So, I’m no expert, and this is pretty quick and dirty, but here’s my hot take.
10 U.S. Code § 12302 authorizes the call-up of reservists during a “national emergency.”
10 U.S. Code § 2808 authorizes “military construction” in a national emergency “that requires the use of the armed forces.” The word “requires” is going to be getting a lot of attention, I suspect-why is this an “emergency” that requires the use of the military?
But wait, there’s more.
“Military construction” is, basically, any construction “with respect to a ‘military installation.’” “‘Military installation’ means a base, camp, post, station, yard, center, or other activity under the jurisdiction of the Secretary of a military department or, in the case of an activity in a foreign country, under the operational control of the Secretary of a military department or the Secretary of Defense, without regard to the duration of operational control.”
So, the authority to grab land and build stuff on it that he’s invoking only exists with regard to areas under the jurisdiction of the Secretary of Defense, of the Secretary of the Army, Navy or Air Force.
So, this only works if the border is literally militarized, i.e. placed under the jurisdiction of the military. This is a horrific, terrifying, nightmarish prospect. But note that the order doesn’t actually do that. It authorizes the military to accept jurisdiction if transferred, but it doesn’t actually transfer it.
And I suspect id didn’t do that because at least the lawyers doing the drafting realized it touched off an instant Constitutional crisis. First, jurisdiction over the border is lodged, by statute, in CBP and ICE 6 U.S.C. s. 211. There is no provision of law permitting that jurisdiction to be delegated to the military. (ICE has some authority to enter into agreements with state and local officials to get them involved in immigration enforcement. You may recall that local governments that took them up on that mostly decided they didn’t like it and dropped it. 8 USC 1357.)
Second, because doing so would violate the Posse Comitatus Act, which makes it a felony for anyone to use “any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws[.]” If Trump transferred jurisdiction to the military, it would literally be a felony and, thus, an impeachable offense.
I suspect, to the extent there has been any thinking other than “vomit out some impressive sounding words to placate the lunatic,” they’re counting on some attempts by Neilsen at DHS to transfer jurisdiction to DOD, thereby keeping Trump’s fingerprints off of it and, they think, de-escalating and normalizing a strictly illegal act.
