Even the National Guard won’t be enough to solve border crisis when Title 42 ends

We need to look beyond the current legal arguments over whether or not the Biden administration can — or should — terminate Title 42 order, which requires U.S. Customs and Border Protection (CBP) to process undocumented land border crossers promptly without asylum screening or other Title 8 immigration processes — and then to expel them back to the country they came from through the closest port of entry.

The simple fact is the Title 42 order — instituted in 2020 as part of the previous administration’s pandemic response — will be terminated eventually.

What then?

Nearly 2 million migrants have been expelled under the order since it was implemented, and all indications are that the Biden administration is entirely unprepared for what will happen when the order ends.

Brief background

The Biden administration announced that expulsions under the order would stop at the end of May; several states sued, and a federal district court judge issued a preliminary injunction ordering the Biden administration to hold off.

The judge issued the injunction because he thought the states had established a substantial likelihood of success with their claim that the administration’s termination did not comply with the Administrative Procedure Act’s (APA) rulemaking requirements.

The administration has appealed — but it doesn’t have to reverse the judge’s injunction to be able to terminate the order: It could just start over with a new termination using the judge’s decision as guidance on how to comply with the APA requirements.

The administration may be stalling because it hasn’t figured out how to deal with the flood of illegal crossings that will almost certainly occur when the order is terminated. 

Two problems

National Border Patrol Council President Brandon Judd has expressed concern that termination of the Title 42 order will open the floodgates to illegal immigration. Border patrol resources are stretched when 3,500 illegal crossers a day are apprehended. When the total reaches 5,000 the border patrol’s resources are overwhelmed.

The administration is expecting up to 18,000 a day.

That isn’t the only problem.

According to Chris Cabrera, a National Border Patrol Council vice president, drug smugglers use the migrant groups that make illegal crossings to distract agents. When border patrol officers are taken from their patrol duties to process illegal crossers, the border sections they are abandoning are unprotected.  

Many agents are starting their days at processing stations, hospitals, or in transportation details instead of out on patrol.

“So from the beginning of our 10-hour shift we already lost half our manpower,” Cabrera said. “One or two hours in we lose another 10 percent. By the end of our shift, we’re down to maybe 30 percent out on the field.”

Former presidents have used National Guard troops to fill gaps on the border when the border patrol has been overwhelmed. George W. Bush deployed roughly 6,000 National Guard troops to the border; Barack Obama sent about 1,200, and Donald Trump sent around 2,500. But there are limits on how a president can use soldiers at the border.

Posse Comitatus Act

The Posse Comitatus Act, which was enacted on June 18, 1878, restricts what presidents can do on the border with military forces. It consists of a single sentence. The current, amended version, states that:

“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.” (Emphasis added.)

The National Guard isn’t mentioned, but when its troops are operating under federal command and control it is considered to be part of the Army or the Air Force.

The Constitution does not provide authority for the president to use soldiers as a police force, but Congress has established statutory exceptions to the Posse Comitatus Act. The most important ones are in the Insurrection Act:

• Section 251 of this Act permits the president to deploy military forces in the United States if a state requests federal aid to suppress an insur­rec­tion.

• Section 252 permits deploy­ment in order to “enforce the laws” of the United States or to “suppress rebel­lion” whenever “unlaw­ful obstruc­tions, combin­a­tions, or assemblages, or rebel­lion” make it “imprac­tic­able” to enforce federal law in a state by the “ordin­ary course of judi­cial proceed­ings.”

• Section 253 has two parts. The first allows the pres­id­ent to use the milit­ary in a state to suppress “any insur­rec­tion, domestic viol­ence, unlaw­ful combin­a­tion, or conspir­acy” that “so hinders the execu­tion of the laws” that any portion of the state’s inhab­it­ants are deprived of a consti­tu­tional right and state author­it­ies are unable or unwill­ing to protect that right. The second permits the pres­id­ent to deploy troops to suppress “any insur­rec­tion, domestic viol­ence, unlaw­ful combin­a­tion, or conspir­acy” in a state that “opposes or obstructs the execu­tion of the laws of the United States or impedes the course of justice under those laws.”

When Trump sent National Guard troops to the border, their mission was to assist border agents with logistics, administrative duties, surveillance, and intelligence analysis, as well as to provide aerial and mechanical support.

This type of assistance is permitted by the Posse Comitatus Act, and it frees border patrol officers from performing those tasks — which makes them available to do patrol work at the border. But even this would unlikely be enough when Title 42 ends. 

CBP had more than 1.6 million encounters with illegal crossers in fiscal 2021, which is more than quadruple the number of the prior fiscal year and the highest annual total on record.

It has already had 1.2 million encounters in the first seven months of fiscal 2022 — and the number of encounters will likely get much higher after Title 42 is terminated.

Realistically, the only way to deal with this situation is to reduce the number of illegal crossers — but this administration has been going in the other direction, with immigration policies that encourage illegal immigration.

The latest example is its new rule which permits asylum officers to grant asylum applications at the border in non-adversarial asylum merits interviews. The asylum applicants can be represented by counsel at the interviews, but government attorneys are excluded. The absence of scrutiny by a government attorney will make it easier for migrants with fraudulent or otherwise meritless persecution claims to get asylum, which will offer further encouragement to migrants to attempt to cross.

The legal wrangling over ending Title 42 expulsions is simply delaying the inevitable, for which the Biden administration is not prepared — and the administration’s other policies on immigration are poised to make an already bad situation much, much worse.

And that’s something even the National Guard can’t fix.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.  Follow him at https://nolanrappaport.blogspot.com