Donald Trump and Ron DeSantis at Alligator Alcatraz on July 1.Evan Vucci/AP
Last week, while touring “Alligator Alcatraz,” the new immigrant detention center in Florida, President Donald Trump said he approved of a plan to use National Guard officers as immigration judges in the state.
Florida Gov. Ron DeSantis had been pushing the plan for months as a way to speed up deportations. “He didn’t even have to ask me…He has my approval,” Trump told reporters. Specifically, DeSantis would tap nine National Guard officers from the Judge Advocate General (JAG) Corps, the military’s legal arm.
The catch? Legal experts who have served as JAGs themselves question the plan’s legality. “There is no clear precedent for what DeSantis and the president are doing,” says Mark Nevitt, a law professor at Emory University who served as a Navy JAG.
If Trump were to invoke the Insurrection Act, one law professor warns, “we are in a military state.”
“This would be unlawful,” says Rachel VanLandingham, a professor at Southwestern Law School in Los Angeles who was an Air Force JAG and is now president emerita of the nonprofit National Institute of Military Justice. And it’s “frightening,” because “the use of military courts to hear civilian cases is the essential component of martial law.”
JAGs are lawyers who advise their branch of the military or National Guard on a host of legal matters; they might help commanders follow use-of-force laws, for example, or defend soldiers accused of misconduct. Former JAGs told me that deploying JAGs as immigration judges in Florida would arguably violate the Posse Comitatus Act, which generally bars federal troops from participating in civilian law enforcement or “executing the laws,” unless otherwise authorized by the Constitution or Congress.
“That runs the gamut from making arrests, investigating crimes, and doing police work, all the way up to guarding prisoners or running courts,” says Daniel Maurer, an Army JAG until 2024 who also taught law at West Point and at the Judge Advocate General’s School in Virginia.
The Trump administration has already deployed National Guard officers to Los Angeles for its summer immigration raids over the objections of California Gov. Gavin Newsom, but the administration insisted those troops were there to provide security to ICE agents, not to participate in arrests themselves.
There’s an important exception to the Posse Comitatus Act: Troops may lawfully engage in civilian law enforcement if the president invokes the Insurrection Act, a centuries-old law that allows the commander in chief to deploy military forces within the United States to suppress rebellion or domestic violence. Trump has floated the idea in the past. “But none of the facts on the ground justify doing that,” says Maurer, “which is why they haven’t done it yet.”
If Trump were to invoke the Insurrection Act, adds Raquel Aldana, a law professor at the University of California, Davis, it would be a huge turning point: “The reality is that, once he does, the powers can be unlimited and we are in a military state.”
Importantly, if the JAGs in Florida were to remain under state command, rather than federal command, the Posse Comitatus Act would not apply and they could arguably engage in law enforcement. The National Guard serves a dual role, not only as reserve military power for the feds, but also as a state-based militia that reports to the governor. As immigration judges, however, these officers would work for the Department of Justice’s Executive Office for Immigration Review, which means the Possee Comitatus Act would apply. “They’d be in a federal status and subject to federal authorities,” a spokesperson for the Florida National Guard told me.
The former JAGs I spoke with gamed out several scenarios but could not find any that would clearly authorize JAGs to work as immigration judges, short of Trump invoking the Insurrection Act or Congress passing a law giving them that authority.
If ICE has so much money, “why do they need the military?…My speculation is because it plays better on TV.”
The administration might assert that JAGs turned immigration judges aren’t performing law enforcement duties—they’re not out on the streets acting as police—and therefore aren’t doing anything wrong. “The million dollar question,” says Geoffrey Corn, a former Army JAG who directs the Center for Military Law and Policy at Texas Tech University, is whether JAGs working as immigration judges would be “executing the law” within the meaning of the Posse Comitatus Act.
Courts have held that troops cross the line if they engage in conduct that’s “regulatory, prescriptive, or compulsory in nature.” Immigration judges, in ordering people to be detained or deported, arguably engage in compulsory or regulatory conduct.
On the other hand, Corn says, the Trump administration might point to a precedent of military JAGs helping US attorneys prosecute federal misdemeanor crimes on military bases. Nobody has challenged that practice as a violation of the Posse Comitatus Act, he says. But those JAGs aren’t issuing rulings with a compulsory effect, like judges. And there is a congressional statute that authorizes them to work as prosecutors, says Maurer.
“There’s nuance here that we have not seen addressed before,” Corn says. “We’ve never considered the use of a military lawyer in a quasi-judicial function as a Posse Comitatus issue—nobody has ever brought it up.”
The Florida National Guard does have a so-called 287(g) agreement with ICE that doesn’t violate the Posse Comitatus Act because the Guard stays under state control, not federal control. But this arrangement doesn’t allow Guard personnel to work as judges, Corn says.
The DOJ’s Executive Office for Immigration Review declined to comment on whether DeSantis’ plan is legal. Trump, after touring Alligator Alcatraz, suggested the governor was within his rights: “On January 20, I signed an executive order empowering governors and state police to be deputized to enforce federal immigration laws, and Ron’s already taken advantage of it,” he said.
The Florida National Guard spokesperson told me they have not yet received orders for JAGs to take on the new assignment, “but we are standing by to provide assistance as needed and directed.”
Should that order come, the JAGs could be trained in as little as six weeks, according to Florida’s proposed immigration enforcement plan. That seems insufficient. “There would be a significant learning curve,” Nevitt notes. Immigration law is “incredibly complex,” Aldana adds, and training people to adjudicate these cases so quickly, even if they are skilled in another area of law, such as military law, “defies logic.”
Impartiality is another concern. If National Guard JAGs work as judges, their chain of command extends up to Trump, and they wouldn’t have “one single iota of judicial independence,” VanLandingham told me.
Some experts question why deploying National Guard personnel is even on the table when Congress just allocated $170 billion to ramp up immigration enforcement. “If ICE now has the money to go out and hire new folks, why do they need the military?” says Maurer. “My speculation is because it plays better on TV: It’s consistent with how the administration has from Day One characterized the threat of illegal immigration as a national security issue, as an invasion. Who fights against an invasion? Well, the military.”
“But what you end up with,” he adds, “is military officers under federal control who are running civilian courts—and that should raise all sorts of alarms.”