I 

112TH CONGRESS 

1ST SESSION H. R. 152 

To utilize the National Guard to provide support for the border control 

activities of the United States Customs and Border Protection of the 

Department of Homeland Security, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 5, 2011 

Mr. POE of Texas (for himself, Mr. BRADY of Texas, Mr. GOHMERT, Mr. 

ROYCE, Mr. ROE of Tennessee, Mr. HALL, Mr. CAMPBELL, Mr. BURTON

of Indiana, Mr. STUTZMAN, Mr. STEARNS, and Mr. LATTA) introduced 

the following bill; which was referred to the Committee on Armed Services 

A BILL 

To utilize the National Guard to provide support for the 

border control activities of the United States Customs 

and Border Protection of the Department of Homeland 

Security, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘National Guard Border 

5 Enforcement Act’’. 


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1 SEC. 2. USE OF NATIONAL GUARD TO SUPPORT DEPART2 MENT OF HOMELAND SECURITY BORDER 

3 CONTROL ACTIVITIES. 

4 (a) EXPANDED DEPLOYMENT OF NATIONAL GUARD; 

5 DURATION.— 

6 (1) DEPLOYMENT; DURATION.—In addition to 

7 the number of members of the National Guard de8 ployed along the international border between the 

9 United States and Mexico as of the date of the en10 actment of this Act, the Secretary of Defense shall 

11 provide for the deployment of not less than an addi12 tional 10,000 members of the National Guard along 

13 the international border between the United States 

14 and Mexico until the date on which the Secretary of 

15 Homeland Security certifies that the Federal Gov16 ernment has achieved operational control of the 

17 international border. 

18 (2) ADDITIONAL DEPLOYMENTS.—The Sec19 retary of Defense may exceed the number specified 

20 in paragraph (1) at the request of a Governor of a 

21 State that shares a portion of the international bor22 der between the United States and Mexico if, despite 

23 the deployment of the additional 10,000 members of 

24 the National Guard along the international border, 

25 operational control of the international border has 

26 not been achieved. 


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1 (3) DEPLOYMENT AUTHORITIES.—Members of 

2 the National Guard required to be deployed pursu3 ant to paragraph (1) may be deployed under section 

4 502(f) of title 32, United States Code, pursuant to 

5 a State border control activities plan approved under 

6 section 112a of such title, as added by subsection 

7 (b), or pursuant to the order of the Secretary of De8 fense under any other provision of law. 

9 (4) EXEMPTION FROM END STRENGTHS AND

10 OTHER LIMITATIONS.—Members of the National 

11 Guard deployed pursuant to paragraph (1) shall not 

12 be included in the calculation to determine compli13 ance with— 

14 (A) limits on end strength; or 

15 (B) limits on the number of National 

16 Guard personal that may be placed on active 

17 duty for operational support. 

18 (5) OPERATIONAL CONTROL DEFINED.—In this 

19 subsection, the term ‘‘operational control’’ has the 

20 meaning given that term in section 2(b) of the Se21 cure Fence Act of 2006 (Public Law 109–367; 8 

22 U.S.C. 1701 note). 

23 (b) FEDERAL ASSISTANCE FOR STATE BORDER CON24 TROL ACTIVITIES PLANS.—Chapter 1 of title 32, United 


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1 States Code, is amended by inserting after section 112 the 

2 following: 

3 ‘‘§ 112a. Border control activities 

4 ‘‘(a) FUNDING ASSISTANCE.—The Secretary of De5 fense shall provide funds to the Governor of a State who 

6 submits to the Secretary a State border control activities 

7 plan satisfying the requirements of subsection (c). Such 

8 funds shall be used for the following: 

9 ‘‘(1) The pay, allowances, clothing, subsistence, 

10 gratuities, travel, and related expenses, as author11 ized by State law, of personnel of the National 

12 Guard of that State used, while not in Federal serv13 ice, for the purpose of border control activities. 

14 ‘‘(2) The operation and maintenance of the 

15 equipment and facilities of the National Guard of 

16 that State used for the purpose of border control ac17 tivities. 

