Adam Isacson
Adam Isacson
Director for Defense Oversight
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With this series of weekly updates, WOLA seeks to cover the most important developments at the U.S.-Mexico border. See past weekly updates here.
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(For a fuller discussion of the state of play in Los Angeles and the implications for U.S. civil-military relations, see the analysis that WOLA published on June 12.)
A sharp increase in Immigration and Customs Enforcement (ICE) operations triggered protests in and near downtown Los Angeles. The Trump administration responded by deploying thousands of troops over the objections of state and local authorities. Late on June 12, a federal judge ruled that the administration’s military deployment is unlawful.
In a White House meeting on May 21 that was reportedly “tense,” White House Deputy Chief of Staff Stephen Miller and Department of Homeland Security (DHS) Secretary Kristi Noem demanded that ICE increase the tempo of its arrests of undocumented migrants to 3,000 people per day nationwide. That would be a giant jump: “during Trump’s first 100 days, ICE arrested 66,463 illegal immigrants,” or 664 per day, Fox News noted.
In order to meet these stratospheric new quotas, Miller essentially ordered the agency to abandon its focus on undocumented migrants with final removal orders or criminal backgrounds. According to the Wall Street Journal, the architect of the White House’s migration crackdown told agents to “just go out there and arrest illegal aliens,” suggesting that they target 7-11 convenience stores and Home Depot hardware stores, where undocumented day laborers often congregate to seek work.
In late May, Miller publicly confirmed on Fox News that ICE’s new target was 3,000 arrests per day. By June 9th, Camila Montoya-Galvez of CBS News revealed on Twitter, ICE arrests had not yet reached 3,000 but had jumped substantially. “Over the past 7 days, ICE has averaged about 1,400 daily arrests, a 112% increase from the first 100 days of President Trump’s second term… On two days this past week, ICE arrests surpassed 2,000 in 24 hour time periods.”
The resulting increase in arrests at immigration court facilities, churches, schools, and workplaces has raised tension nationwide, but most acutely in Los Angeles, California. June 6 raids in the city’s garment district and at a Home Depot in the Westlake neighborhood triggered mass protests that continued throughout the week. Though there have been notable lapses—none involving fatalities or use of firearms—the protests have been largely nonviolent and geographically limited.
While she recognized the Mexican-American community’s right to protest, the president of Mexico, Claudia Sheinbaum, cautioned against violence. “We are not in agreement with violent acts as a form of protest,” Sheinbaum said on June 9. “We call on the Mexican community to act in a peaceful manner and not to fall into provocations.” A day later, DHS Secretary Noem triggered diplomatic tensions by telling reporters, “Claudia Sheinbaum came out and encouraged more protests in L.A., and I condemn her for that.”
On June 7, the White House responded to the protests by ordering 2,000 California National Guard troops to deploy to Los Angeles in a federal role, over the strong stated objections of Governor Gavin Newsom (D), Mayor Karen Bass (D), and the Los Angeles Police Department, which stated that it had the situation under control. “To the extent that protests or acts of violence directly inhibit the execution of the laws, they constitute a form of rebellion against the authority of the Government of the United States,” read a White House memo, which claimed that the troops were needed “to temporarily protect ICE and other United States Government personnel who are performing Federal functions, including the enforcement of Federal law, and to protect Federal property.”
The troops are in addition to ICE personnel, Los Angeles police, and federal law enforcement agencies including a large contingent of Customs and Border Protection (CBP) officers and Border Patrol agents. CBP’s Air and Marine Operations division confirmed that it is also flying some of its fleet of Predator drones above Los Angeles (the agency has at least 10 Predators).
President Trump escalated further over the course of the week, calling up 2,000 more National Guard personnel in federalized or “Title 10” status, along with 700 active duty Marines. The U.S. Northern Command, which manages military activities in the United States, Canada, Mexico, and the Bahamas, is calling this approximately 4,700-person unit “Task Force 51.“ It reported on June 11:
As of today, approximately 2,800 service members are deployed to the greater Los Angeles area. This includes:
This “was the first time in more than half a century that a president mobilized National Guard troops without a governor’s consent,” the New York Times and other outlets observed. At a June 10th hearing in the House of Representatives, Defense Secretary Pete Hegseth, after consulting the Pentagon’s acting comptroller, said that the Task Force 51 deployment was costing $134 million. Defense Department spokesman Sean Parnell endorsed an ABC News tweet noting that more U.S. troops were deployed to Los Angeles than are now serving in Syria and Iraq combined.
