During his State of the Union address, President Donald Trump reaffirmed his orders to deploy “another 3,750 troops to our southern border” to prepare for a “tremendous onslaught” of migrants seeking to illegally cross into the United States. Trump’s language drew boos from some members of the lower chamber. However, these are boos of irony. The same members of Congress booing the president, decrying his use of executive authority, are the very legislators with the power to restrict it. Now that a congressional spending bill has been passed—but not with the specific border wall funding provisions sought—President Trump is using his executive authority to “declare a national emergency” at the border. With Congress not meeting the administration’s demands, such an emergency will formally permit the president to deploy even more resources to the border.
Congressional ignorance (or apathy) is precisely why the United States has morphed the military into a new twenty-first-century national security architecture in which everything can be an existential threat. Rosa Brooks astutely identified this growing issue in How Everything Became War and the Military Became Everything, where she described how the US military is becoming an “all-purpose tool” for problems around the world. The same trend, it appears, holds true for problems at home.
The American defense enterprise has modernized and adapted to fit changing times. Unfortunately, US defense policy and law governing the domestic use of the military lags. It only took one president motivated by partisan gridlock and a bedrock campaign promise to challenge tradition and buck the status quo. Unless Congress acts to bring modern American defense policies and laws into the twenty-first century, things like the use of executive orders to identify an existential threat by presidential decree will only continue. This is problematic because the use of executive orders to address national security problems is a new form of norm erosion, especially when Congress is fully capable of passing legislation to address threats to US security. For instance, Congress actually passed legislation regarding Chinese political operations in the United States, and appears primed to pass even more legislation to deal with Chinese espionage, to include even restricting Chinese students and their access, due to some of these students passing sensitive information and technology to Chinese intelligence.
However, Congress is not fully to blame. Annoyed by congressional inaction, President Trump has issued more executive orders—on average, per year—than every president since Jimmy Carter. Overreliance on executive orders can establish new norms of presidential conduct that skirt the normal democratic process. Norm erosion in presidential behavior is not a new phenomenon per se. President Franklin D. Roosevelt was the first president to serve more than two terms, breaking with tradition that was first established by George Washington. Several years later, Congress would eventually pass the Twenty-Second Amendment, formally restricting presidents to two terms, as a response to Roosevelt’s breaking of the presidential tradition. The degradation of presidential norms becomes insidious, though, when a supposed national security threat can be declared a national emergency without any check on this power.
Following a newly established precedent, future presidents may continue leveraging the full extent of executive authority in their use of the military to address virtually any “threat.” Under the current national security architecture this is completely legal. Senator Marco Rubio recently described the slippery slope of over-securitizing threats, stating, “If today the national emergency is border security, tomorrow the national emergency might be climate change.” This is already within the realm of possibility given that a 2014 Department of Defense report noted that climate change is a future trend “that will impact our national security.”
A Crisis or Not?
The president’s use of active-duty troops on the US southern border is entirely legal—despite contradictory public narratives—and within the scope of the executive authorities bestowed on the president. The issue is not that President Trump is breaking laws in his use of the military on the border; rather, he is leveraging executive authority more than any president in the post–Cold War era to accomplish his intent, albeit in a way inconsistent with tradition. It is the departure from established norms and values in his use of the military, not a violation of law, which draws attention. The fact is, the twenty-first-century national security architecture begs modernization. Dated vestiges of defense policy and law, rooted mostly in nineteenth-century tradition and precedent, still influence the application of military power today.
Until 2016, constitutional relics such as the 1878 Posse Comitatus Act and the 1807 Insurrection Act laid in hide, rarely stepping into the mainstream narrative. For hundreds of years, US presidents followed normative traditions in their use of the military on domestic soil, reserving domestic military troop deployments for the most dire of circumstances.
Owing to the Posse Comitatus Act, presidents generally resisted deploying active-duty forces within the United States and adhered to past precedent (e.g., allowing governors to mobilize guard units). For instance, the perceived slow response of the US military to major riots and natural disasters is more a product of bureaucratic norms and legalistic hurdles than a lack of American military readiness to mobilize and respond. Norms of restraint, if you will, established a seldom-use paradigm for the military domestically, essentially codifying it into unwritten tradition of presidential behavior. But tradition alone provides insufficient grounds for deterring a particularly motivated president intent on delivering on a campaign promise.
Despite the availability of legal yet seldom-used authorities to bypass Posse Comitatus Act restrictions and deploy troops domestically, past presidents rarely invoked them. For example, since 1952 there have only been twelve incidents (excluding overseas contingency support) of a president mobilizing the National Guard under federal authority to respond to a serious domestic event. Compared to federalizing the National Guard, deployments of federal troops under an invocation of the Insurrection Act were even rarer in the twentieth century. The 1992 Los Angeles riots were the last time that the Insurrection Act was formally invoked. Even then, federal troops deployed to the Los Angeles area remained in a behind-the-scenes support role and did not participate in the suppression of violence. Despite considerations of invoking the Insurrection Act immediately after 9/11 and then again in the wake of Hurricane Katrina, President George W. Bush resisted. To date, no such invocation of the Insurrection Act or federalization of the National Guard for domestic response has occurred in the twenty-first century.
