FACT CHECK: CAN GOVERNORS REFUSE TRUMP’S REQUEST TO SEND THE NATIONAL GUARD TO THE BORDER?
(Checkyourfact.com | April 6, 2018) California Rep. Ted Lieu said in a tweet early Thursday that governors may legally refuse President Donald Trump’s request to send National Guard troops to the U.S.-Mexico border.
“Because @POTUS is using Title 32 authority–instead of federalizing the Guard under Title 10–this is a REQUEST for state Governors to send troops,” said the tweet.
Trump’s memorandum requires the consent of governors to send National Guard troops to the border. If governors refuse, he could try different legal tools to deploy the Guard.
Lieu sent the tweet after Trump signed a memorandum Wednesday requesting the use of the National Guard to help fight drug trafficking, illegal immigration and gang activity at the border. Oregon Gov. Kate Brown also said Wednesday that if Trump asked her to deploy Oregon National Guard troops to the border, she would refuse …
… While Title 32 does not give the president full command of Guard troops, it allows for more flexibility in the type of work that the forces may do. “The benefit of the Title 32 status from the perspective of the feds is those soldiers are not constrained by the Posse Comitatus Act,” William Banks, a law professor at Syracuse University and director of the college’s Institute for National Security and Counterterrorism, told The Daily Caller News Foundation.
The Posse Comitatus Act prohibits military participation in civilian law enforcement activities. Title 32 provides an exception to that rule, but Title 10 does not.
If a governor refuses to deploy the National Guard, Trump may use other strategies to legally utilize those troops at the border. George Mason University Law Professor Timothy M. MacArthur and Managing Attorney Leigh M. Winstead of the Mason Veterans and Servicemembers Legal Clinic said that the simplest solution would be to limit the work that the troops do so that he can utilize Title 10 instead …
… Banks said that while it is legal, deploying the National Guard to the border raises some tactical issues. “People in military uniforms generally don’t enforce the law … there’s just a cultural aversion to that,” he said. “Even if these men and women have the legal authority to do some things beyond what they were trained to do, there could be some challenges in operationalizing orders” …