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Trump’s Military Deployment to the U.S.-Mexico Border Is Illegal

Texas Military Department / CC BY-ND 2.0

Donald Trump’s decision to send thousands of troops to the U.S.-Mexican border to intercept migrants who intend to apply for asylum is not just a bald-faced political stunt — it is also illegal.

Passed in 1878 to end the use of federal troops in overseeing elections in the post–Civil War South, the Posse Comitatus Act forbids the use of the military to enforce domestic U.S. laws, including immigration laws. For this reason, Trump’s decision to deploy the military to the border to enforce US immigration law against thousands of desperate migrants from Central America — who have undertaken the perilous journey over 1,000 miles through Mexico to the US border in order to apply for asylum — is an unlawful order.

Kathleen Gilberd, executive director of the National Lawyers Guild’s Military Law Task Force, told Truthout, “The deployment of US troops to the Southern border is an illegitimate political ploy and a serious misuse of the military. This action casts shame on a government that treats refugees seeking asylum as enemies.”

The illegality of Trump’s order to the military opens the door to the possibility that service members will resist it: Under the Uniform Code of Military Justice, Nuremberg Principles and Army Field Manuals, service members have a duty to obey lawful orders and a duty to disobey unlawful orders.

Before the midterm elections, pandering to his nativist base, Trump began the deployment of 5,200 active duty troops to Texas, California and Arizona at the southern US border, with the promise of nearly 10,000 more. On October 29, describing the impending arrival of migrants seeking asylum as an “invasion,” Trump tweeted, “This is an invasion of our Country and our Military is waiting for you!”

Marjorie Cohn / Truthout
Marjorie Cohn
Contributor
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law and a former president of the National Lawyers Guild. She wrote "Cowboy Republic: Six Ways the Bush Gang Has Defied the Law," co-authored …
Marjorie Cohn

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