What Are the President’s Emergency Immigration Powers?

Article author: 
Dan Cadman
Article publisher: 
Center for Immigration Studies
Article date: 
10 November 2018
Article category: 
National News
Article Body: 


Law Enforcement Powers

With the presence of active duty military troops on the border, the inevitable question arises as to whether they are proscribed from engaging in law enforcement functions as suggested by the Posse Comitatus Act, as well as the use of force.2 The president has so far assigned to the military support roles that do not anticipate engaging in enforcement or arrest functions, but posse comitatus prohibitions are not so clear as one may suppose regarding whether or not the military could engage in additional, more active functions. The reason is that the military's primary duty is to protect and defend America.
In the modern age, we have come to accept that, in efforts to protect us from harm at home, the armed forces have extended their outer perimeter of operations all over the globe, but there is some reason to question a position that asserts that, as a nation, we've reached the point that our military may act everywhere except in direct protection of our borders. If one accepts the ineluctable logic that the end goal of the Defense Department is to defend our borders, then use of the military even in an active role would not be a violation of posse comitatus, because in this role it is not engaging in civil law enforcement, per se.
Conceived in this context, then, the argument becomes one of exactly when and under what circumstances should the military be activated to protect and defend the nation. In other words, at what point is a caravan, or several caravans, or a mass migration incident of sufficient gravity as to require direct and active intervention?
But this is a hypothetical argument that need not be reached at this juncture. And perhaps it will never need to be reached, if the federal government shows the resolve needed to halt the flows of migrants who use systemic structures like these caravans, which have clearly been organized in a determined effort to undermine the nation's immigration control and border security infrastructure....

Deployment of Other Federal Officers

The president can assign as many federal law enforcement personnel as he chooses, en masse, to be temporarily assigned to border security duties. These could vary from Deputy U.S. Marshals and Drug Enforcement Administration agents, to the Federal Protective Service, or Fish & Wildlife and Bureau of Land Management agents, or virtually any other federal police organization. There, they would reinforce available Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) agents. It can be done through the simple expedient of "deputizing" these agents and officers to act as U.S. Marshals for the duration of their service.3
Special deputation for emergency purposes has been used before — for instance, when federal agents and officers from a variety of agencies (including the Border Patrol and the now-defunct Immigration and Naturalization Service) were assigned by President Eisenhower to join the Marshals Service in enforcing school desegregation orders in Little Rock, Ark. The advantage of special deputation is that, by statute, U.S. Marshals enjoy expansive power to enforce all federal laws — and, surprisingly, state statutes as well....
Closing the Border
When one speaks of "closing the border", it potentially means not only the land borders north and south, but also the sea and air ports of entry. However, in the context of the migrant caravans, we are discussing the southern land border. There is ample reason to believe that the president can, in his authority, close the border or any portion of it that he deems necessary. It's been done before. To name just two examples:
    After the assassination of John Kennedy; and
    When DEA agent Enrique "Kiki" Camarena was murdered in Mexico.
In the immediate aftermath of 9/11, inbound international flights were temporarily diverted to other nations and not permitted to land — they were, in fact, escorted away by U.S. military aircraft scrambled as the government reacted to the attacks — and although the border was not per se closed, virtually all individuals arriving at ports of entry found their documents, and their possessions, baggage, and vehicles, subject to intense scrutiny and themselves often subjected to lengthy and detailed secondary inspections.
The legal justification for these actions can be found at Section 215 of the INA...
International law, as Embedded in the UN Convention and Protocol Relating to the Status of Refugees
Contrary to popular belief, there is ample basis within the United Nations (UN) Convention and Protocol Relating to the Status of Refugees (CPRSR)15 to find that rejecting, denying, or suspending requests for asylum is lawful for signatory nations when they deem it necessary on the grounds of public safety and national security.16 Such a view begins with the right of a nation to self-defense and preservation, which is a core principle of the UN charter.
This key principle resonates throughout the CPRSR and its accompanying documents, known as the Travaux Preparatoires....