While the Trump administration is still fighting a court battle in California over the Posse Comitatus Act, some red state governors don’t believe it should be so damn hard to have active-duty troops help terrorize immigrants. So they’re stepping up by sending their own National Guard members.
The Posse Comitatus Act’s prohibition on military members assisting with domestic law enforcement does not apply when a state governor activates its own guard members. Under Title 32 of the U.S. Code, guard members are paid with federal funds and do work for the federal government.
But when a governor volunteers their guard members, there’s a fiction that the state retains power and therefore does not violate the Posse Comitatus Act.
More than a dozen red states have answered the Trump administration’s call, agreeing to deploy their National Guards to help staff Immigration and Customs Enforcement facilities and process arrests.
This allows the Trump administration to avoid the issue it faced in California, when President Donald Trump federalized the National Guard over the objection of Gov. Gavin Newsom. The state sued, and the administration is still dealing with the court challenge—though it isn’t like that’s stopped anything.
Per a July Pentagon announcement, about 1,700 National Guard troops are being tapped to provide “case management, transportation and logistical support, and clerical support for the in- and out-processing” of ICE arrests.
A defense official told USA Today that that would include taking fingerprints, photographs, and DNA swabs of detainees so ICE officers can do what the announcement calls “core law enforcement activities.”
This looks a lot like the Trump administration is staffing non-agent ICE roles by basically conscripting military personnel instead of hiring administrative staff. That wouldn’t be surprising, as the Department of Homeland Security doesn’t seem able to get qualified help for its immigration war machine.
That may be because, even with the incentives and exceptions DHS is furiously offering, there are just not enough people who want to participate in Trump’s war on immigrants. So they’re dropping age restrictions and handing out huge bonuses to get retired DHS employees to come back.
But no matter what, it doesn’t seem to be enough to achieve the staffing level needed to turn the United States into an immigrant concentration camp from sea to shining sea.
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But there’s another reason the Trump administration is resorting to recruiting National Guard members: to normalize active-duty personnel participating in ICE efforts. For people stuck in the chaotic violence of the immigration system, it’s a distinction without a difference—it’s the same militarized terror.
It’s grim to see red state governors so eager to throw their lot in with Trump, pulling National Guard members from their actual duties. That’s what happened in California, where many of the guard members were specially trained to help fight fires but were unavailable as fire season kicked off because they were on the streets of Los Angeles, fighting residents.
Trump has made it very clear that he wants to treat the military as an extension of his will, dropping troops into any state for any reason. And apparently for red states, that’s perfectly fine.
What a way to take care of your people.