A Confidential DHS Memo Gave Officials a Way to Turn National Guard Troops Into Immigration Officers

A confidential Department of Homeland Security memo dated April 2025, obtained by American Oversight under the Freedom of Information Act and reported Aug. 28, 2026 by NOTUS, set out a legal rationale for using National Guard troops as federal immigration officers. It argues that Guard members become federal employees when ordered to serve outside their home states, and that the Homeland Security secretary may designate any federal employee as an immigration officer, authorizing them to "perform immigration functions," including arrests.

The rationale runs up against the Posse Comitatus Act, the 1878 law restricting use of the military for domestic law enforcement. A federal judge found in September 2025 that the Los Angeles Guard deployment ran afoul of that statute. A written internal theory for deputizing troops, surfacing more than a year later, indicates the option was prepared well ahead of any public debate.

No such arrests by Guard members have been reported, the department has not invoked the argument in court, and no judge has tested it.