Free Markets, Free People


The Growing Problem At The Mexican/US Border (UPDATE)

The Drug War along the Mexican-US border is getting some high level consideration:

President Obama weighed in Wednesday on the escalating drug war on the U.S.-Mexico border, saying that he was looking at possibly deploying National Guard troops to contain the violence but ruled out any immediate military move.

“We’re going to examine whether and if National Guard deployments would make sense and under what circumstances they would make sense,” Obama said during an interview with journalists for regional papers, including a McClatchy reporter.

“I don’t have a particular tipping point in mind,” he said. “I think it’s unacceptable if you’ve got drug gangs crossing our borders and killing U.S. citizens.”

Already this year there have been 1,000 people killed in Mexico along the border, following 2008′s death toll of 5,800, according to federal officials who credit Mexican President Felipe Calderon for a crackdown on drug cartels.

But the spillover on the border — for example, to El Paso from neighboring Ciudad Juarez — has created a political reaction.

In a recent visit to El Paso, Texas Gov. Rick Perry called for 1,000 troops to protect the border.

Obama was cautious, however. “We’ve got a very big border with Mexico,” he said. “I’m not interested in militarizing the border.”

I agree with his point about not “militarizing the border”. And I certainly understand the desire to send in help to quell and control the violence that spills over the border. But my question is, how will the troops be mobilized? The only way Obama can send in National Guard troops as I understand it is by federalizing them. Then it becomes a matter of their role. The Posse Comitatus act prevents federal troops from being used in a law enforcement role except on federal property (like Washington DC). So he’s limited in the role to which he can commit any troops even if he wanted too.

It would seem instead, that perhaps the best way to proceed in this case, if the desire is to send NG troops to the border to help in law enforcement, is for the Governors to mobilize and send them while letting active military lend logistical, intel and perhaps advisory support. But unless they’re sent in a war-fighting mode, there isn’t much of a role for federal troops in this case.

UPDATE: Commenter Jay Evans notes a recent change in the law which may effect this (the John Warner National Defense Authorization Act for Fiscal Year 2007 (H.R. 5122)):

 SEC. 1076. USE OF THE ARMED FORCES IN MAJOR PUBLIC EMERGENCIES. (a) USE OF THE ARMED FORCES AUTHORIZED.— (1) IN GENERAL.—Section 333 of title 10, United States Code, is amended to read as follows: ‘‘§ 333. Major public emergencies; interference with State and Federal law ‘‘(a) USE OF ARMED FORCES IN MAJOR PUBLIC EMERGENCIES.— (1) The President may employ the armed forces, including the National Guard in Federal service, to— ‘‘(A) restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that— ‘‘(i) domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order; and ‘‘(ii) such violence results in a condition described in paragraph (2); or ‘‘(B) suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such insurrection, violation, combination, or conspiracy results in a condition described in paragraph (2). ‘‘(2) A condition described in this paragraph is a condition that— ‘‘(A) so hinders the execution of the laws of a State or possession, as applicable, and of the United States within that State or possession, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
‘‘(B) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.

‘‘(3) In any situation covered by paragraph (1)(B), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.

‘‘(b) NOTICE TO CONGRESS.—The President shall notify Congress of the determination to exercise the authority in subsection (a)(1)(A) as soon as practicable after the determination and every 14 days thereafter during the duration of the exercise of that authority.’’.

(2) PROCLAMATION TO DISPERSE.—Section 334 of such title is amended by inserting ‘‘or those obstructing the enforcement of the laws’’ after ‘‘insurgents’’.

It looks like it now depends on the classification of the problem. 

