Nebraska National Guard could be used in immigration crackdown

Could the Nebraska National Guard be used to help arrest and deport people in the country illegally? That’s a possibility, if former President Donald Trump is elected again.

Trump has promised to stage the largest deportation operation in American history.

“We have to get a lot of these people out and we have to get ‘em out fast, because they’re going to destroy our country," Trump said when asked about the topic during last week’s debate.

To do that, Trump has proposed using National Guard troops, along with local police, to help arrest and deport people who are in the country illegally.

Trump advisor Stephen Miller said the Guard will be one of the agencies helping with the planned action. Miller spoke on conservative activist Charlie Kirk’s podcast.

“If President Trump gets reelected, the border is going to be sealed," Miller said. "The military will be deployed. The National Guard will be activated and the illegals are going home."

The Army, and National Guard troops operating under federal control, are generally prohibited from domestic law enforcement. That’s the result of the federal Posse Comitatus law, passed after the last federal troops were withdrawn from the South after the Civil War.

But the prohibition does not apply to National Guard units under state control – for example, Nebraska National Guard troops recentlyly deployed to the Texas-Mexico border. Gov. Jim Pillen said he’s supporting the border-control efforts of Texas Gov. Greg Abbott.

“I've been focused on the border and helping Governor Abbott keep our borders secure and make sure that we stop the sex trafficking, stop the migration of extraordinary drugs coming through, and stop immigration there,” Pillen said.

Having National Guard troops at the border is a practice that stretches back almost 20 years, said former Nebraska Adjutant General Daryl Bohac, who led the Guard from 2013 until his retirement last year. He said on some previous missions, troops have been under federal control, while others have been under what’s called “state active duty,” where Nebraska’s governor is commander in chief.

Bohac said using Guard troops to help arrest and deport people within Nebraska would require them to be under state control.

“What makes the National Guard constitutionally unique, it's not subject to the restraints of Posse Comitatus, which the active component is," Bohac said. "And so we're allowed to function in a law enforcement capacity, or in support of law enforcement."

That’s a role Miller envisions for the Guard in the potential nationwide crackdown on illegal immigration Trump is proposing:

“The Alabama National Guard is going to arrest illegal aliens in Alabama. And the Virginia National Guard in Virginia,” he said.

Miller expects to arrest people living in the country illegally from all over the world.

“You do a raid. Let’s say you go to a food processing facility where you know there’s a lot of illegal workers," he said. "That raid might net illegal aliens – just that one raid – from two dozen countries."

Bohac said he thinks using the National Guard to support law enforcement agencies is appropriate in some circumstances, like helping maintain order during some Black Lives Matters protests in 2020.

But he said using the Guard to help arrest and deport people living in the country illegally could be a different story.

“The use of the National Guard for those kinds of missions could impact the public's view and public trust of the National Guard,” Bohac said.

That impact could be even greater if the Nebraska Guard were to be used in other states – a scenario Miller said could happen.

“If you’re just going to go into an unfriendly state, like Maryland, well then, it would just be Virginia doing the arrests in Maryland," Miller said. "Very close, very nearby."

Bohac said that’s not likely to happen.

“It's just problematic. I mean think about the governor of a state that's not sympathetic -- how would they view another governor sending their National Guard forces in state active duty into another state?” he asked.

But it won’t be military personnel determining whether state-controlled Guard units are used in deportation operations.

“Ultimately the elected officials -- the governors in this case -- are ultimately the ones that have to decide what political risks to take in the use of the National Guard,” Bohac said.

In Nebraska’s case, that decisionmaker would be Gov. Jim Pillen. After a recent townhall meeting in Holdrege, Pillen was asked what his attitude would be toward using the Guard for deportations.

“As Commander in Chief of our Army (and) Air National Guard, if we had a boatload of immigrant terrorists here, I would be totally supportive and getting those people out because there’s a lot of bad people that have come through,” he said.

But when asked about people in general, including meatpacking workers, Pillen stuck to his first answer.

“I said I’d take care of the terrorists,” he said.

A more definitive answer as far as the Nebraska National Guard is concerned may be seen if Trump regains the presidency next year.