Two Words and a World of Trouble
Let me tell you a story about clowns evolving into velociraptors.
Bill Kristol sat in for Sarah on the Secret Pod today and it was dark. Just a warning. If you’re not in good head-space to begin with today, maybe skip this episode? The show is here.
1. Invasion!
Over at Just Security, Mark Nevitt, a military lawyer and professor at Emory Law School, took the time to unpack Trump’s executive orders on the border. To wildly mix metaphors: These EOs suggest that Trump has moved from clown-with-flamethrower to velociraptor-that-opens-doors.
A quick summary:
There are two border EOs. The first declares a “national emergency” at the border. The second “[clarifies] the military’s role in protecting the territorial integrity of the United States.”
The second EO directs the SecDef to submit a plan to “[repel] forms of invasion including unlawful mass migration, narcotics trafficking, human smuggling and trafficking, and other criminal activities.” [Bold added by me.]
“Invasion” is a legal, not a descriptive, word. Put a pin in this . . .
In a third “statement of America First priorities,” Trump declared that the U.S. military would “assist” law enforcement in “border security.”
As Nevitt explains, the net effect of this language isn’t just about immigration. It’s about a fundamental shift in American norms concerning the domestic use of the military. Here’s Nevitt:
[B]y characterizing immigration as an “invasion” and tasking the military with protecting “the sovereignty and territorial integrity of the United States along our national borders,” the second executive order may expand the “military purpose doctrine” beyond historical usage (and inching closer to a law enforcement purpose instead).
Let’s start with the first EO declaring the “national emergency.” Nevitt explains that this declaration is a legal key to unlocking additional presidential powers. This is where the raptor-learning-to-open-doors analogy seems on point:
Trump is using a specific military construction statute, 10 U.S.C. § 2808, that diverts money away from military construction projects to construct a border wall. But to activate this authority, the president must comply with section 2808’s statutory text. Section 2808 authorizes military construction projects “that are necessary to support [] use of the armed forces” in cases where a national emergency requiring use of the armed forces has been declared. Unlike his February 2019 executive order that tapped into similar authorities, Trump has now issued a second executive order that closely links the U.S. military’s mission with border security and “protecting the sovereignty and integrity of the U.S. along our national borders.” By linking the military’s mission so closely to border security, the Trump administration appears to anticipate legal challenges that the use of military construction funds for border wall construction is not necessary to support the armed forces . . .
Clever boy.
Next, take the word “assist” in Trump’s declaration that the military will “assist” law enforcement in “border security.”
The Posse Comitatus Act makes it unlawful for the president to use the military in direct support of law enforcement while inside the United States.1 This is why Trump uses the word assist.
Which brings us, finally, to “invasion.” Here’s Nevitt one last time:
[C]ourts have held that Posse Comitatus Act restrictions do not apply to federal troops’ actions taken primarily for a “military purpose”—even if such activities benefit law enforcement. The military purpose doctrine authorizes incidental assistance to law enforcement—this could act as a bit of a legal workaround to the general prohibition of direct law enforcement support. . . . The military purpose doctrine authorizes “actions taken for the primary purpose of further[ing] a Department of Defense or foreign affairs function of the United States.”
You see what’s going on here, yes?