CRS Legal Sidebar
Prepared for Members and
Committees of Congress
The President’s Authority to Use the National
Guard or the Armed Forces to Secure the
Border
Jennifer K. Elsea
Legislative Attorney
April 19, 2018
President Trump’s recent announcement and memorandum to the Attorney General and the Secretaries of
Defense and Homeland Security regarding the possibility of deploying the military to help guard the U.S.-
Mexican border against aliens entering the country unlawfully as well as to stop the flow of drug and
gang activity raise questions regarding his statutory or constitutional authority to do so. The answer may
depend on which troops are sent and the role they will play. This sidebar addresses the legal authorities
for the President to use the National Guard or the armed forces to assist in securing the southwestern
border.
Memorandum and Recent Precedent
Declaring the situation at the border to have reached a point of crisis characterized by lawlessness, the
President in the memorandum directs the Secretary of Defense to request the use of National Guard troops
to assist in securing the southern border to “stop the flow of deadly drugs and other contraband, gang
members and other criminals, and illegal aliens,” pursuant to Title 32 authority. (In “Title 32 status,”
National Guard members remain under the control of the governors of their home states and are not
considered to be performing federal service.) The memorandum also directs the Secretary of Defense and
the Secretary of Homeland Security to confer with the Attorney General in the preparation of an action
plan recommending the use of other available executive authorities to be invoked for border protection.
There is precedent for deploying National Guard units to the southwestern border to assist with
immigration control. In 2006-2008, President George W. Bush called on the National Guard to participate
in Operation Jump Start, in which National Guard troops were called to duty in order to provide
assistance to the U.S. Customs and Border Protection (CBP) to secure the southwestern border. National
Congressional Research Service
7-5700
www.crs.gov
LSB10121
