Immigration Article of the Day: What Just Happened: Unpacking Exec Order on National Emergency at the Southern Border by Mark Neavitt
What Just Happened: Unpacking Exec Order on National Emergency at the Southern Border by Mark Neavitt, Emory Legal Studies Research Paper
Abstract
With the stroke of a pen, President Donald Trump issued an executive order declaring the situation at the southern border a national emergency. Trump also issued an executive order titled “Clarifying the Military’s Role in Protecting the Territorial Integrity of the United States.” This second executive order directs the Secretary of Defense to deliver a plan to “seal the borders and maintain the sovereignty, territorial integrity, and security of the United States by repelling forms of invasion including unlawful mass migration, narcotics trafficking, human smuggling and trafficking, and other criminal activities.” Trump’s second executive order tasks the Secretary of Defense to send as many units or members of the Armed Forces as “appropriate to support the activities of the Secretary of Homeland Security in obtaining complete operational control of the southern border of the United States.”
In a separate statement of America First priorities, the president notes:
“Armed Forces, including the National Guard, will engage in border security, which is national security, and will be deployed to the border to assist existing law enforcement personnel.” (emphasis added)
These executive orders, while not surprising, represent a fundamental shift in U.S. immigration and national security priorities. They also elevate and potentially significantly expand the military’s role at the southern border. Notably, Trump used the verb “assist” in his America First policies, and phrases such as “support the activities of the Secretary of Homeland Security” and “assist the Department of Homeland Security” in the first order. These key terms likely indicate that the military will not displace Department of Homeland Security and civilian law enforcement at the border. On the other hand, by 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).