In his first two years in office, President Trump has, repeatedly, threatened to “send in the Feds,” a certain indication of his willingness to use federal resources—like the military—to deal with local and state problems. The perceived porosity of the US southern border and the president’s fervent campaign promise to secure it have only furthered this rhetoric. In the early stages of the Trump presidency, most critics, the media, and members of Congress dismissed these comments as improbable, impractical, and impermissible. As the border security issue generated greater media attention in mid- to late 2018, and as the president’s narrative expanded, the same critics, media personalities, and members of Congress started to pay more attention.
What was once considered improbable, impractical, and impermissible has quickly risen to the precipice of probable and permissible (if still not all that practical, depending on one’s perspective). President Trump’s insistence on securing the southern border and the continued fight to secure funding for a border wall may present the first such invocation of the Insurrection Act or federal domestic mobilization of the National Guard this century. Absent legislative changes by Congress, it is within the purview of executive authority to bypass the restrictions of the Posse Comitatus Act and deploy troops within the United States. Yet, sections of the Insurrection Act alone are not the only authority the president can rely on to secure the border—or anything else a president might deem an existential threat.
With border security funding battles raging in Congress, President Trump now appears primed to declare a national emergency. Such declarations are traditionally reserved for existential crises when the power and capacity of local and state governments is overwhelmed or insufficient to deal with the situation at hand. The problem is that—unlike the constitutions of other Western countries, which specify the mechanics of emergency declarations—there are no constitutional provisions outlining the process, requirements, or qualifying circumstances for such a declaration in the United States. Per 50 US Code § 1631, the president can declare a national emergency by executive order, which “specifies the provisions of law under which he proposes that he, or other officers will act.” In other words, the president can declare a national emergency at his discretion, and with few exceptions, can also determine which laws will be used to justify emergency action, albeit with substantial political risk. Given the relative ambiguity of numerous laws, presidential authority widens a great deal under such circumstances.
Such political risk has generally served as a sufficient deterrent to past presidents and ensured compliance with conventional norms of the office. However, the ambiguities of existing law and the absence of formal emergency powers legislation, ironically, create an unrestricted framework ripe for manipulation by a president willing to disregard those norms and accept the political risk. The lack of clearly defined legislative restrictions on emergency powers creates a threat in and of itself; a threat that, arguably, most elected officials have not in the past considered a likely scenario. This presents various dangers to civil-military relations, given that a president might theoretically choose not just to deploy troops to guard the border but, say, to send tanks and Apache helicopters to fight gang violence, all under the guise of a “national emergency.” Without laws in place restraining this, there is little left to the imagination of how the US military might legally be deployed in the future.
A Way Forward: Congress Needs a New, Twenty-First-Century National Security Architecture
The 9/11 attacks and subsequent Global War on Terrorism were critical junctures for civil-military relations. Set on this new path, there has been an erosion of anti-militarism principles that our Founding Fathers ascribed to, all because of threat inflation. It extends to the resulting militarization of traditionally non-military problems that Charles Dunlap warned us of in 1992 and Rosa Brooks again reminded us of in 2016. Critics of the president argue that treating the current border situation as a national crisis defies reality and empirics, as US border crossings are at their lowest in seven years. Others believe that this a real crisis presenting a legitimate threat to national sovereignty. For the president, a seven-year low in border crossings is only a relative value to the number of crossings that was already crisis seven years ago. In that context, anything above zero only contributes to the problem. Regardless of perspective, the central issue here is the president’s use of executive privilege to legally bypass normative checks and balances. The system has been largely stable because presidents have historically been concerned with their political futures and legacies, and thus unwilling to depart from tradition.
Expanded use of executive privilege, leveraging archaic laws for modern military force application, ballooning funding, and the rise of ad hoc military operations in the periphery have given way to a new defense paradigm. It is propelled by the inertia of a seemingly unstoppable system that has—in recent years—outpaced legislative revision. As a result, there is a rising challenge to normative civil-military relations in the twenty-first century. Congress can combat this disease by revising and modernizing the national security legal architecture, which would prevent America’s most trusted institution—the military—from being politicized.
New congressional legislation that checks and balances executive powers is a necessary precondition for the success of the US military in the twenty-first century. Threats to the US homeland and American military capabilities are vastly different now compared to the nineteenth century, which means much-needed reform is vital. Creating a Posse Comitatus Act version 2.0 is in order. Explicitly ascribing what the president can and cannot do with the military domestically would ensure that the military remains beyond the fray of politicized threat assessments.
The views expressed are those of the authors and do not reflect the official position of the United States Military Academy, Department of the Army, Department of Defense, or any organization or institution with which the authors are affiliated.
