Congress Caught Unaware by National Guard Report

Mitch McConnell says he will ‘take a look’ at any White House proposal

Border protection agents during a service at the Capitol in 2008. (Scott J. Ferrell/CQ Roll Call File Photo)
Border protection agents during a service at the Capitol in 2008. (Scott J. Ferrell/CQ Roll Call File Photo)
Posted February 17, 2017 at 1:27pm

Congress was caught somewhat flat-footed Friday by reports that the Trump administration is considering calling on the National Guard to round up and deport undocumented immigrants. 

“I hadn’t heard about it,” Senate Majority Leader Mitch McConnell said when asked about an Associated Press report on a memo drafted by the Department of Homeland Security. The document proposed mobilizing as many as 100,000 National Guard troops across 12 states to gather immigrants who were in the country illegally. AP reported that the memo, dated Jan. 25, bore the name of DHS Secretary John Kelly, and had circulated among DHS staff.

McConnell told reporters at a previously scheduled news conference that Congress would look at border security as part of its government funding discussions. Regarding the draft memo and a potential force focused on deportations, the Kentucky Republican said he would “take a look at anything they may choose in that regard.”

The White House and Homeland Security Department are denying that the administration is considering mobilizing the National Guard to round up undocumented immigrants. 

White House Press Secretary Sean Spicer told reporters traveling with President Donald Trump that the AP report is “100 percent not true.”

“It is false,” Spicer said, according to a pool report. “It is irresponsible to be saying this. … There is no effort at all to round up, to utilize the National Guard to round up illegal immigrants.”

Spicer did not rule out the possibility that the reported memo had been prepared somewhere within the government, but he stated flatly that “it is not a White House document.”

The memo examining whether National Guard troops could be deployed for immigration enforcement was a “very early draft of an internal document that never made it to Secretary Kelly,” a senior Homeland Security official told Roll Call. The idea of mobilizing Guard troops is not under consideration, the official said, adding that it’s “completely dead.”  

Kelly’s name was at the bottom of the memo because it’s a standard format for all such internal departmental memos, the official said. The internal deliberation began after Trump’s Jan. 25 executive order titled “Enhancing Public Safety in the Interior of the United States,” which set priorities for immigration enforcement, and the department began looking at ways to implement the order, the official said. 

But congressional Democrats still blasted the move.

Senate Minority Leader Charles E. Schumer called the memo “despicable.”  

“That would be one of the most un-American things that would happen in the last century and I just hope it’s not true,” the New York Democrat told reporters at a press conference on Friday. “The fact that it might even be considered is appalling.”

Senate Minority Whip Richard J. Durbin, a passionate advocate on immigration issues in the Senate, said mobilizing Guard troops would be “a frightening exercise of police state tactics.”

“We cannot rein in the hateful anti-immigrant agenda of the administration unless the American people stand in solidarity against it,” the Illinois Democrat said. “This is not a bizarre tweet. This is a brazen, heavy-handed assault on innocent people.”

California Democratic Rep. Ted Lieu drew upon his experience as a military lawyer in a tweet, writing, “I served on active duty as JAG. President cannot by himself federalize National Guard to arrest immigrants. Needs consent of Governors.”

Governors would have discretion over whether their troops would participate in the actions in the draft memo, according to the AP.

Steve Vladeck, a law professor at the University of Texas, said the draft order is likely legal, assuming the administration dots all its Is and crosses its Ts.

The president has an array of authorities that allow him to deploy the Guard when, in his view, laws are not being sufficiently enforced. The deployment either needs the approval of the governor of the state or the president can use authorities in the Insurrection Act to go it alone.

But while it is likely legal, Vladeck called the move “really stupid.”

“The authorities for National Guard and military law enforcement are meant for emergencies. They’re meant for situations in which the … normal law enforcement entities are unable or incapable of doing their job,” Vladeck said. “I don’t think ICE is unwilling or unable to do their job.”

Rather than deploy the Guard, Vladeck recommends beefing up ICE capabilities.

“Go to Congress and get more money,” he said. “If the goal is to ramp up enforcement, there is a normal and, I think, traditional way to do it. The National Guard and military are not trained for immigration.”

Asked if Congress should play a role in addressing undocumented immigrants, McConnell signaled that action would come from the executive branch instead.

“The president has a lot of latitude in this area and I think I’ll wait and react to what he chooses to do,” he said.

McConnell said he is “very sympathetic” to the situation facing so-called Dreamers, or undocumented immigrants brought to the U.S. as children, and he was eager to see what the president plans to do to address the Deferred Action for Childhood Arrivals program. 

“What I did say is that I’m very sympathetic to the situation with these youngsters who were brought here at an early age and who have largely grown up here,” he said. “And I think the president has some sympathy for that situation, too.”

“So we’ll see what he decides to do,” McConnell said. 

Gopal Ratnam, Megan Scully, John T. Bennett and Lindsey McPherson contributed to this report.