Trump orders military to plan to ‘seal the borders’

The U.S. military must produce a plan to “seal the borders” under an executive order signed Monday by the new president. But experts suggest that the order may set up a legal challenge that turns on the word “invasion.”

“Unchecked unlawful mass migration and the unimpeded flow of opiates across our borders continue to endanger the safety and security of the American people and encourage further lawlessness,” says the order, entitled “Clarifying the Military’s Role in Protecting the Territorial Integrity of the United States.” 

Explaining the militarization of what the United States has long viewed as a border-patrol and law-enforcement mission, the order casts migrants and drug flows as threats to U.S. "sovereignty" and "territorial integrity." As it happens, migrant flows have plummeted in the past year from record highs in late 2023, according to Customs and Border Patrol data.

Under the 665-word order, the U.S. defense secretary has 10 days to “deliver to the President a revision to the Unified Command Plan that assigns United States Northern Command (USNORTHCOM) the mission to seal the borders...”

NORTHCOM is tasked with “repelling forms of invasion including unlawful mass migration, narcotics trafficking, human smuggling and trafficking, and other criminal activities.”

The word “invasion” is important, and not just because Donald Trump has long used it to characterize migrant flows. The Constitution allows Congress to mobilize “the militia” to “execute the Laws of the Union, suppress Insurrections and repel Invasions.” Lawmakers later delegated this authorization, in the 1807 Insurrection Act, to the U.S. president, who may call out the troops if “any insurrection, domestic violence, unlawful combination, or conspiracy” hinders the execution of state or federal law. 

The order also tasks NORTHCOM with a “campaign planning requirement for USNORTHCOM to provide steady-state southern border security,” suggesting a more permanent mission than past deployments of active-duty troops.

Despite its title, the order leaves many things unclear, said Elizabeth Goitein, senior director of the Brennan Center’s Liberty and National Security Program. 

“It's very tricky to parse such poorly drafted executive orders,” Goitein said. “But one interpretation of this executive order, and in some ways the most natural interpretation, is that the president is invoking his authority as commander-in-chief to essentially deploy the military, not for law enforcement purposes, which is what immigration enforcement actually is, but for a military campaign against people entering the country without documentation.”

This, she noted, would be nothing like earlier border deployments of active-duty troops and National Guard units, which supplied logistical support to the Border Patrol and other law-enforcement agencies.

Goitein said the order might not stand up to legal scrutiny for several reasons, including that “invasion” may not be a legally accurate way to describe the border situation. Although courts are traditionally hesitant to second-guess a president on political questions, she said, the Supreme Court “has in various contexts said … there is a permissible range of honest judgment that a president can overstep. And my sincere hope is that the Supreme Court would not tolerate the president using the rhetorical language of ‘invasion’ to turn immigration enforcement into war.”

In their few decisions on the matter, courts have held that “a large influx of legal or illegal aliens into a state does not constitute an ‘invasion’ under Article IV and that the term invasion connotes armed hostility or military invasion,” law professor Frank Bowman III wrote for Just Security last year.

Emergency declaration

The order followed an earlier one declaring the illegal border crossings a national emergency. 

“Because of the gravity and emergency of this present danger and imminent threat, it is necessary for the Armed Forces to take all appropriate action to assist the Department of Homeland Security in obtaining full operational control of the southern border,” it said.

Under the national-emergency order, the secretaries of defense and homeland security are ordered to do several things, including:

• “immediately take all appropriate action, consistent with law, including 10 U.S.C. 2214, to construct additional physical barriers along the southern border,” 
• “prioritize the impedance and denial of the unauthorized physical entry of aliens across the southern border of the United States,
• And “ensure that use of force policies prioritize the safety and security of Department of Homeland Security personnel and of members of the Armed Forces.”

As well, the defense secretary has 30 days to outline “all actions taken to fulfill the requirements and objectives of this proclamation” and 90 days to submit a report, with the DHS secretary, “about the conditions at the southern border of the United States and any recommendations regarding additional actions that may be necessary to obtain complete operational control of the southern border, including whether to invoke the Insurrection Act of 1807.”