Power Grab/Fire anyone who can stop him
A DHS memo tells state attorneys general that Guard troops can be deputized as immigration officers
The confidential April 2025 memo was obtained by American Oversight through a FOIA request and released on August 28, 2026.
What happened
A confidential April 2025 memo from DHS’s Office of the General Counsel told state attorneys general that National Guard members ordered outside their home state become federal employees who can be designated immigration officers. The memo relies on 8 U.S.C. 1103(a)(6).
The memo authorized Guard troops to perform immigration functions, including arrests, and argued this would not violate the Posse Comitatus Act. That law bars the military from acting as civilian police, and the memo’s theory is that out-of-state Guard members are federal employees instead.
American Oversight obtained the memo through a FOIA request to ICE and released it on August 28, 2026, the day Politico first reported it. No Guard immigration arrests under the theory have been documented, and no court has treated 1103(a)(6) as a Posse Comitatus exception.
Who benefited
DHS gets a legal theory under which Guard troops sent out of state can make immigration arrests. The theory turns soldiers into federal employees who can be designated immigration officers, without any new statute. The memo argues this would not violate the Posse Comitatus Act. No court has treated 1103(a)(6) as an exception to that law.
Who wanted something
DHS’s lawyers set out the theory in a memo to state attorneys general, so that Guard troops ordered outside their home state could be used for immigration functions. The memo argues this does not violate the Posse Comitatus Act.
Who lost out
No Guard immigration arrests under the theory have been documented, so the loss so far is the line between soldiers and civilian arrests. The people exposed are anyone a deputized Guard member could arrest for an immigration violation.
Why it matters
The theory stayed confidential for more than 16 months, until FOIA and Politico surfaced it on August 28, 2026. No court has tested it. No court has treated 1103(a)(6) as an exception to the Posse Comitatus Act.
Sources American Oversight (FOIA release) (primary)DocumentCloud (American Oversight) (primary)PoliticoScripps News