The ‘Trump card’: Using the Insurrection Act at the border

The Insurrection Act will be here before the 2020 election. If the immigration debate with Congress were like a strategic poker game, this would be President Trump’s “ace in the hole” for winning immigration poker — the “Trump card,” if you will. Trump considers himself a winner and a fixer, and likely believes the Insurrection Act will fix military border mission ambiguity and help him win the ongoing immigration battle, two issues long plaguing his administration.

The border situation is heating up. In a generally unreported incident in the early morning hours on May 29, a U.S. Marine stationed at a “mobile surveillance camera site” in El Centro, Calif., near the U.S.-Mexico border said he was attacked by three individuals and fired his weapon in self-defense. U.S. Northern Command (NORTHCOM) officials confirmed the Marine discharged his weapon but withheld further comment pending an investigation.

Speculation aside, this is the second known military confrontation along the southwest border in the past two months. With 2,100 active duty troops involved in the border support mission and migrant apprehensions increasing, it is only a matter of time before an incident turns deadly. Despite Acting Secretary of Defense Patrick Shanahan’s assertion that the Department of Defense (DOD) “will not be politicized,” DOD soon is likely to find itself squarely in the crosshairs of a heated political and legal debate.

Even with the recent border confrontations, Shanahan claims the military’s role on the border is a “mission of monitoring, surveilling and detection.” However, surveillance remains a prohibited domestic law enforcement function for DOD personnel, though detection and monitoring are permissible as part of Defense Support of Civil Authorities (DSCA) missions such as the border support effort.

Under DSCA guidance, DOD personnel can “operate and maintain equipment” for detection and monitoring of surface traffic with some limitations. DSCA guidance further states that “weapons will not be carried during DSCA operations,” except for self-defense situations when there is a “threat of possible harm.” But the NORTHCOM commander says there is no military threat at the border. So we should conclude that our troops are safe at the border, right? How, then, do we reconcile that troops are serving at “mobile surveillance camera sites,” setting up “hasty observation posts,” and carrying weapons while serving in a DSCA capacity that, at least on paper, prohibits all of these activities?

U.S. troops serving in remote locations on the border should carry their weapons and maintain the opportunity to defend themselves, provided such defense is consistent with the rules for the use of force. The issue is not one of military action but, rather, inconsistent and contradictory messaging. DOD continues to shroud the mission in misleading descriptions to appease the public discourse. However, if Trump invokes the Insurrection Act, military activities at the border that were questionably legal before would be legal, relieving DOD of its continued explanatory appeasement efforts.

The Insurrection Act is a series of laws that permits the president to, among other things, federalize the National Guard and use the Armed Forces to enforce laws and suppress rebellion when he considers enforcement otherwise impractical through normal proceedings. Though it has been considered for other situations since, the last formal invocation of the Insurrection Act occurred during the 1992 Los Angeles riots. Continued overcrowding at detention facilities, increasing apprehensions beyond border patrol capacity, and violent border confrontations produce precisely the impractical enforcement situations required to justify invoking the Insurrection Act, clarify the mission ambiguity, and ultimately gain control of the immigration system through mass military-enforced deportation efforts. Such an approach is unprecedented and will be met with challenge, yet is entirely legal.

The Insurrection Act appears to be an inevitability. The Trump administration recently hinted at the likelihood of invoking it for mass deportation. It is both predictable and legal, albeit unprecedented in the past quarter-century. To the critics doubting the president’s doggedness, normative departures are commonplace in the Trump presidency. The Insurrection Act is the logical next step in Trump’s continued efforts to “protect the homeland and restore our sovereignty.”

Knowing when to play this “Trump card” is a test of the administration’s political savvy. Will they reserve it as a diversionary tactic to distract from potential impeachment proceedings? Or will the administration use it to galvanize the president’s base approaching the 2020 election? Regardless, it is not a matter of if, but a matter of when.

Ryan P. Burke, Ph.D., is an associate professor of military and strategic studies at the U.S. Air Force Academy and a former Marine Corps officer. The views expressed here are his and do not reflect the official position of the United States Air Force Academy, Department of the Air Force, or Department of Defense.