Security at the Southern Border - History and Sending the US Military to the Border

What are the most effective and humane strategies to solidify our borders against illegal entry?

First, some background.

March 26, 1790. President George Washington (no party affiliation) signed the Naturalization Act into law. This law laid the groundwork for future US citizenship and immigration laws and reflected the racial and social biases of the time. It excluded Native Americans, indentured servants, enslaved people, free black residents, and Asians from eligibility for naturalization.

March 3, 1875. President Ulysses S. Grant (R) signed the Page Act. The Page Act represented the first ban on immigration into the US. The Page Act banned immigration for three groups: forced labor, felons, and Chinese women due to stereotypes of immorality.

May 6, 1882. President Chester Arthur (R) signed the Chinese Exclusion Act. This law was the first significant law implementing immigration restrictions based on nationality and race in the United States. Though the Page Act banned Chinese women, the Chinese Exclusion Act banned all Chinese laborers for ten years. Congress extended the ban until 1943. 

* A note from the National Archives: “In 2011-2012, Congress condemned the Chinese Exclusion Act and affirmed a commitment to preserve civil rights and constitutional protections for all people: the Senate unanimously passed Senate Resolution 201 in 2011; and the House of Representatives unanimously passed House Resolution 683 in 2012.”

El Paso, Texas. 1904. The first national border patrol agents, a small group of horse-mounted officials called Mounted Guards or Chinese Immigration Agents, began patrolling the US-Mexico border from El Paso to California. The US Border Patrol was born, though not established formally.

January 16, 1919. Nebraska became the 36th state to ratify the 18th Amendment to the US Constitution, banning the production, transport, and sale of alcohol nationwide. Americans refused to comply with the restrictions. As Mexico had no limitations on alcohol, alcohol and drug smuggling dramatically increased from Mexico into Texas.

May 24, 1924. President Calvin Coolidge (R) signed the Immigration Act, also known as the Johnson-Reed Act. The Immigration Act significantly restricted all immigration into the United States. This law established national origin quotas, drastically reducing immigration from Eastern and Southern Europe and virtually excluding immigrants from Asia. The quotas were based on a percentage of each nationality’s population in the US as of the 1890 census and favored immigrants from Western and Northern European countries.

May 28, 1924. President Coolidge signed the Labor Appropriation Act of 1924. This law formally established the US Border Patrol in response to the need for more rigorous control and monitoring of US borders in light of the stricter immigration policies outlined in the Immigration Act.

August 4, 1942. US and Mexican representatives signed a bilateral agreement to create the Bracero Program. In response to labor shortages during World War II, the two countries agreed to temporarily import Mexican agricultural laborers (braceros) into the US for work in agriculture and railroad maintenance. On July 13, 1951, President Truman (D) signed Public Law 78, formalizing and extending the Bracero Program. Public Law 78 governed Mexican laborers’ transportation, housing, and working conditions, aiming to regulate and protect the workers involved in the program. The Bracero Program ended in 1964.

October 3, 1965. President Lyndon B. Johnson (D) signed the Immigration and Nationality Act of 1965. It aimed to allow “those who can contribute most to this country – to its growth, to its strength, to its spirit” to enter the nation. The act abolished the national origins quota system and focused on reuniting immigrant families and attracting skilled labor to the United States. This law led to major demographic shifts in US immigration.

November 6, 1986. President Ronald Reagan (R) signed the Immigration Reform and Control Act of 1986. This law offered legalization to millions of undocumented immigrants while also implementing measures to strengthen border security and imposing sanctions on employers who hired undocumented workers.

November 25, 2002. President George W. Bush (R) signed the Homeland Security Act of 2002. This law established the Department of Homeland Security. It reorganized various federal agencies to better coordinate efforts for national security and emergency response, especially in the wake of the September 11, 2001, terrorist attacks. The act significantly impacted US immigration and border security policies.

Some keynotes to summarize the above.

Over time, the nation’s immigration policies have trended towards the equal treatment of all attempting to immigrate. The US has not opened its borders to all, but immigration has changed from a skin color-based system to a system intended to attract skilled labor.

Conservatives and progressives alike have offered immigrants the opportunity to move to or stay in America.

There’s another trend in the history. No Congress or President has supported open borders.

Only President Reagan (R) and the 99th Congress of 1986 offered legalization to undocumented immigrants who entered the country illegally. Of that event, Wyoming Senator Alan K. Simpson (R) noted that President Reagan “knew that it was not right for people to be abused,” and “anybody who’s here illegally is going to be abused in some way, either financially [or] physically. They have no rights.”

Presidents and Congress support legal immigration. Over time, immigration has trended towards a merit-based system wherein the nation accepts skilled labor over others. This approach aims to attract individuals who can contribute to the economy and society, aligning immigration policy with national economic and workforce needs. Both legislative actions and executive policies have increasingly emphasized skills, qualifications, and economic contributions as crucial factors in the immigration process.

