WASHINGTON, September 10 — The watchdog group American Oversight on Friday released records obtained through a Freedom of Information Act request to Immigration and Customs Enforcement that include an April 2025 memo from the Department of Homeland Security’s Office of the General Counsel to all state attorneys general. First reported by Politico, the memo lays out a two-step legal theory for deploying National Guard members as immigration enforcement officers, including outside their home states.
Under the hood, the argument runs like this: first federalize Guard members under Title 10, then deputize them as immigration officers under 8 U.S.C. § 1103(a)(6). That combination, the memo contends, would sidestep the Posse Comitatus Act’s restrictions on using the military for domestic law enforcement.
The statute and the workaround
The Posse Comitatus Act, originally enacted in 1878, generally prohibits the use of federal military personnel to execute civilian laws unless Congress explicitly authorizes it. The technical reality of the DHS theory is that it does not seek that authorization. It seeks to avoid needing it.
The memo’s signature block identifying its author is redacted, but Joseph Mazzara was DHS acting General Counsel at the time. In March, American Oversight released internal DHS communications obtained through FOIA showing Mazzara previously suggested federal agents in Los Angeles should have “just started hitting” protesters during a 2025 demonstration against Trump’s immigration policies.
Election timing and the polling-place question
The records come to light as the Trump administration escalates unsubstantiated claims about noncitizen voting ahead of the 2026 midterm election. Because the legal theory outlined in the memo is not limited to any particular set of circumstances, the administration could invoke it as a basis for deploying National Guard troops at or near polling places, using unfounded claims about noncitizen voting as a pretext for a military presence in and around elections.
“With a consequential election approaching, this memo should alarm every American,” said American Oversight Executive Director Chioma Chukwu. “DHS developed a legal blueprint for turning National Guard members into immigration enforcement officers, deploying them across state lines, and sidestepping the Posse Comitatus Act.
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. The stakes extend well beyond immigration: This memo gives the president a ready-made workaround for using military power at home whenever the administration decides its agenda demands it.” According to Politico, when DHS was asked for comment on the memo, it responded with a statement saying it would “let the letter speak for itself.”
A theory no longer speculative
Legal scholars have warned for months that the administration might try to use immigration-officer deputization statutes as a back door around the Posse Comitatus Act’s restrictions on military involvement in civilian law enforcement.
Analysts at the Brennan Center and Just Security have each cataloged the statutory authorities the administration could invoke to expand the National Guard’s domestic role, cautioning that deputizing Guard members as immigration officers would let the government sidestep the Act’s core protection — that the military not be used to police American civilians — without the kind of explicit congressional authorization the Act itself requires.
Critics have also argued that Congress never intended the immigration statutes DHS now relies on to double as a workaround for military deployment inside the United States. Until now, that concern remained speculative. No public document had yet confirmed DHS was actually adopting this legal theory.
The memo obtained by American Oversight is the first publicly available record that memorializes the theory as administration policy. The detail that matters going forward is whether the memo’s two-step sequence is ever put into practice, and where.
Watch for any federalization order paired with deputization paperwork, and for whether Congress moves to close the statutory gap the memo identifies.