The Posse Comitatus Act of 1878 prohibits the U.S. military, including the federalized National Guard, from carrying out domestic law enforcement functions, with just a few exceptions. The exception that the Trump administration cited in its June 7 memo is Section 12406 of Title 10 of the U.S. Code. That 1903 law allows the president to call up the National Guard for internal missions at times of invasion, rebellion, or civilian forces’ inability to enforce the law. Section 12406 states that National Guard deployment orders “shall be issued through the governors of the States,” but Gov. Newsom was cut out of the process and filed suit in federal court to stop it.
Section 12406 applies only to the National Guard. It is not clear what legal authority the Pentagon invoked for the 700 Marines in Task Force 51. At a June 11th Senate hearing, Defense Secretary Hegseth was unable to name the law he was invoking to authorize the deployment of regular military personnel on a domestic mission.
The Pentagon may be relying on legal arguments, dating back at least to 1971, about an inherent authority to use the military to protect federal property and functions. The Los Angeles deployment stretched that authority to its limits by allowing military personnel to accompany ICE agents as they carry out arrests of civilians. While rules of engagement did not permit National Guard and Marines to carry out arrests, they allowed them to forcefully hold civilians, including U.S. citizens, until civilian law enforcement can perform arrests.
This claim of authority to use soldiers to protect federal property and functions also underlies powers granted to soldiers along a fringe of borderline territory stretching from the Arizona-New Mexico border to Fort Hancock, Texas, about 50 miles east of El Paso. The Trump administration is considering these “National Defense Areas” to be extensions of existing military bases, which empowers military personnel to detain any undocumented migrants they find until they can be handed off to CBP, under the pretext that the migrants are trespassing on military property. “Soldiers notify the Border Patrol so its agents can conduct the apprehension within a three-minute span,” an Army spokesperson told Border Report. “Sometimes, the soldiers hold border crossers for those few minutes.” (Meanwhile, the first person to stand trial for trespassing in the Texas part of the new military zone, a woman from Peru, was acquitted.)
Another legal authority does exist for using active duty military personnel to confront civilians on U.S. soil, but it is considered something of a “nuclear option.” The broadest exception to the Posse Comitatus Act is the Insurrection Act of 1807, which empowers the president to use the military domestically, with few restrictions, whenever he “considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws.” The Insurrection Act has only been invoked 30 times in U.S. history, most recently a brief intervention during the 1992 Los Angeles riots.
Writing about Stephen Miller, the Atlantic’s Nick Miroff noted that “for years he has longingly discussed the wartime power.” Still, the administration has been reluctant to employ the Insurrection Act outright, even as Donald Trump called Los Angeles protesters “insurrectionists” on June 9.
For now, soldiers in Los Angeles have operated without live ammunition loaded in the chambers of their weapons and are not using rubber bullets or pepper spray. Those rules, ABC News reported, would change if President Trump were to invoke the Insurrection Act.
A Just Security analysis from the Brennan Center’s Liza Goitein concluded that the administration was using Section 12406 as “‘The Insurrection Act’ by any other name,” while a June 9 CNN analysis speculated that administration officials might “change their calculus” and be more willing to invoke the Act if Gov. Newsom’s lawsuit succeeds.
At least at the district court level, the lawsuit has now succeeded. On the evening of June 12, Judge Charles Breyer ruled that the National Guard deployment was unlawful and issued a temporary restraining order halting it. (His ruling did not cover the Marine deployment, as the Marines had not yet arrived on the streets of Los Angeles.) Breyer found that conditions of “rebellion” did not exist and that orders to deploy had not been issued through Gov. Newsom, as Section 12406 specifies.
“The Court,” Breyer wrote, “is troubled by the implication inherent in Defendants’ argument that protest against the federal government, a core civil liberty protected by the First Amendment, can justify a finding of rebellion.”
Other authorities do exist for using military personnel on internal missions like immigration enforcement. In May, DHS asked the Defense Department to lend 20,000 National Guard troops to support the Trump administration’s nationwide mass deportation effort. NPR reported on the request:
The memo, dated May 9, from Andrew Whitaker, the executive secretary at DHS, says the department will need up to 3,500 Guard personnel for its requirement to “Attempt to Locate — Fugitives.” Another 2,500 Guard soldiers would be needed for detention support.
The memo says up to 10,000 troops would be needed for transportation support, including “intra-and inter state transport of detainees/unaccompanied alien children.” And another 1,000 troops would be used for such duties as document translation and interview assistance.
