A Texas National Guard member observes as a federal Border Patrol agent pats down migrants who have surrendered themselves for processing. President Donald Trump wants to utilize the National Guard for his immigration policy. (Corrie Boudreaux for Source New Mexico)
There’s an emerging blue-state nightmare: Inspired by President Donald Trump’s call to round up immigrants who are in the country illegally, Republican governors would send their National Guard troops into Democratic-led states without those leaders’ permission.
It’s a scenario that was so concerning to Washington state Rep. Sharlett Mena that she introduced legislation that would make uninvited deployments of out-of-state troops illegal. Her bill cleared a committee last week and has the backing of Democratic Gov. Bob Ferguson, who pushed for the proposal in his inaugural address last month.
The legislation is about maintaining the state’s autonomy and authority, Mena, a Democrat, told her colleagues during last week’s hearing. “Without this bill, there’s nothing on the books to prevent this.”
Later, she added, “Other states may take matters into their own hands when they want to enforce federal laws.”
In December, 26 Republican governors — all but Vermont Gov. Phil Scott — vowed to assist Trump with deportations of immigrants “who pose a threat to our communities and national security.” Their pledge included the use of National Guard troops.
Mena has reason to be concerned, said Joseph Nunn, a counsel in the Liberty and National Security Program at the Brennan Center for Justice, a left-leaning New York-based pro-democracy institute.
“The Trump administration has made it quite clear that they intend to use the military to assist with immigration enforcement,” he said. “States who are opposed to that would be wise to take what measures they can to protect themselves and their states.”
This week, Texas signed an agreement with the Trump administration giving the state’s National Guard troops law enforcement powers to arrest and help detain migrants. Republican Gov. Greg Abbott’s four-year Operation Lone Star program has until now used the National Guard only for surveillance and logistical support for federal agents.
Other states opposed to Trump’s deportation program could be inspired by Washington’s legislation and introduce similar measures in the months ahead, Nunn said. And Mena pointed out that Idaho, Kansas, Montana, North Dakota, Oklahoma, Rhode Island, South Carolina and Texas have laws that prevent other states’ National Guard troops from entering without permission.
But, as she noted to her colleagues last week, if Trump were to federalize National Guard units, there’s nothing the state could do to prevent it; a presidential order preempts state authority.
Republican state Rep. Jim Walsh dismisses Mena’s concerns.
“I believe that legislation is unnecessary,” he told Stateline in an interview. “I think it’s what is generally considered a statement bill, but you have to treat it seriously. I’m not sure what they’re getting at here other than a swipe at Donald Trump.”
Washington state law prohibits state and local law enforcement from cooperating with federal immigration enforcement — which Walsh described as “horrible” public policy. Mena’s legislation would only add to that “dumb” approach to immigration enforcement, he said.
Federal law
While the National Guard is generally organized at and operates under state command using state funding, it can be called into federal service, operating with federal funding and placed under the president’s control. But there’s a murky middle ground in federal law that would make a measure like Washington’s relevant.
Under one federal statute, Title 32, a state’s National Guard can be commanded by the governor but operate using federal funding on a federal mission at the request of the president. While the policy was originally crafted in the 1950s as a way for Congress to pay for extensive training requirements, presidents have since expanded its use.
Presidents George W. Bush, Barack Obama and Trump, in his first term, all deployed National Guard troops to the southwestern border to assist with migration deterrence.
Trump’s mass deportation plan could rely on state cooperation
Trump also used the statute in 2020 to request that states send National Guard units to Washington, D.C., when he wanted to suppress the Black Lives Matter protests happening there. Eleven governors voluntarily sent troops, despite objections from the district’s mayor. The district does not enjoy the sovereignty of states.
“No state is more sovereign than another state, and their sovereignty is also territorially limited,” Nunn said. “Illinois’ sovereignty stops at the Indiana state line and vice versa. Indiana cannot reach into Illinois and exercise governmental power there without Illinois’ consent, even if the president asked Indiana to do this and even if Congress is footing the bill.”
Put simply: No state can invade another state.
‘An insurance policy’
Because of this, Washington state’s legislation might be redundant, said William Banks, a professor emeritus at Syracuse University College of Law who has studied and recently written about National Guard deployments and Trump’s rhetoric of a migrant “invasion.”
“It’s like an insurance policy,” he said of the bill. “It may be a very good idea to call attention to the independence of the state government and its perspective that they’d very much like to be in charge of their own internal affairs, including migration or whatever else might be going on.”
Banks said the measure, if passed as expected, could be something that state leaders point to if, for example, Idaho or Montana were considering deploying their National Guard units to Seattle to carry out Trump’s immigration enforcement.
However, he said, the whole discussion becomes irrelevant the moment Trump invokes the Insurrection Act, which would allow for federal military intervention in a nonconsenting state.
State, local officials plan for potential immigration enforcement at schools
The 1792 law has been used occasionally in response to unexpected crises that overwhelmed civilian authorities or when a state was obstructing federal civil rights laws or other constitutional protections. In theory, though, the president could frame one of his policy priorities, such as immigration, as a national emergency in need of a massive troop mobilization. Trump has already asked his deputies to study the use of the law.
“The Insurrection Act is a euphemism for when all hell breaks loose,” Banks said. “It’s an extreme measure for extreme times.”
Until that occurs, Washington lawmakers would be wise to adopt preventive measures, said Nathan Bays, deputy policy director for Washington’s governor. He told committee members during the bill’s hearing that it is “precautionary” and would not harm the readiness or training of the state’s National Guard.
“Washington will continue to be a strong partner with our other National Guard units across this nation,” he said.
But Republican state Rep. Rob Chase told Stateline that the legislation is a solution looking for a problem — wasting time when the legislature should be focused on real issues, such as public safety, homelessness, a housing shortage, fentanyl and education.
“This seems like more fear mongering by the ruling party in Olympia over what they perceive to be happening in the other Washington,” he wrote in an email.
This story was originally published by Stateline. Like Maine Morning Star, Stateline is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Stateline maintains editorial independence. Contact Editor Scott S. Greenberger for questions: info@stateline.org.
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