Can the National Guard troops being deployed to the border arrest and detain people? Only if Gov. Rick Perry says they can. But experts do have some concerns about giving law enforcement powers to a reserve military force.
From a legal standpoint, the National Guard has no authority to enforce federal immigration law, because the troops will be operating under the governor’s authority. In this case, Gov. Perry has called them up, and not President Barack Obama.
"In that instance, as the commander-in-chief, he can order them to do just about anything, including state law," says Michael R. Smith, director of the National Center for Border Security and Immigration and the University of Texas El Paso.
Smith says when the governor calls up the Guard, the Posse Comitatus Act, the 19th-century law that blocks military personnel from enforcing civilian law -- but only when called up by the federal government, doesn't apply. Again that’s not the case here.
"In this case it’s a state deployment, so it means Governor Perry can authorize them to apprehend immigrants crossing the border," says University of Texas government Professor Terri Givens.
However, Givens says even Maj. Gen. John Nichols with the National Guard has stressed the troops will help the Department of Public Safety, and not take over on the front lines.
"That’s the idea, that the National Guard would be working closely with DPS to deter and defer, so at least the head of the National Guard is saying he would prefer for National Guard troops to defer those people to allow DPS to make the arrests," Givens says.
National Guard troops aren’t usually trained in law enforcement. David Inserra with the Heritage Foundation says that could present challenges should they be asked to make arrests.
"Most of the National Guardsmen, they’re willing and able to do whatever it takes to help their country and they’re trying to do their best, but if they don’t know exactly what to do in a certain circumstance, it just increases the chance that something can be handled incorrectly," Inserra says.
UTEP's Smith agrees.
"There’s a reason we train police officers in police academies and train them in a certain way, provide them with both practical as well as legal training in what it means to enforce the law," Smith says. "The majority of the Guard troops will not have had the training and that’s of concern."
But Gov. Perry hasn’t explicitly said he will authorize troops to arrest or detain anyone – so far. The deployment of up to 1,000 troops will take about 30 days.