“National Guard troops,” NPR added, “would be used in immigration-enforcement activities, including in ‘night operations and rural interdiction,’ as well as ‘guard duty and riot control’ inside detention facilities.”
This would most likely occur if the National Guard troops remained under the command of state governors—presumably governors from the Republican Party—who would lend their personnel to the federal government, even as the governors remained formally in command. The National Guard personnel could be assigned to the immigration mission if deputized under “287(g) agreements” that allow state and local law enforcement to enforce federal immigration law in coordination with ICE.
Much analysis of the Trump administration’s rush to use these domestic military authorities voiced concerns about the health of democracy in the United States. “The goal, said some former military officials and experts on civilian-military relations, may be to get Americans used to seeing troops in the streets of major cities, opening the door for Mr. Trump to use his powers as commander in chief more aggressively to quell unrest and dissent,” the New York Times reported. “The principle expressed in the Posse Comitatus Act has been a core feature of Anglo-American legal and political thought for centuries, dating back to the Magna Carta,” warned the Brennan Center’s Goitein at Just Security. “As history has repeatedly shown, there is little that threatens individual liberty or facilitates tyranny more than the unchecked ability of a country’s leader to turn the military inward against the people.”
Months after his erroneous expulsion to a maximum security prison in El Salvador made his case a top U.S. national news story, Kilmar Abrego Garcia was abruptly flown back to the United States on June 6. He is now in a Tennessee jail pending trial, as the Trump administration secured an indictment against him for migrant smuggling based on a 2022 traffic stop in that state.
Abrego Garcia is a 29-year-old sheet metal worker, married to a U.S. citizen, who was living in Maryland. He arrived in the United States undocumented in 2011; after an 2019 arrest for loitering in a Maryland Home Depot parking lot, an immigration judge granted him withholding of removal to El Salvador, finding that his life would be at risk there. On March 15, Abrego Garcia was among those aboard three planes carrying Venezuelan and Salvador migrants whom the Trump administration sent to El Salvador, where nearly all remain in that country’s maximum-security Center for the Confinement of Terrorism (CECOT) prison. It later emerged that he was expelled in error, and a federal judge, generally backed up by a Supreme Court decision, demanded that the Trump administration facilitate his return. The administration had been reluctant to do this.
The administration relented—but only by accompanying Abrego Garcia’s return with an indictment for allegedly transporting undocumented migrants. In November 2022, Tennessee police pulled Abrego Garcia over for speeding as he was driving a van transporting at least eight people. Abrego Garcia said that the people aboard were construction workers moving from a job site in St. Louis to a new site elsewhere. The van’s registered owner, who is now in federal prison, reportedly told investigators that he had hired Abrego Garcia for his Baltimore-based “taxi service” that transported undocumented migrants from Texas.
On May 21, the day that the indictment was issued, the Chief of the Criminal Division of the U.S. Attorney’s Office for the Middle District of Tennessee, Ben Schrader, resigned—an indicator that the Justice Department’s case against Abrego Garcia may be weak.
On June 7, a tired-looking Abrego Garcia appeared in a Tennessee courtroom and said that he understood the charges against him. He has been unable to see his wife and children. “After these three months, the government is still delaying reunification of this family. They are continuing to play games with the lives of Jennifer and with the lives of these three children,” Ama Frimpong, legal director of CASA of Maryland, told Salon. “This family has suffered enough.”
“By bringing him back to the United States, the Trump administration has climbed down from the court-defying pedestal where Vice President J. D. Vance, the adviser Stephen Miller, and Cabinet officials perched for months,” wrote the Atlantic’s Nick Miroff. Pollster G. Elliot Morris published an analysis finding that the more media coverage Abrego Garcia’s case received, the deeper polls showed Donald Trump’s approval rating on “immigration” dropping; when coverage eased, Trump’s rating recovered somewhat.
The administration also brought back from Mexico a Guatemalan man who was wrongfully deported there. The man, known only by the initials O.C.G., is gay and was seeking asylum after fleeing Guatemala. ICE deported him instead to Mexico, even though he said he had been sexually assaulted there during his journey to the United States and feared for his life in Mexico. ICE blamed O.C.G.’s removal on a software problem, Politico reported, and a federal judge had ordered the administration to facilitate his return.
