DHS tells state attorneys general the Guard can be designated as immigration officers
A confidential Department of Homeland Security memo sent to state attorneys general in April 2025 sets out a legal theory under which National Guard troops deployed outside their home state become federal employees and can then be designated as immigration officers under 8 U.S.C. § 1103(a)(6), and argues that doing so would not violate the Posse Comitatus Act.
What happened
The memo, dated April 17, 2025 and obtained by the watchdog group American Oversight through a Freedom of Information Act request, was issued by DHS's Office of the General Counsel to state attorneys general and authorizes Guard troops to "perform immigration functions" outside of their home state, including arresting unauthorized immigrants, although it is not clear whether troops did so. It reasons that Guard members become federal employees when they are ordered to another state, and that the Homeland Security secretary can designate any federal employee as an immigration officer under 8 U.S.C. § 1103(a)(6). The document further argues that doing so would not violate the Posse Comitatus Act, the law that generally bars the military from carrying out civilian law enforcement inside the United States. The signature block identifying the author is redacted; Joseph Mazzara was DHS acting general counsel at the time. National Guard troops have already supported some Immigration and Customs Enforcement operations, including providing security for agents conducting arrests, but the administration has yet to use Guard members to apprehend and detain targets. DHS, in a statement, said it will "let the letter speak for itself." Chioma Chukwu, executive director of American Oversight, said the theory could be used to put military forces near polling places under the guise of immigration enforcement.
Joseph Nunn, counsel for liberty and national security at the Brennan Center for Justice, said no court has ever treated section 1103(a)(6) as an exception to the Posse Comitatus Act: "No court has ever said that it is an exception to the PCA. You will not find it in the list of statutory exceptions to the PCA." The agency has yet to use the argument in court. The Supreme Court in December limited the administration's ability to use the Guard for immigration enforcement, emphasising that the military can be deployed for law enforcement purposes only when local forces are operating inadequately. Joseph Mazzara went on to serve at Customs and Border Protection before leaving the department.
Why it matters
The Posse Comitatus Act is the standing limit on using soldiers as police inside the country, and it works through the narrowness of its exceptions. What this memo does is locate an exception in immigration law and argue that crossing a state line is the step that converts a Guard member into someone the statute reaches. That is a reading which, if adopted, supplies domestic military policing without an emergency declaration and without invoking the Insurrection Act, which are the two moves that would be visible. A legal theory circulated to the officials who would litigate against it is preparation, and it is the preparation rather than any single deployment that changes what is available later.