18 ‘‘(3) The procurement of services and equip19 ment, and the leasing of equipment, for the National 

20 Guard of that State used for the purpose of border 

21 control activities. However, the use of such funds for 

22 the procurement of equipment may not exceed 

23 $5,000 per item, unless approval for procurement of 

24 equipment in excess of that amount is granted in ad25 vance by the Secretary of Defense. 


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1 ‘‘(b) USE OF PERSONNEL PERFORMING FULL-TIME

2 NATIONAL GUARD DUTY.—(1) Under regulations pre3 scribed by the Secretary of Defense, personnel of the Na4 tional Guard of a State may, in accordance with the State 

5 border control activities plan referred to in subsection (c), 

6 be ordered to perform full-time National Guard duty 

7 under section 502(f) of this title for the purpose of car8 rying out border control activities. 

9 ‘‘(2)(A) A member of the National Guard serving on 

10 full-time National Guard duty under orders authorized 

11 under paragraph (1) shall participate in the training re12 quired under section 502(a) of this title in addition to the 

13 duty performed for the purpose authorized under that 

14 paragraph. The pay, allowances, and other benefits of the 

15 member while participating in the training shall be the 

16 same as those to which the member is entitled while per17 forming duty for the purpose of carrying out border con18 trol activities. The member is not entitled to additional 

19 pay, allowances, or other benefits for participation in 

20 training required under section 502(a)(1) of this title. 

21 ‘‘(B) Appropriations available for the Department of 

22 Defense for homeland defense may be used for paying 

23 costs associated with a member’s participation in training 

24 described in subparagraph (A). The appropriation shall be 

25 reimbursed in full, out of appropriations available for payVerDate Mar 15 2010 00:43 Jan 11, 2011 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H152.IH H152

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1 ing those costs, for the amounts paid. Appropriations 

2 available for paying those costs shall be available for mak3 ing the reimbursements. 

4 ‘‘(C) To ensure that the use of units and personnel 

5 of the National Guard of a State pursuant to a State bor6 der control activities plan does not degrade the training 

7 and readiness of such units and personnel, the following 

8 requirements shall apply in determining the border control 

9 activities that units and personnel of the National Guard 

10 of a State may perform: 

11 ‘‘(i) The performance of the activities may not 

12 adversely affect the quality of that training or other13 wise interfere with the ability of a member or unit 

14 of the National Guard to perform the military func15 tions of the member or unit. 

16 ‘‘(ii) National Guard personnel will not degrade 

17 their military skills as a result of performing the ac18 tivities. 

19 ‘‘(iii) The performance of the activities will not 

20 result in a significant increase in the cost of train21 ing. 

22 ‘‘(iv) In the case of border control activities per23 formed by a unit organized to serve as a unit, the 

24 activities will support valid unit training require25 ments. 


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1 ‘‘(c) PLAN REQUIREMENTS.—A State border control 

2 activities plan shall— 

3 ‘‘(1) specify how personnel of the National 

4 Guard of that State are to be used in border control 

5 activities in support of the mission of the United 

6 States Customs and Border Protection of the De7 partment of Homeland Security; 

8 ‘‘(2) certify that those operations are to be con9 ducted at a time when the personnel involved are not 

10 in Federal service; 

11 ‘‘(3) certify that participation by National 

12 Guard personnel in those operations is service in ad13 dition to training required under section 502 of this 

14 title; 

15 ‘‘(4) certify that any engineer-type activities (as 

16 defined by the Secretary of Defense) under the plan 

17 will be performed only by units and members of the 

18 National Guard; 

19 ‘‘(5) include a certification by the Attorney 

20 General of the State (or, in the case of a State with 

21 no position of Attorney General, a civilian official of 

22 the State equivalent to a State attorney general) 

23 that the use of the National Guard of the State for 

24 the activities proposed under the plan is authorized 

25 by, and is consistent with, State law; and 


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1 ‘‘(6) certify that the Governor of the State or 

2 a civilian law enforcement official of the State des3 ignated by the Governor has determined that any ac4 tivities included in the plan that are carried out in 

5 conjunction with Federal law enforcement agencies 

6 serve a State law enforcement purpose. 

