With ICE Moving at a Glacial Pace (Through No Fault of Its Own), Can the U.S. Military Trigger an Avalanche of Deportations?

Last month, Reuters reported that Caleb Vitello, then U.S. Immigration and Customs Enforcement’s (ICE) acting director, “has been reassigned as arrests and deportations have lagged expectations”. President Trump’s border “Czar” Tom Homan has indicated his unhappiness with the number of ICE arrests of removable aliens. They are three times what they were a year ago, and while “three times higher is good”, Homan is “not satisfied”. “We need to increase the arrests of illegal aliens, especially those with criminal convictions.”

In February — the first full month of President Trump’s second term — the number of alien “book-ins” to detention following ICE arrests increased by 74 percent from February 2024 and 83 percent from February 2023. But with my colleagues Steven Camarota and Karen Zeigler concluding that the illegal alien population likely neared 16 million as the Biden mal-administration drew to a close, arrests will need to go up by a lot more than 74 or 200 percent to result in an appreciable retreat from the Biden deluge’s high-water mark.

Members of the armed forces are not going to serve as immigration judges. But they can help track down removable aliens. They can help detain them. And they can help remove them.

But how? Consider that the high-water mark for removals of aliens apprehended in the interior of the U.S. (rather than at the border) was only 237,941 in 2009. Consider that there is a backlog of 3.7 million cases in the Department of Justice’s immigration courts. Consider that over 1.4 million non-detained aliens already ordered removed are at large in our communities, as are over 6.2 million other aliens in removal proceedings — and over 420,000 of these aliens roaming free are convicted criminals. Consider that DHS’s Office of the Inspector General has concluded that “DHS has limited ability to track [the] post-release addresses accurately and effectively” of the millions of aliens apprehended and then released by the Biden administration. Consider that, as the House Committee on Homeland Security has concluded, “continuously detained aliens have historically almost always been repatriated, while nondetained aliens have rarely been”. And consider that sanctuary states and cities openly violate federal law to impede the removal of aliens.

Given these impediments, the practical ability of DHS to carry out truly large-scale removals on its own may be doubted — through no fault of its own. Keep in mind that, as of the end of FY 2024, ICE’s Enforcement and Removal Operations component had only about 6,000 law enforcement personnel nationwide.

The U.S. military could provide a key assist in DHS’s monumental task. Of course, members of the armed forces are not going to serve as immigration judges. But they can help track down removable aliens. They can help detain them. And they can help remove them.

But what about the “Posse Comitatus Act” — doesn’t it criminalize use of the military for domestic law enforcement purposes? Wasn’t it enacted in 1878 to prevent domestic tyranny?

No and no.

As I have written, the PCA specifically allows for the use of the military “to execute the laws” when expressly authorized by Congress or the Constitution, and it was pushed through because of racism, pure and simple. The law arose out of anger, largely Southern, over the use of federal troops to combat the Ku Klux Klan’s post-Civil War reign of terror, to protect the lives and rights (especially the right to vote) of freed black slaves.

President Trump will have ample justification to use the Insurrection Act to allow for military assistance with large-scale deportation efforts.

Beginning in 1792, Congress has repeatedly passed and strengthened legislation, commonly known as the “Insurrection Act”, to expressly allow state militias and/or the U.S. armed forces to execute federal law. The Act now provides in part that “Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion … make it impracticable to enforce the laws of the [U.S.] … by the ordinary course of judicial proceedings, he may call into Federal service such of the militia … and use such of the armed forces, as he considers necessary to enforce those laws,” and provides that the president shall use these forces to “take such measures as he considers necessary to suppress … any insurrection, domestic violence, unlawful combination, or conspiracy” that “opposes or obstructs the execution of the laws of the [U.S.] or impedes the course of justice under those laws”.

In 1871, anti-Reconstruction members of Congress, often apologists for slavery, vociferously opposed President Ulysses S. Grant’s urgent call to strengthen the Insurrection Act, claiming that the proposed legislation represented “sheer wickedness”, was “inspired by bitterness and hate”, would lead to “despotism”, and would convert the Constitution into “a weapon for the destruction of the liberties of all the people”. Sadly, many commentators today besmirch the Insurrection Act with the same hyperbole and fearmongering.

It is indeed true that the Supreme Court and legal scholars agree that the Insurrection Act grants a president an extraordinary amount of power and discretion in the use of such power. But have presidents used this power for good or for wicked and despotic ends? George Washington relied on it to put down the Whiskey Rebellion. Ulysses S. Grant used it to combat the Ku Klux Klan. Grover Cleveland used it to protect Chinese immigrants from mob violence.¹ Dwight Eisenhower used it when the governor of Arkansas tried to prevent black students from enrolling at an all-white high school in Little Rock. John F. Kennedy used it when an armed mob tried to prevent James Meredith from attending the University of Mississippi. Lyndon Johnson used it to protect civil rights marchers as they traveled from Selma to Montgomery, Ala.

President Trump will have ample justification to use the Insurrection Act to allow for military assistance with large-scale deportation efforts. After all, in In re Debs in 1895, the Supreme Court ruled that “under the Constitution, power over … transportation of the mails is vested in the national government”, and thus “that the national government may prevent any unlawful and forcible interference therewith”, with the army and the militia “at the service of the Nation to compel obedience to its laws”. The Constitution also vests Congress with plenary power over immigration and requires the president to take care that the laws be faithfully executed.

Enforcement of the immigration laws would seemingly rise to the same level of national importance as delivery of the mail.

End Note

¹ “Federal Aid in Domestic Disturbances 1787-1903”, prepared under the direction of Major General Henry C. Corbin, adjutant general, U.S. Army, by Frederick T. Wilson, chief of division, Adjutant General’s Office) at 186 (1903), reprinted in “Federal Aid in Domestic Disturbances 1903-1922”, prepared under the direction of the secretary of War by the Office of the Judge Advocate General, 67 Sen. Doc. 263 (1922).