After the latest scuffle between the media and the Trump Administration over a memo drafted by Secretary of Homeland Security, John Kelly, which allegedly called for as much as 100,000 national guard troops to be deployed to arrest illegal immigrants, moments ago the AP released the leaked memo titled "Implementing the President's Border Security and Immigration Enforcement Improvements Policies", to the general public.
The memo, first reported by the Associated Press Friday, lays out several possible policies to help implement President Trump’s executive order regarding border enforcement. Shortly after the report hit, the White House strongly denied the report, calling it “100% not true.” A spokesperson for the Department of Homeland Security says that the memo was a very early draft, and the idea for National Guard mobilization was “never seriously considered.”
A DHS official says memo was "a very early, pre decisional draft... and was never seriously considered by the Department"— Dorey Scheimer (@DoreyScheimer) February 17, 2017
The DHS further said it considered, but rejected, letting governors in 11 states decide whether to deputize their National Guards to enforce immigration law, including helping to detain and deport unauthorized immigrants. The memo is dated January 25, 2017, the same day that President Trump signed the executive order in question, and is consistent with DHS’s statement that it’s an “early draft.”
It is unclear whether the National Guard provision has survived in any form, including mobilizing National Guard units for border enforcement, as happened under both George W. Bush and Barack Obama. Nor is it clear whether any of the other policies considered in the draft memo will be implemented. Under George W. Bush, 287(g) agreements allowed police officers to engage in immigration arrests and raids as part of “task forces.” Barack Obama curbed the use of those task forces, which had been widely criticized for inspiring fear in immigrant communities and chilling immigrants’ willingness to report crimes to police, as well as raising constitutional concerns about local versus federal authority.
While it has been expected that the Trump administration would start deputizing local police to start enforcing immigration law again, doing so be invoking National Guard members would have been perceived as going much farther and could raise questions about posse comitatus.
According to the draft memo, the National Guard option would be given to governors in “states adjacent to the land border with Mexico and […] those states adjoining such border States,” per the draft memo. As the AP has pointed out, this covers 11 states — from Oregon in the Northwest to Louisiana in the Southeast.
Here is the key passage:
"I am directing the Commissioner of CBP and the Director of ICE to immediately engage with the Governors of the States adjacent to the land border with Mexico and to those states adjoining such border States for the purpose of entering into agreements of section 287(g) of the INA to authorize qualified members of the state National Guard, while such members are not in federal service, or qualified members of a state militia or state defense force under the command of the Governor, to perform the functions of an immigration officer in relation to the apprehension, investigation and detention of aliens in the United States."
And some interesting observations from the Federalist's Sean Davis:
The memo cited by DHS never mentions deportation. Not even once. You and AP, not Paul Ryan, are in a tough spot. https://t.co/PwcmIYhml2— Sean Davis (@seanmdav) February 17, 2017
An amazing fact about the DHS memo that I didn't realize until now: deportation is never mentioned. National Guard language *excludes* it. pic.twitter.com/nmMdoAzVoc— Sean Davis (@seanmdav) February 17, 2017
At no point does the DHS memo ever recommend using the National Guard to deport anyone. The entire focus is apprehension of criminal aliens.— Sean Davis (@seanmdav) February 17, 2017
Judging by the clear text of the DHS draft memo, claims of a "National Guard deportation force" are just not true. Awesome job, media. pic.twitter.com/EWjzrulb4e— Sean Davis (@seanmdav) February 17, 2017
Accurate characterization of the DHS draft memo: Trump DHS considers reinstating Bush/Obama policy on removal of criminal aliens. That's it.— Sean Davis (@seanmdav) February 17, 2017
The full memo is below (link).