Professor explains a president’s authority over National Guard

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Grand Rapids, Mich. -- The Associated Press reported on a leaked draft memo that shows the federal government has considered using the National Guard to round up undocumented immigrants.

This is something the White House flat out denied. The Department of Homeland Security said there were conversations as late as Friday. DHS the issue was never seriously considered and that the draft memo didn't make it to the White House.

But would a move like this be constitutional?

Professor Devin Schindler with Western Michigan University Cooley Law School said the National Guard is a unique entity because it's under dual authority of both state and federal governments.

A governor oversees training and day-to-day operations.

"Under the constitution, the president has the authority to be the commander-in-chief of the National Guard when it's been called up, among other things, to enforce the laws," he said.

Schindler said the president can mobilize the National Guard for reasons such as an insurrection, invasion, or rebellion, to name a few. The DHS's draft memo discussed using 100,00 National Guard troops to round up undocumented immigrants in 11 states, closest to the border of Mexico.

Schnidler said there's not much recourse if the governors in those states want to push back.

He explained, "Over history, there's been times when states have said or governors have said 'no I'm going to reject you calling up, essentially, my troops.' Well, again there's a series of statutes in the past that have greatly limited governors' authority to do so. Now, a governor could make the argument in court, I suppose, that the national need is not there."

The professor said President George W. Bush mobilized the National Guard in 2006 to assist border patrol.

"Perhaps the most famous example of the president using the National Guard to enforce the laws came out in 1957, 1958 era when Dwight Eisenhower called out the National Guard in Little Rock to enforce desegregation," Schindler said.

He added, "The state refused to do it. So the president exercised his authority under the statue under the Constitution to call out the National Guard to force the states, essentially, to integrate racially divided schools."

As seen in West Michigan and across the country, there's been unrest and worry over the president's immigration policies. If the Trump administration wanted to mobilize the National Guard for detaining unauthorized immigrants, Schindler said the constitution protects all people not just citizens.

"And so there's a whole series of cases that indicate that these folks must be given some due process and an opportunity to show that they are in fact documented, an opportunity to show that they fit in one of the exceptions," he explained.

For example, Schindler said an undocumented immigrant who ends up detained could prove they're a political refugee (as opposed to automatic deportation). If the Trump administration does end up deciding to mobilize the National Guard, the professor said he wouldn't be surprised if a number of lawsuits are filed.

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