How Dhs Created A Workaround To Turn Guard Members Into Immigration Officers

The Department of Homeland Security devised an unusual legal tool last year that made it possible for National Guard members to participate in immigration enforcement operations, according to an internal memo obtained by POLITICO.

Officials issued the confidential memo to state attorneys general in April 2025 authorizing Guard troops to "perform immigration functions” outside of their home state, including arresting unauthorized immigrants, although it is not clear whether troops did so.

The document offered a way for officials to circumvent a law that prevents the military from performing law enforcement duties, known as the Posse Comitatus Act. National Guard troops are part of the military. The memo justifies the shifted rule by saying the Homeland Security secretary can designate any federal employee — which Guard troops become when they are ordered to another state — as an immigration officer.

The agency has yet to use the argument in court, but the unprecedented legal theory underpinning the document underscores the creative lengths the administration has gone to buttress its immigration crackdown.

And it has also worried legal scholars, who viewed the memo and said the administration was flouting the law.

“DHS is trying to pull a fast one,” said Joseph Nunn, who specializes in domestic uses of the military at the Brennan Center for Justice, which has been critical of the Trump administration’s immigration actions.

The government by law can only use the military for “exact, unmistakable terms,” Nunn said, not with broad discretion.

The existence of the memo was long suspected in legal circles, especially since Guard units from Texas, Tennessee and other states have helped the agency carry out many of the clerical and logistical tasks needed to arrest, process and deport unauthorized immigrants. The Trump administration has used National Guard units, mostly from Republican-led states, for a litany of security missions, among them border enforcement.

Some units have also protected Immigration and Customs Enforcement agents as they’ve carried out arrests, although the administration has yet to use Guard members to apprehend and detain targets.

American Oversight, a liberal-leaning watchdog group, obtained the document through a Freedom of Information Act request.

Chioma Chukwu, executive director of American Oversight, said the “memo should alarm every American” ahead of the midterms.

DHS, in a statement, said it will "let the letter speak for itself."

The author of the April 17, 2025 memo is redacted, but the memo was sent from the department’s acting general counsel at the time, Joseph Mazzara. He went on to serve at Customs and Border Protection before leaving the department.

DHS “is pushing the envelope in every possible way they can,” said Doris Meissner, a former director of Immigration and Naturalization Services, now at the nonpartisan Migration Policy Institute think tank in Washington.

The Supreme Court in December limited the ability of the administration to use the Guard for immigration enforcement purposes, emphasizing that the military can only be deployed for law enforcement purposes when local forces are operating inadequately.

But the strategy may stretch beyond immigration enforcement. Some administration critics argued the department could use those same legal rationales to justify sending Guard members to polling sites to combat alleged voter fraud committed by unauthorized immigrants.

President Donald Trump has repeatedly threatened to invoke the 1807 Insurrection Act, which would allow for the deployment of troops nationwide to quell unrest. And some of the president’s supporters have already suggested that Republican governors may deploy the National Guard to polling places ahead of November’s elections.

Homeland Security Secretary Markwayne Mullin has also sought to use the department to investigate voter fraud. He has not ruled out sending Immigration and Customs Enforcement officers to polling places in response to “specific” threats.

Mullin and other administration officials have said non-citizens are voting in U.S. elections — without providing evidence that it is changing the outcome — and that federal scrutiny is needed to prevent that from occurring in the future.

"We will scrub all election records, looking for illegal aliens and those who are ineligible to vote, including those that somehow voted, yet they were deceased," Mullin said in July.

But administration critics warn this document sets a dangerous precedent.

“The stakes extend well beyond immigration,” said Chukwu, the American Oversight head. “This memo gives the president a ready-made workaround for using military power at home whenever the administration decides its agenda demands it.”