DHS memo authorized National Guard to conduct immigration arrests as Trump administration expands enforcement
A confidential April 2025 Department of Homeland Security memo reveals a legal workaround to deputize National Guard troops as federal immigration officers when deployed outside their home states. While the Supreme Court limited domestic military deployments in December 2025, critics warn this memo could allow military presence at polling sites under the guise of immigration enforcement. Meanwhile, the ACLU of New Hampshire sues state police over lack of transparency in local 287(g) immigration arrest programs.
National Guard immigration enforcement memo
▪A confidential Department of Homeland Security memo from April 17, 2025, authorized National Guard members to be designated as federal immigration officers and perform immigration functions, including arresting unauthorized immigrants, when ordered to serve outside their home states.
▪The April 17, 2025 Department of Homeland Security memo argues that National Guard members assigned to another state take on a different legal status, effectively making them federal employees.
▪The April 17, 2025 Department of Homeland Security memo was written by then-acting general counsel Joseph Mazzara and obtained by the watchdog group American Oversight through a Freedom of Information Act request.
▪Although the April 17, 2025 Department of Homeland Security memo authorized National Guard members to perform immigration arrests, no such instances of National Guard members directly carrying out arrests have been reported as of August 28, 2026.
Posse Comitatus Act challenges
▪President Donald Trump has repeatedly threatened to invoke the 1807 Insurrection Act to deploy military troops domestically to respond to domestic issues.
▪The administration of President Donald Trump faced legal challenges under the Posse Comitatus Act of 1878, including in Los Angeles where President Trump deployed National Guard troops against California Governor Gavin Newsom's wishes.
▪The Posse Comitatus Act of 1878 restricts the president of the United States from using military troops for domestic law enforcement within United States borders.
New Hampshire 287(g) lawsuit
▪Immigration arrests in New Hampshire doubled to 429 total arrests over the 15 months preceding April 2026, with 51 arrests made by local police departments under 287(g) agreements.
▪The ACLU of New Hampshire filed a lawsuit on August 25, 2026, against the New Hampshire Division of State Police for failing to produce records regarding its 287(g) agreement with Immigration and Customs Enforcement.
▪New Hampshire is the only state in New England where local police departments are legally deputized under the 287(g) task-force model to arrest residents for immigration violations.
▪The ACLU of New Hampshire's August 25, 2026 lawsuit alleges that the New Hampshire Division of State Police operates as a 'black box' by withholding training materials and directives used to certify state troopers as immigration enforcement agents.
▪The number of local law enforcement agencies in New Hampshire participating in 287(g) agreements grew from 15 in April 2026 to 28 by August 2026.
Supreme Court military deployment ruling
▪In December 2025, the Supreme Court of the United States limited the administration of President Donald Trump's ability to deploy the National Guard for domestic immigration enforcement.
▪The Supreme Court of the United States ruled in December 2025 that military personnel can only be deployed for domestic law enforcement when local forces are operating inadequately or are incapacitated.
▪The Supreme Court's December 2025 ruling followed a legal challenge filed by Illinois after the Trump administration's 'Operation Midway Blitz' immigration crackdown that employed National Guard troops.
Voter fraud enforcement concerns
▪Homeland Security Secretary Markwayne Mullin has sought to use the Department of Homeland Security to investigate alleged voter fraud and has not ruled out sending Immigration and Customs Enforcement officers to polling places.
▪Watchdog group American Oversight and other critics warned that the legal rationale in the April 17, 2025 Department of Homeland Security memo could be used to deploy military forces near polling places under the guise of immigration enforcement.
▪Supporters of President Donald Trump have suggested that Republican governors may deploy the National Guard to polling places ahead of the November 2026 elections.
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