No President or Congress has supported open borders because undocumented immigration leads to abuse of immigrants and strains community resources, including healthcare, education, and law enforcement. Though undocumented immigrants often take low-wage jobs, contributing to sectors like agriculture and construction, and do pay taxes, the immigrants are not able to benefit from their tax contributions. Illegal immigrants pay sales and property taxes (directly or indirectly through rent). Additionally, many contribute to Social Security through payroll taxes but cannot draw Social Security.

The most significant limitation for undocumented immigrants is that, though they do pay taxes, public resources such as hospitals and government agencies can’t plan and allocate resources due to the undocumented population’s uncertain status and number.

Demand for border crossing and transporting illicit goods into the US, transiting land, air, and sea, is strong. On MeatEater, Inc. podcast Episode 391: Border Patrol, Steve Rinella, and crew hosted US Border Patrol officials Richard J. Fortunato, Charles Trust II, and James Searl to discuss border security. They share a fascinating discussion of U.S. Customs and Border Protection law enforcement activities and highlight that if the incentive to transport goods and people is high enough, smugglers will push the envelope to find ways to move goods.

Now to the crux of the matter. 

What are the most effective and humane strategies to solidify our borders against illegal entry?

First consideration: Send troops to the border for law enforcement.

Many presidential candidates preach they will send troops to secure the border. With exceptions including border disputes such as during the 1846-1848 Mexican-American War, the 1835-1836 Texas Revolution, and the 1910-1920 Mexican Revolution, no sitting US president has deployed significant military forces to the border. 

And for good reason. Once we establish national borders, border security no longer represents a military conflict. It legally becomes a law enforcement activity, and US military forces have law enforcement limitations inside the United States. Four sections of US Code apply to military operations and the southern border.

The first significant limitation to military forces performing a law enforcement function inside the United States lies in US Code Title 18, Subsection 1385 - Use of Army, Navy, Marine Corps, Air Force, and Space Force as posse comitatus:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army, the Navy, the Marine Corps, the Air Force, or the Space 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.

Title 18 § 1385 first came into law as the Posse Comitatus Act. On June 18, 1878, President Rutherford B. Hayes (R) signed this act into law, prohibiting the use of military forces for law enforcement unless explicitly authorized by Congress. This act is now the cornerstone of utilizing military troops in domestic law enforcement activities on US soil.

The second area applicable to a president attempting to use military forces to support border law enforcement is US Code Title 10. US Code Title 10 governs the organization and conduct of military forces. This section of US law both indirectly and directly impacts border activities. 

Indirectly, Title 10 limits law enforcement activities by the military. It outlines that the military’s involvement in law enforcement is supportive and will not infringe on the responsibilities of civilian law enforcement agencies. Military forces may support civilian law enforcement but will not directly perform civilian law enforcement activities. Under Title 10, the military may provide logistical assistance, technical support, and surveillance.

Directly, Title 10 § 275 restricts direct participation by military personnel in law enforcement activities, such as search, seizure, arrest, or other similar activities, unless authorized by law. These are law enforcement activities and are not appropriate for military members. 

Title 10 places another direct limitation on a president who would send troops to the border. Military members serve in one of three components: the Active Duty component, the Reserves, and the National Guard. Active Duty and Reserves components operate under Title 10 authority for all activities. However, the National Guard may operate under Title 10 or Title 32. 

Under Title 10, National Guard members are federally funded and under federal command, typically for missions outside their home state or federal missions outside or inside the United States. In this status, they are subject to the president’s orders and integrated into the regular armed forces.

Under Title 32, National Guard members remain under the command of their state governor but can receive federal pay and benefits. This status is employed for domestic missions within the member’s home state, such as disaster response or civil disturbance control.

When a president activates a National Guard member for a federal mission, such as a wartime mission, that member falls under Title 10 authority. When a state governor directs a National Guard member for a state mission, the member falls under Title 32 authority. This distinction is important because, without Congressional authorization, a president cannot activate forces for a federal mission and then give those forces to a state governor for direction. If there is no federal wartime mission at the southern border, National Guard members supporting border operations fall under the command of the governor of those states, not the president. 

Our final US Code limitation on military members supporting border operations falls in US Code Title 50, Subsection 1809. US military forces are generally restricted from collecting intelligence against US citizens due to legal and constitutional protections. Provisions of Title 50 and the related Foreign Intelligence Surveillance Act guide defense agencies in heavily scrutinizing intelligence collection against US citizens. Some foreign actors engage in illicit activities on the border, and some US citizens engage in illegal activities. Under certain conditions, such as drug trafficking, defense officials may permit intelligence collection against US persons. 

What are the most effective and humane strategies to solidify our borders against illegal entry?

We have a long history of attempting to navigate the complex issue of immigration and border security. President Washington signed a law guiding naturalization and immigration, and we are still dealing with the issue today.

Our first option to address security at the border, sending the US military to act against smugglers and illegal immigrants, doesn’t seem very tenable for both legal and practical reasons.

More options next week exploring technological, legal, and humanitarian strategies. I look forward to you joining me.

May God bless the United States of America.