There is no apparent progress on facilitating the return of “Cristian,” a young Venezuelan man who was sent to the CECOT on March 15 even though a judge had ruled that he, like many other asylum seekers who had arrived in the United States as unaccompanied children, was part of a class of people who could not be removed from the United States. Maryland federal judge Stephanie Gallagher ordered the government to facilitate Cristian’s return on April 23, but he remains in El Salvador, probably in the CECOT.
On June 9, a federal judge in El Paso became the latest of several judges to challenge the Trump administration’s March 15 invocation of the Alien Enemies Act (AEA) to remove at least 138 Venezuelan men to El Salvador with no due process. The 1798 wartime law, Senior Judge David Briones said, does not allow a president to “unilaterally define what constitutes an invasion, summarily declare that a foreign nation or government has threatened or perpetrated an invasion or predatory incursion of the United States, identify alien enemies subject to detention or removal, and summarily remove them.”
In early June James Boasberg, the Washington DC federal judge whose March 15 order to stop the El Salvador flights went unfulfilled, found that, in line with an April 7 Supreme Court decision, the administration must guarantee due process for those sent to the CECOT under the Alien Enemies Act. Boasberg had set a June 11 deadline for the administration to explain how it would go about guaranteeing this retroactive due process. On June 10, however, the DC Circuit Court of Appeals— whose current three-judge panel is made up entirely of Trump appointees— administratively stayed Judge Boasberg’s order, putting it on hold while the administration’s appeal goes forward.
“As a result of this administrative stay, the people sent to CECOT without due process on March 15 will be waiting longer,” wrote legal analyst Chris Geidner. “They will be waiting at least another week and a half before their lawyers even find out if the D.C. Circuit panel is going to make those people wait yet longer still to get the process that the Supreme Court unanimously held on April 7 was due to anyone being removed under the AEA.”
Meanwhile, a lengthy Time report by Eric Cortellessa and Brian Bennett revealed that Venezuelans held at the CECOT have slightly better conditions than those held in the super-austere cell blocks that hold Salvadoran prisoners. “The detainees are allowed blankets and pillows. They eat fast food. They are rambunctious and defiant.” This is not an act of kindness, however. Meals like “a hamburger, French fries, ketchup packs, and Milano cookies” are part of a diet “devised by [Salvadoran President Nayib] Bukele, who instructed they be fed fast food to gain weight, as a way of trolling critics who argue CECOT’s conditions are inhumane.”
The Trump administration’s June 4 travel ban, halting entry into the United States of most citizens from 19 countries, went into effect at 12.01 a.m. on June 9. With few exceptions, citizens of Afghanistan, Myanmar, Chad, the Republic of the Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan, and Yemen may no longer enter the United States. Citizens of Burundi, Cuba, Laos, Sierra Leone, Togo, Turkmenistan, and Venezuela face significant restrictions on entry, unless they already hold visas.
The American Immigration Council estimated that “the proclamation has the potential to block at least 34,000 immigrant visas and over 125,000 non-immigrant visas from being issued each year.” A WOLA analysis observed, “Some legal analysts believe the current travel ban was written in such a way that it will be harder to block in court.”
On June 12 DHS began issuing notice to more than 530,000 citizens of Cuba, Haiti, Nicaragua, and Venezuela in the United States that their work authorizations were revoked and they must leave the country, due to the administration’s cancellation of a humanitarian parole program that the Biden administration had offered to those countries’ citizens in order to discourage border arrivals.
On May 30, the Supreme Court refused to suspend this cancellation while lower court challenges proceed. As a result, Jack Herrera wrote at the New Yorker, “hundreds of thousands of illegal immigrants appeared in the United States. I’m using the term ‘illegal immigrants’ because these people are not undocumented. They have papers. They arrived on planes, months ago, with the government’s permission.”
It is not clear how many of the 530,000 parole recipients are now undocumented, as many likely had applied for other asylum or some other available status. But the DHS termination notices surely apply to a large number who, after filling out applications and securing sponsorships, believed they had permission to live and work in the United States for two years.
In San Diego, legal service providers filed suit on behalf of 11 asylum seekers who were denied access to the U.S. asylum system by the Trump administration’s January 20th shutdown of virtually all asylum processing at the U.S.-Mexico border. The litigation, brought by Democracy Forward, Al Otro Lado, Haitian Bridge Alliance, and others, is the second known lawsuit against the asylum ban, accompanying the RAICES v. Noem case that has been moving through Washington, D.C. District Court since February.
CBS News revealed a new addition to the list of countries to which the Trump administration is seeking to deport people. Kosovo, the landlocked former Yugoslav republic, agreed to host 50 U.S. deportees from other countries.
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