~McQ

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8 Responses to The Growing Problem At The Mexican/US Border (UPDATE)

  • The Posse Comitatus act prevents federal troops from being used in a law enforcement role except on federal property

    See the John Warner National Defense Authorization Act for Fiscal Year 2007 (H.R. 5122)

    SEC. 1076. USE OF THE ARMED FORCES IN MAJOR PUBLIC EMERGENCIES. (a) USE OF THE ARMED FORCES AUTHORIZED.— (1) IN GENERAL.—Section 333 of title 10, United States Code, is amended to read as follows: ‘‘§ 333. Major public emergencies; interference with State and Federal law ‘‘(a) USE OF ARMED FORCES IN MAJOR PUBLIC EMERGENCIES.— (1) The President may employ the armed forces, including the National Guard in Federal service, to— ‘‘(A) restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that— ‘‘(i) domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order; and ‘‘(ii) such violence results in a condition described in paragraph (2); or ‘‘(B) suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if such insurrection, violation, combination, or conspiracy results in a condition described in paragraph (2). ‘‘(2) A condition described in this paragraph is a condition that— ‘‘(A) so hinders the execution of the laws of a State or possession, as applicable, and of the United States within that State or possession, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State or possession are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
    ‘‘(B) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
    ‘‘(3) In any situation covered by paragraph (1)(B), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.
    ‘‘(b) NOTICE TO CONGRESS.—The President shall notify Congress of the determination to exercise the authority in subsection (a)(1)(A) as soon as practicable after the determination and every 14 days thereafter during the duration of the exercise of that authority.’’.
    (2) PROCLAMATION TO DISPERSE.—Section 334 of such title is amended by inserting ‘‘or those obstructing the enforcement of the laws’’ after ‘‘insurgents’’.

  • The changes described above were repealed in their entirety by HR 4986: National Defense Authorization Act for Fiscal Year 2008.  see the Wikipedia article on the Insurection act.  http://en.wikipedia.org/wiki/Insurrection_Act#Amendments_of_2006

    People really need to read further down the page or the whole article on these. (unless wikipedia is wrong about this- but that is the main site quoted here)

  • Sorry, old link I had saved. But I still see the same basic wording in the 2008 version

    ‘‘The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—

    ‘‘(1) so hinders the execution of the laws of that State, and of the United States within the State, that any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection; or
    ‘‘(2) opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.
    In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution.’’.

    It still says the President may do what he deems necessary to restore lawful order in a state. The wording seems to give the President complete discretion in the matter.

    • Jay-

      First, let me say  I would think border security from/against heavily armed foreigners would NOT be a violation of the PCA anyway.  If it were the Mexican Army we wouldn’t be hand wringing over this we would be kicking @ss and taking names.  That is probably more heavy handed than the president wants to get.  They would not be acting as police. 

      But if you wanted to make arrests and give trials then I don’t think this is that clear of an authorization to use the military. 

      This all sounds like it authorizes something like martial law to protect constitutional rights/immunities/protections  (equal protection under the law) rather than physical protection.  I could be wrong but thats what I am reading in this.

      The key phrase is “right, privilege, immunity or protection named and secured in the Constitution and secured by law”.  The OK to use the military must pass through that gate.  I think that doesn’t have much to do with what we are talking about (it is the Insurrection Act and this isn’t any thing like an insurrection).

      Best course of action is probably to ramp up slowly for political reasons along this chain; border police, then National Guard with legal federal military support, then if that still won’t fix it-  Apaches, Cobras, Predator drones, Spectre gunships and possible air assault infantry should fix the problem pretty well.

      Let me know what you think.

  • First, let me say  I would think border security from/against heavily armed foreigners would NOT be a violation of the PCA anyway.

    I agree with that. The border is an inter-national demarcation. It’s not in any strict sense an internal domestic matter to be dealing with a problem at the border that’s coming from the nation state that’s on the other side of it.

  • This is a libertarian site, right?  Any reason we’re not discussing another option?

    • You mean open borders and no drug war? Discussed previously, zero likelihood.

      Now we deal with the reality of the situation as it stands today, since neither open borders or no drug war are likely in the next 10 to 50 years (although we are rather pleased with the initial rumblings about the administration leaving decisions on medical marijuana up to the states – that at least gives some hope).

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