President Donald Trump this week presided over an explosive meeting on a new Cabinet order granting the troops deployed at the southern border the right to use lethal force to defend border patrol agents.
Several White House aides and external advisers who have supported the president’s hawkish immigration agenda attended the Monday meeting, which devolved into a melee pitting two of Trump’s embattled aides, White House chief of staff John Kelly and Department of Homeland Security Kirstjen Nielsen, against other attendees, according to three people briefed on the exchange.
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Kelly and Nielsen argued against signing the declaration, which granted the military broad authority at the border, telling the president that the move was beyond his constitutional powers. They were vocally opposed by, among others, senior policy adviser Stephen Miller; Chris Crane, president of the National Immigration and Customs Enforcement Council; and Brandon Judd, president of the border patrol union. Also present was Vice President Mike Pence, who did not take a stand on the issue, according to one of the people briefed on the debate.
The bitter dispute ended Tuesday evening when Kelly, on Trump’s orders, signed a Cabinet declaration granting the military the disputed authority. The move ran afoul of the guidance offered by the White House counsel, Emmet Flood, who cautioned that it was likely to run into constitutional roadblocks, according to a second source familiar with the conversations.
The signing of the declaration, which vests Nielsen with the power to request military action to protect U.S. Customs and Border Protection agents, appeared to take Defense Secretary James Mattis by surprise. It’s an indication of the extent to which immigration policy in the Trump White House is engineered by a small group of hawks, including Miller — and, as a result, has often caught other stakeholders off guard.
Mattis appeared not to have seen the order before it was signed, telling reporters at the Pentagon on Wednesday, “I’m reviewing that now.” He also suggested he was aware that Kelly had signed the order at Trump’s insistence: Kelly “has the authority to do what the president tells him to do,” Mattis said, adding that regardless of what he himself is asked to do, he will not order troops to violate the law.
“The brave men and women at Customs and Border Protection willingly put themselves in extremely dangerous situations every day to protect Americans and their families,” said deputy press secretary Hogan Gidley in a statement. “The President’s authorization ensures the Department of Defense can step in to protect those who protect us.”
The move comes at a time of intense speculation over both Kelly’s and Nielsen’s future in the administration. Since the midterm elections, the president has told friends and associates that he is intent on firing Nielsen, but has yet to make a move. He has criticized her repeatedly for what he views as her weakness on immigration and border issues, matters on which Kelly has repeatedly come to her defense.
Kelly has argued, for example, that Nielsen bears no responsibility for the rising number of apprehensions at the southern border, and White House aides speculated that he had signed a declaration he personally opposed — and that empowered her to take actions she had also resisted — in another effort to protect her position.
The president’s move on Tuesday is also illustrative of the extent to which, on immigration in particular, he has stretched the limits of his constitutional powers, preferring to issue executive orders rather than work through Congress. It’s an instinct that has been encouraged by advisers like Miller, who have pointed out that previous presidents have extended the powers of the executive branch further.
A federal judge on Tuesday temporarily suspended an executive order that denies asylum to all migrants who cross the border illegally, and a federal appeals court earlier this month ruled that Trump’s decision last year to end the Deferred Action for Childhood Arrivals program, which granted legal status to children brought into the country illegally, was unconstitutional.
Some legal experts are saying the same about Tuesday’s declaration, arguing that it violates the Posse Comitatus Act, a federal law that prohibits the U.S. military from acting as law enforcement agents on American soil. A White House official said the Justice Department supports the measure, arguing that it is “consistent with the protections offered to federal personnel … in prior instances.”
“We’ll decide if it’s appropriate for the military, and at that point, things like Posse Comitatus obviously are in play,” Mattis said. “We’ll stay in strict accordance with the law.”
The tense White House meeting came after the commander overseeing the mission at the southern border, Army Lt. Gen. Jeffrey Buchanan, told POLITICO earlier this week that the 5,000-plus troops deployed there did not have the authority to use lethal force — or to conduct any law enforcement activity on U.S. soil.