I am a Cavalryman, or at least I once was. In days gone by I commanded some of the men of the 7th Cavalry. We rode iron steeds, and my men were worthy successors to their historical forefathers. Of course everyone knows what happened to the 7th along the Little Bighorn in 1876. But you might not know how the regiment started. See, we started fighting racists and those who believed that real Americans came in only one color.

The regiment was created in the wake of the Civil War. From its inception, it had one primary mission: patrolling the former rebellious states that had fought against America, and hunting down the Ku Klux Klan. As a result, the unit was spread across the South for nearly a decade.

Then the conservative whites in the states that tried to destroy the United States gained a political foothold, and a presidential election hung in the balance. The "compromise" to end the deadlock was that the U.S. government would stop using U.S. troops to enforce laws about things like voting, and lynching, and would pull out of the South entirely. That was 1878. The law was the Posse Comitatus Act.

Now, for the first time in more than 130 years, there seems to be at least top-level consideration for how to run over that law.

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On Friday morning, the Associated Press reported the existence of a draft memo that suggested using U.S. military forces, specifically the National Guard units of 11 different states, to enforce immigration deportations. According to the National Guard Bureau, this plan could involve as many as 100,000 troops. White House Press Secretary Sean Spicer categorically denied the report, calling it "100 percent not true" and "irresponsible."

"There is no effort at all to utilize the National Guard to round up unauthorized immigrants," Spicer said.

So the AP did the logical thing: they published the document.

Read it closely.

There are two different parts of U.S. Code that authorize the raising and maintenance of military forces in the United States. The "Regular" forces fall under Title 10, while the National Guard (when operating under the control of state governors) falls under Title 32.

The "Regular" forces are always paid for, equipped, and controlled by the federal government, as are the "Reserves." But the National Guard, which came out of a series of administrative reforms at the turn of the 20th Century, culminating in the "Dick Act," evolved out of the American militia tradition. That act solved a problem that had plagued the United States since April 19, 1775. Specifically, that state-led militia forces would often refuse to go anywhere outside of their state—or very far out—even in the face of the British forces (in the Revolutionary War and then again in the War of 1812). That led to temporary work-arounds during the Mexican-American War, the Civil War, and the Spanish American War.

Under Secretary of War Elihu Root, the state militias were still organized in their own states, but the federal government would pay for their combat training and equipment. In return, those units, now known as National Guard, could be "federalized" by the president, falling under the control of the federal government and the "Regular" military structure. It was a meaningful compromise and it has served the nation well.

What this generally means is that if a state governor wants to use his or her National Guard, that's fine—inside state lines. The National Guard is often deployed for things like flood control, search and rescue, even local riot control. Payment for all those mobilized Guardsmen comes out of the state coffers. But, there is a loophole.

These nominally military forces are allowed to enforce laws and maintain public order. That is because these are "state troops" (Title 32) at the time, they are also exempt from the Posse Comitatus Act. Nevertheless, mobilizing troops is expensive. That's why you often see governors immediately request that parts of their states be declared "federal disaster zones" when a hurricane hits. When that happens, the National Guard becomes "federalized," and voila, the federal government foots the bill.

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This clause can work both ways. Back in 1957, the governor of the State of Arkansas tried to use his National Guard to stop desegregation at Little Rock High School. In response, President Dwight Eisenhower federalized the entire Arkansas National Guard, taking all 10,000 of them out of the hands of the governor and effectively converting them from Title 32 to Title 10 for the duration.

The draft memo exposed by the Associated Press on Friday posited that the Department of Homeland Security should reach out to 11 states listed in the memo and see if their governors would activate their National Guard units in order to give the president's executive order on increased deportations a significant boost in real power. This would circumvent Posse Comitatus by calling up troops, but not putting them under federal control. It would merely be an act of "coordination." That would allow them to stay Title 32, and therefore allow them to conduct police-like actions.

I don't believe it will happen.

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It won't happen because somebody realized that this would be political poison (as the publication of this working draft memo has demonstrated). But the real sticking point is that it would push the cost of the mobilized troops onto the state governments, and, in particular, state governments that are in poor financial shape. The memo specifically identifies "states on the border" (with Mexico), and the states immediately adjoining them. Of those states, at least four already run budget deficits. Mobilizing even 10,000 troops for six months each could financially break those state government budgets. What governor is going to sign up for that?

What's really worrisome in this memo is the provision for the "activation" (read: deputization) and empowering of "State Guard units," not the National Guard. "State Guard units" refers to the unpaid, uncontrolled, militia types—Cliven Bundy and co. In most cases, these are self-declared "state militias" and "state defense forces" and only nominally under anyone's control, and nowhere near under the restrictions of Posse Comitatus.

So, why ask the governors to call out their troops?

Because to empower the National Guard as troops under the command of President Trump would require both the states and Congress to grant him a waiver to Posse Comitatus. Then he would need Congress to pay for the activation of all those men and women.

Not likely to happen. But at least now you know what to look for if he tries this again in another way.

As always I can be reached at R_Bateman_LTC@hotmail.com

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