Thread by @S_R_Anders

This report from @TaraCopp at @MilitaryTimes that a "cabinet order" has authorized U.S. soldiers on the border to use force is a very big deal—not least because the President is likely making some very extreme legal claims to justify doing so.

militarytimes.com/news/your-mili…

How do we know that's the case?

The posse comitatus makes it a crime to use the U.S. Army for law enforcement purposes, except where "authorized by the Constitution or Act of Congress."
law.cornell.edu/uscode/text/18…

Congress has authorized the military to help with certain law enforcement activities, but the same law expressly bans them from "direct participation" in activities that might require the use of force, like searches, seizures, and arrests.
law.cornell.edu/uscode/text/10…

The only other statutory authorization relevant here allows the use of the military where insurrection or rebellion prevent conventional law enforcement—an extreme position to take in relation to the migrant caravan, if that's what's happening.
law.cornell.edu/uscode/text/10…

If so, however, we should know soon, as the same law requires the President to "immediately order the insurgents to disperse and retire peaceably" by proclamation.
gpo.gov/fdsys/pkg/USCO…

Alternately, if that doesn't happen, President Trump may instead be claiming the Article II constitutional authority to order the military to take these steps, despite legislation to the contrary. This would an extremely broad claim of executive power, with major ramifications.

For these reasons, Congress (and the media) need to push hard to clarify what legal authority Trump is ordering this action under. The answer could have major ramifications for executive authority, beyond even the current border operations.

One last procedural hook: it's very strange for this sort of thing to come through a "cabinet order" signed by Chief of Staff Kelly, not President Trump. That's not a procedure I've ever heard of before.

Regardless, Kelly has no legal authority independent of the President—and certainly none relevant to the above scenarios. Hence I suspect his order nonetheless relies on presidential authority.

Why then wouldn't Trump sign the order himself? Frankly, I don't know—but the fact that violating the posse comitatus act can carry criminal penalties may have something to do with it.

Here is the "cabinet order", acquired by @newsweek. As predicted, it memorializes a Presidential determination, and isn't have Kelly acting under his own authority. Less clear from this memo, however, is the legal authority for this directive.

assets.documentcloud.org/documents/5219…

My best guess as to what's happening here? Two (not mutually independent) possibilities.

First, the language that troops should use force to protect CBP's "performance of the federal function" could be a subtle Insurrection Act justification. If so, then we'd still expect to see a (perhaps equally subtle) proclamation at some point.
law.cornell.edu/uscode/text/10…

More likely, they are simply stretching and interpreting existing regulations, which do allow for the use of force and limited detention in certain circumstances. (h/t @Tmgneff)
info.publicintelligence.net/CommanderDSCAH…

This itself may be concerning. By my understanding, these regs usually cover defensive activities incidental to other legally authorized missions. It's not clear to me that they allow the defensive activities to become the mission, as the President appears to have authorized.

Under this view, the exception could swallow the rule, in that DoD could be deployed to defend any federal activity. This could raise posse comitatus concerns in all sorts of applications (e.g., if troops started defending sheriffs serving warrants or SWAT teams).

This all underscores the need for a clear explanation of the legal authority for these activities, which tread an important line in civil-military relations in our democracy. Where leaders approach that line, we need to know they are doing so consistent with the law.