Is it against the law for Trump to use the military to deport illegal migrants? Maybe not

Critics of President-elect Trump’s plan to enlist the military to help deport illegal immigrants claim it will violate the Posse Comitatus Act of 1878. But that might not be the case.

The 146-year-old PCA says that “except [as] expressly authorized by the Constitution or Act of Congress,” whoever “willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space Force as a posse comitatus … to execute the laws shall be fined … or imprisoned.”

At least one federal court has ruled that the PCA “makes unlawful the use of federal military troops in an active role of direct law enforcement by civil law enforcement officers.”

But the Supreme Court has never so concluded, and this conventional wisdom may very well be wrong.

The PCA itself is of questionable morality, as the motivation behind its passing was Southern anger following the Civil War over the use of federal troops to protect freed slaves from racist violence.

Further, Congress never intended the PCA to inhibit the president’s ability to utilize the military. Rather, it was designed to overturn the “Cushing Doctrine” — devised in 1854 by Attorney General Caleb Cushing to allow a marshal or sheriff to call for military forces who would be “bound to obey [his] commands.”

Indeed, in 1882, the Senate Judiciary Committee interpreted the PCA as negating any supposed authority of federal marshals to “call upon the Army,” “have command of the Army” and “direct [it] what to do.”

And 120 years later, Congress explained why the Department of Homeland Security did not violate the Act by saying that it was “expressly intended to prevent [U.S.] Marshals, on their own initiative, from calling on the Army for assistance in enforcing Federal law.”

As Coast Guard officers Gary Felicetti and John Luce have explained, “the primary evil” addressed by the PCA was “the loss of control over army troops via the Cushing Doctrine,” which “permit[ed] minor, unelected civilian officials to control parts of the standing army.”

Despite Congress’s intent, some federal courts seem to believe that the PCA applies to the president as well as to minor civilian officials.

But this might make the PCA itself unconstitutional.

As President Dwight Eisenhower’s attorney general concluded, there are “grave doubts as to the authority of the Congress to limit the constitutional powers of the President to enforce the laws and preserve the peace under circumstances which he deems appropriate.”

Congress already has expressly authorized the military’s ability to directly participate in civilian law enforcement in certain circumstances.

As Congress proclaimed two decades ago, 1807’s “Insurrection Act” and other laws “grant the President broad powers that may be invoked in the event of domestic emergencies … specifically authoriz[ing] the President to use the Armed Forces to help restore public order.”

The Insurrection Act provides that “The President, by using the militia or the armed forces … shall take such measures as he considers necessary to suppress … any insurrection, domestic violence, unlawful combination, or conspiracy … [that] opposes or obstructs the execution of the laws of the [U.S.]”, and that “Whenever the President considers that unlawful obstructions, combinations, or assemblages … make it impracticable to enforce the laws of the [U.S.] … by the ordinary course of judicial proceedings, he may … use such of the armed forces, as he considers necessary to enforce those laws.”

Presidents have relied on the Insurrection Act on a fair number of occasions, including to protect aliens themselves.

President Grover Cleveland used the Act in 1885 and 1886 in order to deploy troops to protect Chinese miners during deadly anti-Chinese riots.

It would certainly be a novel use of the Insurrection Act to allow the military to directly participate in “mass” deportation efforts.

Indeed, President Eisenhower apparently declined to use the military to assist with his large-scale deportation efforts because of PCA concerns.

Yet a powerful case can be made that our immigration crisis justifies the Insurrection Act.

As the House-passed articles of impeachment against DHS Secretary Alejandro Mayorkas spelled out, the mass illegal immigration resulting from his “willful and systemic refusal to comply with the law has had calamitous consequences for the Nation and the people of the [U.S.].”

The key question is whether the Trump administration can convince federal courts that criminal cartel driven mass illegal immigration fits within the Insurrection Act’s categories of insurrection, domestic violence, conspiracy, or unlawful combination, obstruction or assemblage.

If so, the cavalry is coming.

George Fishman is senior legal fellow at the Center for Immigration Studies.