7 ‘‘(d) EXAMINATION OF PLAN.—Before funds are pro8 vided to the Governor of a State under this section and 

9 before members of the National Guard of that State are 

10 ordered to full-time National Guard duty as authorized in 

11 subsection (b), the Secretary of Defense shall, in consulta12 tion with the Secretary of Homeland Security, examine the 

13 adequacy of the plan submitted by the Governor under 

14 subsection (c). The plan as approved by the Secretary of 

15 Defense may provide for the use of personnel and equip16 ment of the National Guard of that State to assist United 

17 States Customs and Border Protection in the transpor18 tation of aliens who have violated a Federal immigration 

19 law. 

20 ‘‘(e) END STRENGTH LIMITATION.—(1) Except as 

21 provided in paragraphs (2) and (3), at the end of a fiscal 

22 year there may not be more than 10,000 members of the 

23 National Guard— 


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1 ‘‘(A) on full-time National Guard duty under 

2 section 502(f) of this title to perform border control 

3 activities pursuant to an order to duty; or 

4 ‘‘(B) on duty under State authority to perform 

5 border control activities pursuant to an order to 

6 duty with State pay and allowances being reim7 bursed with funds provided under subsection (a)(1). 

8 ‘‘(2) The Secretary of Defense may increase the end 

9 strength authorized under paragraph (1) if the Secretary 

10 determines that such an increase is necessary in the na11 tional security interests of the United States. 

12 ‘‘(3) National Guard personnel deployed pursuant to 

13 paragraph (1) shall not be included in the calculation to 

14 determine compliance with— 

15 ‘‘(A) limits on end strength; or 

16 ‘‘(B) limits on the number of National Guard 

17 personal that may be placed on active duty for oper18 ational support. 

19 ‘‘(f) ANNUAL REPORT.—The Secretary of Defense 

20 shall submit to Congress an annual report regarding as21 sistance provided and activities carried out under this sec22 tion during the preceding fiscal year. The report shall in23 clude the following: 


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1 ‘‘(1) The number of members of the National 

2 Guard excluded under subsection (e) from the com3 putation of end strengths. 

4 ‘‘(2) A description of the border control activi5 ties conducted under State border control activities 

6 plans referred to in subsection (c) with funds pro7 vided under this section. 

8 ‘‘(3) An accounting of the amount of funds pro9 vided to each State. 

10 ‘‘(4) A description of the effect on military 

11 training and readiness of using units and personnel 

12 of the National Guard to perform activities under 

13 the State border control activities plans. 

14 ‘‘(g) STATUTORY CONSTRUCTION.—Nothing in this 

15 section shall be construed as a limitation on the authority 

16 of any unit of the National Guard of a State, when such 

17 unit is not in Federal service, to perform law enforcement 

18 functions authorized to be performed by the National 

19 Guard by the laws of the State concerned. 

20 ‘‘(h) DEFINITIONS.—In this section: 

21 ‘‘(1) The term ‘border control activities’, with 

22 respect to the National Guard of a State, means the 

23 use of National Guard personnel in border control 

24 activities authorized by the law of the State and re25 quested by the Governor of the State in support of 


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1 the mission of the United States Customs and Bor2 der Protection of the Department of Homeland Se3 curity, including activities as follows: 

4 ‘‘(A) Armed vehicle and foot patrols along 

5 the international border between the United 

6 States and Mexico. 

7 ‘‘(B) Interdiction of a vehicle, vessel, air8 craft or other similar activity. 

9 ‘‘(C) Search, seizure, and detention of sus10 pects. 

11 ‘‘(D) Construction of roads, fences, and ve12 hicle barriers. 

13 ‘‘(E) Search and rescue operations. 

14 ‘‘(F) Intelligence gathering, surveillance, 

15 and reconnaissance. 

16 ‘‘(G) Aviation support. 

17 ‘‘(2) The term ‘Governor of a State’ means, in 

18 the case of the District of Columbia, the Com19 manding General of the National Guard of the Dis20 trict of Columbia. 

21 ‘‘(3) The term ‘State’ means each of the several 

22 States, the District of Columbia, the Commonwealth 

23 of Puerto Rico, or a territory or possession of the 

24 United States.’’. 


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1 (c) CLERICAL AMENDMENT.—The table of sections 

2 at the beginning of chapter 1 of such title is amended by 

3 inserting after the item relating to section 112 the fol4 lowing new item: 

‘‘112a. Border control activities.’’. 

Æ 


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