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California Governor Jerry Brown sent a letter to the Trump administration acquiescing to the request by President Trump to send national guard troops to the United States-Mexico border. Governor Brown said in the letter that the president may not use his troops for any “border enforcement activities,” which also would include a ban on building a wall and no apprehension of border crossing illegal aliens.

Dear Secretary Nielsen and Secretary Mattis: Pursuant to your request, the California National Guard will accept federal funding to add approximately 400 Guard members statewide to supplement the staffing of its ongoing program to combat transnational crime. This program is currently staffed by 250 personnel statewide, including 55 at the California border. Your funding for new staffing will allow the Guard to do what it does best: support operations targeting transnational criminal gangs, human traffickers and illegal firearm and drug smugglers along the border, the coast and throughout the state. Combating these criminal threats are priorities for all Americans – Republicans and Democrats. That’s why the state and the Guard have long supported this important work and agreed to similar targeted assistance in 2006 under President Bush and in 2010 under President Obama. But let’s be crystal clear on the scope of this mission. This will not be a mission to build a new wall. It will not be a mission to round up women and children or detain people escaping violence and seeking a better life. And the California National Guard will not be enforcing federal immigration laws. Here are the facts: there is no massive wave of migrants pouring into California. Overall immigrant apprehensions on the border last year were as low as they’ve been in nearly 50 years (and 85 percent of the apprehensions occurred outside of California). I agree with the Catholic Bishops who have said that local, state and federal officials should “work collaboratively and prudently in the implementation of this deployment, ensuring that the presence of the National Guard is measured and not disruptive to community life.” I look forward to working with you on this important effort. Sincerely, Edmund G. Brown Jr.

As Governor Brown stated, California’s National Guard “will not be enforcing federal immigration laws,” which is his right as commander of the guard for that state. What it reveals is that the governor might be anticipating that President Trump will ask that the governor’s use National Guard troops for border security operations.

Under the law, President Trump can call up National Guard troops under Title 10 of the U.S. code. He can also ask that the states call up their own National Guard troops under Title 32 of the U.S. code.

What’s the difference between the two?

Title 10 is governed by the Posse Comitatus Act and disallows any military unit from performing any action that would enforce the domestic laws of the United States. Title 10 grants the President, through the Secretary of Defense, the ability to command and control the National Guard directly.

Title 32 invocations of National Guard troops have no such limitation against enforcement of domestic laws. The states do remain in control of the National Guard troops, but they receive federal funding and generally act within a mission provided by federal authorities.

Can Texas and Arizona National Guard troops act as border patrol agents? Why yes, yes they can because Trump didn’t invoke Title 10 to draw up the National Guard. He asked the states to do so under Title 32.

Congress also specifically authorized National Guard troops to act as border enforcement agents in 2004. A few years later, President George W. Bush invoked Title 32 to send National Guard troops to the U.S.-Mexico border.

In 2004, Congress passed another law that could arguably provide federal funding for National Guard personnel conducting border security operations under Title 32.40 In the event of a “homeland defense activity,” Chapter 9 of Title 32 of the U.S. Code authorizes the Secretary of Defense to provide federal funding at his discretion to a state, under the authority of the governor of that state, for the use of its National Guard forces if their participation is “necessary and appropriate.”41 A “homeland defense activity” is statutorily defined as “an activity undertaken for the military protection of the territory or domestic population of the United States … from a threat or aggression against the United States.”42 Although a deployment of National Guard troops for border security purposes could arguably be an activity “undertaken for the military protection” of a “domestic population,” it is unclear whether the porous nature of the border or illegal entry of aliens is the type of “threat” or “aggression” that would be “necessary and appropriate” for National Guard troops.

The law requires a crisis or event that demands a “homeland defense activity,” which is why the Trump administration issued press statements from a few agencies over the past several days highlighting the crisis on the southern border.