U.S. Northern Command, Public domain, via Wikimedia Commons
Democrats and mainstream media have challenged the legality of President Trump’s expanded use of the military in immigration enforcement. However, the deployment is lawful under the national emergency declaration Trump issued on his first day in office, which allows the Department of Homeland Security (DHS) to access Department of Defense (DOD) resources.
A presidential memorandum issued on June 7, 2025, authorized the activation of National Guard units into federal service to protect ICE personnel and federal property, with up to 2,000 troops deployed for a 60-day period.
The legal framework avoids violating the Posse Comitatus Act, which bars active-duty military from participating in domestic law enforcement, by assigning National Guard troops under Title 32 status. This keeps them under state command while funding their mission with federal resources.
Congressional Democrats have sharply criticized the move. New Jersey’s Democratic delegation condemned the use of military bases for immigrant detention, calling it “an inappropriate use of our national defense system and military resources.” However, “inappropriate” is not the same as illegal, and Democrats have yet to offer a viable alternative to address the consequences of years of open borders and unchecked illegal immigration.
The administration has requested substantial military support for immigration enforcement. In May 2025, DHS formally requested 20,000 National Guard members to assist ICE in operations ranging from “night raids” and “rural interdictions” to guard duty at detention facilities.
Currently, about 700 Guard members are deployed in Florida, Louisiana, and Texas, with hundreds more expected in Arkansas, Indiana, Iowa, Nebraska, South Carolina, Utah, and Virginia. Additionally, approximately 200 Marines from Marine Wing Support Squadron 272 have been deployed to Florida to provide administrative and logistical support.
The request, along with accompanying DoD policy changes, reflects the administration’s belief that effective immigration enforcement requires unified civilian-military coordination. As the DHS memo states, to “Make America Safe Again,” DHS and DoD must operate in lockstep at every level.
The expanded operations coincide with ICE receiving over $100 billion in new funding, prompting questions about how military personnel assigned to ICE and CBP will be integrated alongside these resources. During congressional testimony, acting ICE Director Todd Lyons stated that DHS does not expect to reimburse the Pentagon for most costs, though limited repayment agreements exist for specific facilities, such as the base in New Jersey. A leaked memo describing Los Angeles operations as a model “to be replicated” suggests the administration plans to implement similar joint military-civilian operations in urban centers nationwide.
While the use of military personnel in immigration enforcement and domestic deployment breaks with longstanding convention, it remains firmly grounded in legal authority granted to the president under both the Constitution and federal law. As Commander-in-Chief, the president possesses broad constitutional powers, which are reinforced by statutory authority under the Immigration and Nationality Act (INA) and national emergency legislation.
On January 21, 2025, President Trump declared a national emergency at the southern border, invoking sections 201 and 301 of the National Emergencies Act (50 U.S.C. 1601 et seq.) and section 12302 of Title 10 of the U.S. Code. This legal framework provides multiple authorities enabling the military’s expanded role.
Among them, 10 U.S.C. § 2808 allows the Secretary of Defense to initiate military construction projects using unobligated funds during a national emergency that necessitates the use of armed forces. Section 12302 permits the activation of reserve components, including the National Guard, while 19 U.S.C. § 1318(b)(1)(C) authorizes the Secretary of Homeland Security to close or modify customs offices during a national emergency.
Additionally, Title 10, Chapter 15 authorizes federal military support for civilian law enforcement agencies. Although it bars the military from directly conducting core law enforcement actions such as arrests, searches, or seizures, it allows support functions like intelligence sharing, logistics, equipment maintenance, training, transportation, and the provision of detention space.
To further expand military involvement while remaining within legal bounds, the administration designated approximately 200 miles of federal borderlands as “National Defense Areas” under Pentagon jurisdiction. This designation allows military personnel to detain migrants for trespassing on federal military property until Customs and Border Protection (CBP) officers arrive.
By limiting detentions to military-controlled areas, this strategy effectively circumvents the Posse Comitatus Act, which restricts the use of federal troops in domestic law enforcement. As such, while controversial, the administration’s approach to military immigration enforcement is not without legal precedent or statutory justification.
If all other legal avenues are exhausted, challenged, or overturned by the courts, President Trump still retains one final option: invoking the Insurrection Act. Codified under 10 U.S.C. §§ 251–255, the Insurrection Act serves as the primary statutory exception to the Posse Comitatus Act, granting the president authority to deploy federal military forces to suppress insurrection, enforce federal law, or restore public order when state authorities are unwilling or unable to do so. Though historically rare, invoked only 28 to 30 times, mostly in response to civil unrest, the Act has never been used for immigration enforcement.
Nonetheless, the Trump administration is reportedly weighing this option, with internal reviews underway and reports expected within 90 days assessing whether additional measures, including potential invocation of the Insurrection Act, are warranted.
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