The military is not authorized to conduct 'mass deportations'

In April of 1992, I was both a 1L in law school (my first semester) and a young 2LT (or Second Lieutenant) in the California National Guard. Unlike almost all of my classmates who were busy studying for their finals, I was called up for 2+ weeks to establish order and civility again in Los Angeles because of the Rodney King Riots - a reaction to a surprising criminal verdict against four Los Angeles Police officers. Some 32 years later, a debate is ensuing over the prospective use of the military in carrying out a policy of "mass deportations." Whereas in 1992, we were seen as a calming force to restore peace in our city after several tumultuous days. The debate over the military carrying out the core function of a decidedly non-military agency is likely to be more fraught.

Presidential authority is derived from Article II of the United States Constitution. The first sentence of Section 2 states the following "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States." Yet such a broad designation of a title does not confer automatic Presidential authority to do whatever they desire; with the military they command. Throughout my career, a constant phrase that I heard, echoed in wartime or peacetime, be it Lieutenant Colonel commanders or General Officer commanders, was the following: "What are my authorities?" What they meant is where is the specific statutory language that Congress granted me to do what I intend to do? Such a germane question is not solely for the military commander. It is just as relevant for the President. For example, the President does not have the authority to declare war with the military they command. That power lies with the Congress in Article I, Section 8, which states "The Congress shall have Power... To declare War." In fact, a review of Article I demonstrates a laundry list of the powers that our founders gave to Congress. There is a scant list for the President in Article II.

On the specific issue of deportation of those who are here illegally, Congress has given such authority to a specific executive branch agency, commonly known as ICE or U.S. Immigration and Customs Enforcement to execute deportations through the Department of Homeland Security and not the Department of Defense. They have a budget, staff, and authority to carry out such laws and have done so for decades under the administration of both parties. The discussion around using the military for "mass deportations" stems from the unprecedented scale proposed by the incoming administration, which would exceed ICE's capacity to handle. Estimates suggest at least 11 million people are in the U.S. unlawfully, with many overstaying visas (usually 180 days) rather than crossing the border illegally--despite rhetoric, the majority are not border crossers.

Using the military for such an audacious plan seems logical, given its unmatched transportation, logistical, and personnel resources to establish detention facilities and facilitate the deportation process, including transport to home countries. The military has the capability to conduct raids, whereas other federal agencies don't. If such a decision is made, the first question will inevitably be: "What are my authorities?"--and that's where the discussion becomes problematic.

Throughout this debate, the term "a Presidential Emergency Declaration" has been tossed out. Yet, again, the President lacks Constitutional authority to "declare an emergency." Any such authority to declare an Emergency must come from Congress via legislation.

For example, my LA Riots call-up was first by the Governor of California, but then we were transferred to Federal Authority under the Title 10 Sections 251-255 of the United States Code. This law allows "...for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions" under the Insurrection Act. But the law does not exist in a vacuum. It coincides with the Posse Comitatus Act, which has been around since the 19^th Century. The PCA contains one sentence: "Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both." The PCA, passed after the Civil War, is a specific prohibition on the use of the military in enforcing the law.

Some have pointed to a 1798 law, the Alien Enemies Act, as providing authority for the military to execute the deportation of aliens from this country. That argument is also misplaced. This law gives the President the power to deport unnaturalized aliens who happen to hail from a country where a declared war exists between the United States and said country. It has been used three times in our history. Not since 1941 has a declaration of war existed between the United States and any country, and none exists now. There will be significant legal and institutional pushback (including from Republicans) if the military is used to carry out "mass deportations." When the Government executed a large deportation operation under President Eisenhower (a former General Officer), he was also rebuffed from using the military.

Allan Dollison is a retired Army Reserve Colonel, branched Civil Affairs, and has been practicing law for 29 years. His career includes serving as a prosecutor in Humboldt County and as the Public Defender for Amador County. A combat veteran of Afghanistan, Iraq, and Saudi Arabia, he now is in private practice in Los Angeles.