Image credit: Robert Bushell, US Customs and Border Protection Office of Public Affairs
You make a good argument about the military use and it's possible complications. But being so incorrect in framing the argument makes those reading question that argument as being disingenuous.
Being afraid to hike the southern section of the Arizona Trail because of Coyotes with AK's isn't a perception. It's a fact that we see when hiking and hunting in Arizona. We see the illegals carrying drug bundles and the armed Coyotes escorting them. Those same Coyotes put a finger to their mouths in a, "Shhhh" gesture. You violate those Coyote's orders at the risk to your life. Chose to use the phone at that time will get you shot at. Those groups carrying drugs were not just on the border but up to 30 miles north.
Murdered ranchers where all indications from law enforcement point to the same Coyotes. Murdered law enforcement officer killed by illegals using arms supplied by the U.S. government. I mean if we read that in a book we'd laugh at it being an unbelievable fiction. Yet here we are.
The U.S. Government was even nice enough to put up danger signs along the border advising of the danger. How very American of them to abdicate their responsibility.
An opioid crisis where a large percentage now comes from across the, "perceived" porous border instead of from illegal prescriptions. All law enforcement indications are many of the drugs originate in China.
The border is dangerous. The stats on crossings you cite are in direct contradiction to what border patrol officers will advise you and of other stats matching the officer's assessments. Cherry picking stats during the winter season and/or during a recession is again disingenuous at best. Some of those using those stats are outright lying.
Of course that is only half the problem. Have you ever wondered why illegal immigrants can only do certain jobs(that American's won't) and that legal green card holders cannot? If you took the time to understand how illegals are systematically underpaid by employers who pocket the tax/social security withholding's from their pay, one would understand that a certain class of employers in this country are systematically using economic slaves. They have been doing so for decades.
So is this issue an emergency? Beyond a doubt and in no way deserving of an argument. So when one political class of our nation uses every form of lawfare, politics and outright lies to keep that border open one has to wonder if they are truly that ignorant or if they are actively trying to promote that same economic slavery.
So when our elected leaders not only drag their feet on this issue but actively promote it's continuance it is my not so humble opinion that the military is a perfect institution to fix this emergency. That would still be my opinion even if their use becomes a constitution crisis to break the back of lawfare that so disgustingly is used to continue it.
That fact that President Donald Trump is president goes a long way to show us that how I frame the argument is believed by enough people to make him president. And enough people disagree with how you framed the argument to make all his Republican and Democrat challenger(s) fail.
Presidents come and go. But the, "perceptions" backed up by facts of what we live on the southern border isn't going to go away. In fact, it is getting worse. Sadly it's all to simple to fix, yet the systemic corruption in our government will not allow it.
Build the wall, man the wall, loss of business license for economic slavery with RICO seizure, e-verify for everyone in America and slowly increase the green card holders in this country to revitalize the lifeblood that is this nations immigrant past, present and future.
While the authors are correct in their view that Congress needs to reassert its powers to depoliticize the use of the military at our Southern borders, I do not think they make a compelling case for Trump's use of executive power to send military forces to our border based on a national emergency. The absolute numbers of people coming to the border is 80% lower than the 1.6 million that were apprehended in 2000. No other president felt the need to declare a national emergency, and in fact, instead of sending troops, our Border Patrol force was more than doubled since 2000. President Trump actually promised to hire 7,500 more Border Patrol agents, yet their numbers remain the same as when he took office. How can we accept the need to use military troops when there has been a failure to increase staffing within the Border Patrol?
Additionally, Trump's proposed solution, building a wall, would not stop people from tunneling or using ladders to get past it. Border Patrol agents have shown photos of many tunnels that have been dug across our border. It is those AGENTS who do the actual work of securing our border, and it is strange that if there has been such a "crisis" at our border, Trump would not have hired more agents. Is it simply incompetence, or is it lack of ACTUAL prioritization?
There is a crisis at the border, but it is a humanitarian one, not a national security crisis. While overall numbers apprehended at the border are still a fraction of their historical high, thousands more families from Central America are seeking asylum. These are the least likely people to commit crime, and in fact THEY are often victims of violence and/or extreme poverty. We definitely need more resources to handle this, case-workers and immigration judges, but a wall will not do anything to solve this problem.
Finally, Senators Graham and Durbin brought Donald Trump a bipartisan immigration bill in January of 2018. He could have HAD a political solution to our immigration issues (and even most of the money for his wall), yet he chose to reject that bill. That was Congress trying to do it's job. For him to cry "National security crisis!" and misuse our military personnel and military budget just because he didn't like what was brought to him, is disingenuous at best and unconstitutional misuse of power at worst.
Normative checks and balances are just that–normative–and nothing more. The law is the law. Right now, immigration law is not being followed. This is the national emergency. The so-called "border crisis" is only one, high-profile manifestation of the emergency.