The southern border state of Texas has authorized “several hundred” of its National Guard soldiers to carry out immigration enforcement, a job that has long been reserved for law enforcement.
The federal U.S. Customs and Border Protection has deputized a wide array of state soldiers to do the job of Border Patrol agents as the Trump administration simultaneously expands its pool of federal police who can apprehend and remove illegal immigrants, the Texas Military Department told the Washington Examiner this week.
The state disclosed that 300 members of the Texas National Guard were deputized in a “historic ceremony” in the Rio Grande Valley of South Texas as of Feb. 18.
The following day, another 290 members of the Guard were sworn in to carry out the immigration duties of federal agents.
Another historic ceremony at Shelby Park in Eagle Pass, TX as 290 more Texas National Guard members are deputized by Border Patrol to enforce immigration laws and secure our Southern Border. pic.twitter.com/sWNjItSaqv
— Texas Military Dept. (@TXMilitary) February 20, 2025
Border Patrol Chief Mike Banks led at least one of the deputization ceremonies.
Today, I had the privilege of administering the oath of office and officially deputizing 300 Texas Army National Guardsmen under Title 8 authority to support Border Patrol's mission. This partnership with the Texas Military Department enhances our joint effort to protect America. pic.twitter.com/C2Bw3gqqeo
— Acting Chief Patrol Agent Milton Moreno (@USBPChiefDRT) February 18, 2025
The state also promised more deputizations in the coming days and weeks.
The newly deputized soldiers are now training with CBP and conducting security patrols with Texas law enforcement and federal CBP units across wide areas, according to TMD.
“The Texas Military Department will continue focusing on multi-agency operations to leverage joint capabilities and refine tactics, techniques, and procedures to secure the Texas-Mexico border,” the department said in a statement.
The decision to deputize the state military came straight from the top of the Department of Homeland Security, whose secretary, Kristi Noem, announced on Feb. 3 that she had approved deputizing Texas soldiers as a way “to help secure the border” by creating “a force multiplier to arrest the bad guys and keep our nation safe.”
However, the decision to deputize military soldiers poses the question of whether they are wading into murky legal territory.
The Posse Comitatus Act of 1878 gave military troops the right to defend themselves. It was intended to ensure federal troops did not have the power to act as law enforcement in states.
The law would be violated if troops either “perform tasks assigned to an organ of civil government” or “perform tasks assigned to them solely for purposes of civilian government,” according to the Congressional Research Service.
Only federal military personnel fall under the Posse Comitatus Act, such as the Army, Air Force, Marines Corps, and Navy. The Coast Guard is exempt because although it is a member of the federal armed forces, it has authority in the law to enforce federal laws and is housed under DHS, not the Defense Department.
The Washington-based Brennan Center for Justice’s Joseph Nunn has previously noted that members of the National Guard are “rarely covered” by Posse Comitatus “because they usually report to their state or territory’s governor.”
“That means they are free to participate in law enforcement if doing so is consistent with state law. However, when Guard personnel are called into federal service, or ‘federalized,’ they become part of the federal armed forces, which means they are bound by the Posse Comitatus Act until they are returned to state control,” Nunn wrote in a 2021 explanation of the law.
In the case of deputization, the National Guard is still operating under the authority of the governor, who is having them perform law enforcement duties within the state. Texas will pay for the deputized Guardsmen as they carry out Title 8 immigration authorities, similar to federal agencies that are funding their own deputized employees.
The Texas National Guard has deployed soldiers to the southern border by the thousands since early 2021, when Gov. Greg Abbott (R-TX) launched a border security mission, Operation Lone Star.
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Under the operation, more than 10,000 state and local police, as well as guard members, were dispatched to the border to assist federal law enforcement as record-high numbers of illegal immigrants crossed and were arrested by federal agents.
Just in the first year, National Guard members deployed in Texas had apprehended more than 32,000 people. Because they were not deputized to make arrests, illegal immigrants were subsequently turned over to other law enforcement agencies.