacson said. “So that chance of contact between the soldiers and civilians on U.S. soil (was) very, very, very, very slim. That’s all changing now.”
A Pentagon spokesperson told States Newsroom in an email Thursday that the department has “nothing to announce at this time” regarding the establishment of a base along stretches of the border.
The White House did not respond to a request for comment.
The scenario could spark further legal challenges against the Trump administration, which is already in hot water for potentially defying a federal judge’s order to halt deportation flights of Venezuelans under the wartime Alien Enemies Act.
Transformation of military role
While sending activity duty to the southern border has occurred for more than 20 years in intelligence and logistics roles, military members do not engage in immigration enforcement.
During a visit to the border Feb. 3, Defense Secretary Pete Hegseth told reporters “guys and gals of my generation have spent decades in foreign countries guarding other people’s borders. It’s about time we secure our own border.”
“All options are on the table,” Hegseth said.
Joseph Nunn, liberty and national security counsel for the Brennan Center for Justice, said during a Thursday interview he would expect the Trump administration to face lawsuits for essentially using the military for civilian law enforcement.
“This is a transparent ruse to try to evade the Posse Comitatus Act by taking advantage of something called the military purpose doctrine,” Nunn said.
Under that doctrine, Nunn said, the military can maintain order or take action to further other military purposes, even if the action does have incidental benefits to civilian law enforcement. For example, if a drunken driver attempts to drive onto a base, military police can detain them before handing them over to civilian law enforcement.
But Nunn said specifically installing a base along the border as a way for the military to detain migrants as trespassers has not been tried before.
“It’s an abuse of the doctrine and one that the courts should reject because in that circumstance the military installation will have been created and the soldiers will have been stationed there for the purpose of assisting with a civilian law enforcement operation,” Nunn said. “That is immigration enforcement.”
Migrant encounters down
Transferring federal land to the Department of Defense, which because it’s fewer than 5,000 acres doesn’t need congressional approval, comes at a time when border encounters are relatively low.
Apprehensions at the southern border have plummeted to their lowest level in 25 years, with 8,347 encounters reported in February, according to U.S. Customs and Border Protection data.
The trend started in February of last year due to Mexico increasing immigration enforcement and policies under the Biden administration that limited asylum claims between ports of entry, said Colleen Putzel-Kavanaugh of the Migration Policy Institute, a nonpartisan immigration think tank.
“As with any change in administration, and this was true of the first Trump administration, because of the general rhetoric around immigration, we did see kind of an initial decrease, so it’s not altogether surprising to see that decrease,” Putzel-Kavanaugh, who studies migration trends along the border, said.
“There’s kind of a general wait-and-see period of people trying to figure out what makes the most sense in terms of their own needs and in their journey,” she added.
The sections along the southern border that the Trump administration is eyeing – U.S. Border Patrol sectors based in San Diego; Tucson, Arizona; and El Paso, Texas – are “consistently the busiest,” she said.
Putzel-Kavanaugh added that it’s typical for migration patterns between sectors to change.
“I think it’s certainly plausible to assume that, if they have this militarization campaign across sort of the western side of the border, it’s likely that flows will then start going east,” she said.
Reaction from New Mexico lawmakers
Democrats slammed the idea, questioning why defense funding should be used at the border as global conflict increases.
U.S. Sen. Ben Ray Luján, a New Mexico Democrat, expressed skepticism about relying on defense resources to solve migration issues.
“Securing our border and protecting the safety of New Mexicans is a top priority, which is why I supported the bipartisan border security agreement — an effort that was ultimately killed by then-candidate Donald Trump,” Luján said in a statement.
“Diverting military resources for this purpose would weaken our military readiness. There is broad bipartisan consensus that we need comprehensive immigration reform and stronger border security, but not at the expense of existing defense missions.”
Rep. Gabe Vasquez, also a New Mexico Democrat, said in a statement the reported plan is “yet another reckless and wasteful proposal that does nothing to fix our broken immigration system.”
“In a time of global uncertainty, our military resources are best used to combat serious international threats abroad,” Vasquez said.
The offices for the Republican-led Senate and House committees on the Armed Forces did not respond to requests for comment.
Source New Mexico editor Julia Goldberg contributed to this report.
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