“No court has ever said that it is an exception to the PCA,” said Joseph Nunn, counsel for liberty and national security at the Brennan Center for Justice. He was talking about a Department of Homeland Security memo that treats an immigration statute as just that.
The memo dates from April 2025 and went to state attorneys general. The watchdog group American Oversight obtained it through a Freedom of Information Act request. It sets out when National Guard troops could “perform immigration functions.”
The two-step argument
Under the hood, the theory is simple. Guard members deployed across state lines become federal employees. Federal employees can then be designated immigration officers under Section 1103(a)(6) of U.S. immigration law. The memo concludes that none of this violates the Posse Comitatus Act, which generally bars the military from carrying out civilian law enforcement inside the country.
The Act has exceptions, including emergencies and cases Congress authorizes, such as under the Insurrection Act. Nunn said DHS is asserting that Section 1103(a)(6) belongs on that list, “in a kind of conclusory and cavalier fashion.” It does not appear there, he said.
Critics see wider reach
Nunn described the broader pattern as unprecedented. “The principle in the United States, going back to the founding, has always been that the use of the military domestically is a break-glass-in-case-of-emergency type tool,” he said. The administration, in his view, “has attempted to insert the armed forces into routine law enforcement on a scale that has no precedent in modern American history.”
He added that military involvement in immigration enforcement has grown for decades along the U.S.-Mexico border, under administrations of both parties. What he sees now is that practice moving inland. “What happens when it expands again, outside of immigration into other substantive areas?” he asked.
American Oversight Executive Director Chioma Chukwu pointed to the election calendar. “Combined with the administration’s escalating claims about noncitizen voting, this theory could be used to put military forces near polling places under the guise of immigration enforcement,” she said. “This memo gives the president a ready-made workaround for using military power at home whenever the administration decides its agenda demands it.”
Guard troops have already supported some Immigration and Customs Enforcement operations, including security for agents making arrests. There is no public evidence that Guard members have carried out immigration arrests under the authority the memo describes. A DHS spokesperson told Scripps News, “We will let the letter speak for itself.”
