The Trump administration is considering using the National Guard for immigration enforcement, setting up a possible states’ rights showdown.
Appeals court blocks decision on Trump’s control of National Guard
An appeals court has halted a federal judge’s decision to take control of the National Guard away from President Trump and return it to California.
WASHINGTON – The possibility of the Trump administration sending National Guard troops on immigration raids outside their own state could cause a legal clash between states – and with the federal government.
The Pentagon is weighing a request from the Department of Homeland Security to call up 20,000 members of the National Guard under state authority for interior immigration enforcement, which would cost about $3.6 billion per year. These troops, if approved, would be distinct from the 4,000 Guardsmen currently deployed to Los Angeles under presidential orders.
Guard troops under state authority are not subject to laws barring the military from directly participating in civilian law enforcement activities.
The Trump administration, according to CNN, is assessing whether DHS can send requested National Guard troops sourced from red states – such as from Republican Gov. Greg Abbott’s Texas – into blue states like California, where Democratic Gov. Gavin Newsom is unlikely to authorize his troops to support DHS/ICE under state orders. Stephen Miller, the White House’s deputy chief of staff for domestic policy, has previously floated the idea of such deployments.
“You go to the red state governors and you say, ‘Give us your National Guard.’ We will deputize them as immigration enforcement officers,” Miller said in a 2023 podcast interview with conservative activist Charlie Kirk. “If you’re going to go into an unfriendly state like Maryland, when then it will just be Virginia doing the arrest in Maryland.”
Legal experts and former DHS officials who spoke with USA TODAY emphasized the unprecedented nature of such a proposal.
John Sandweg, an attorney who served as ICE’s acting director and as acting general counsel for DHS, said using the Guard for interior enforcement in unwilling states would “push the envelope of the idea of the state militia and National Guard.”
Sandweg said such an arrangement would be “very consistent with everything we’re seeing” from the Trump administration, which relied on an obscure law only used once before (to break a U.S. Postal Service strike in 1970) when Trump overrode Newsom and took control of a significant portion of the California National Guard. The DHS request, if filled, would also radically depart from the Guard’s historical role in immigration enforcement, which has been limited to border security under every administration since that of former President George W. Bush.
The White House referred USA TODAY to DHS, which did not immediately respond to an inquiry. The Pentagon did not respond to a query from USA TODAY.
“We very much support President Trump’s focus on defending the homeland on our southern border, as well as supporting law enforcement officials doing their job in ICE in Los Angeles,” Defense Secretary Pete Hegseth said at a June 11 Senate Armed Services Committee hearing.
Return of ICE partnership program
The DHS proposal called for the 20,000 National Guard troops operating under what is known as Title 32 authority. In that situation, the federal government picks up the tab but governors retain command authority.
But the request memo, which USA TODAY obtained, specifies that the Guardsmen would then work for ICE through a partnership program known as 287(g).
In recent months, the Trump administration has dramatically increased ICE’s reach through the 287(g) partnership program by reestablishing its “task force” model.
ICE confirmed receipt of questions from USA TODAY regarding the 287(g) program but did not respond before publication.
The 287(g) program, which began in 1996, allows DHS and ICE to delegate immigration enforcement authority to local and state law enforcement agencies, whose officers then receive training from ICE.
The state and local authorities are “deputized to enforce certain aspects of immigration law,” according to Texas A&M law professor Huyen Pham.
Once qualified, participating personnel from local/state agencies with task force agreements can join up with ICE-led immigration enforcement task forces, according to the agency website.
But concerns over racial profiling by partner agencies and relative inefficiency compared with other programs led DHS to terminate all task force agreements during the Obama administration. The Trump administration has rapidly revived the model.
Publicly available ICE data shows that between Inauguration Day and June 12, the administration inked 287(g) task force partnerships with 338 new local and state law enforcement agencies. That includes four states where the National Guard’s state leader has signed an ICE task force agreement: Texas, Florida, Louisiana (via its parent agency, the Louisiana Military Department) and West Virginia.
It’s unclear what specific roles Guard troops from those states play alongside DHS, though Florida Gov. Ron DeSantis included the Florida National Guard in a list of agencies he thanked for their role in an April series of statewide immigration raids.
But whether 287(g) task force participants can operate across state lines is another, legally untested matter.
Joe Maher, who was the top career lawyer in DHS from 2011 to 2024, said interstate use of the authority was “never proposed” during his time with the department.
Pham described the idea as “uncharted territory.”
Although Trump during his first administration deployed red state National Guard troops in state-controlled status into Washington, DC, to quell civil unrest in June 2020, without the consent of local officials, many experts believe there are constitutional problems with federal task forces taking state-controlled Guard members into unwilling states.
But some, including legal scholars from New York University’s Brennan Center, have argued a potential loophole exists unless Congress bans using the National Guard to enforce the law in other states without gubernatorial consent. Citing Alexander Hamilton’s writing in the Federalist Papers, Maher said the framers “didn’t think of having one state’s militia or National Guard … do law enforcement in another state that does not want that to happen.”
The Insurrection Act
One state’s adjutant general, who requested anonymity to discuss future operations, said he believes the administration is unlikely to take National Guard troops into unwilling states unless the Insurrection Act is invoked.
The Insurrection Act allows the president to use active duty troops – including National Guard members federalized under presidential authority, as 4,000 members of the California National Guard currently are – to directly enforce laws without restriction. At that point, state consent largely wouldn’t influence deployment decisions.
Trump directed the Pentagon and DHS to study using the act for immigration enforcement in an executive order signed the first day of his second term. Although he has not invoked the Insurrection Act amid the anti-ICE protests or the ongoing deportation push, Trump said he would consider doing so if ongoing unrest worsened.
Former Rep. Bill Enyart, D-Illinois, a retired two-star general who led the Illinois National Guard, said using the Insurrection Act for a deportation push would be “an overreach by the federal government.”
Enyart, also an attorney, argued that previous invocations of the law to override governors – such as when President John F. Kennedy federalized the Alabama National Guard to enforce racial integration at the University of Alabama – were “defending the civil rights” of the states’ citizens.
“This is pretty clearly a different situation,” Enyart said.
Contributing: Tom Vanden Brook and Francesca Chambers, USA TODAY