[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 152 Introduced in House (IH)]

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.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``National Guard Border Enforcement 
Act''.

SEC. 2. USE OF NATIONAL GUARD TO SUPPORT DEPARTMENT OF HOMELAND 
              SECURITY BORDER CONTROL ACTIVITIES.

    (a) Expanded Deployment of National Guard; Duration.--
            (1) Deployment; duration.--In addition to the number of 
        members of the National Guard deployed along the international 
        border between the United States and Mexico as of the date of 
        the enactment of this Act, the Secretary of Defense shall 
        provide for the deployment of not less than an additional 
        10,000 members of the National Guard along the international 
        border between the United States and Mexico until the date on 
        which the Secretary of Homeland Security certifies that the 
        Federal Government has achieved operational control of the 
        international border.
            (2) Additional deployments.--The Secretary of Defense may 
        exceed the number specified in paragraph (1) at the request of 
        a Governor of a State that shares a portion of the 
        international border between the United States and Mexico if, 
        despite the deployment of the additional 10,000 members of the 
        National Guard along the international border, operational 
        control of the international border has not been achieved.
            (3) Deployment authorities.--Members of the National Guard 
        required to be deployed pursuant to paragraph (1) may be 
        deployed under section 502(f) of title 32, United States Code, 
        pursuant to a State border control activities plan approved 
        under section 112a of such title, as added by subsection (b), 
        or pursuant to the order of the Secretary of Defense under any 
        other provision of law.
            (4) Exemption from end strengths and other limitations.--
        Members of the National Guard deployed pursuant to paragraph 
        (1) shall not be included in the calculation to determine 
        compliance with--
                    (A) limits on end strength; or
                    (B) limits on the number of National Guard personal 
                that may be placed on active duty for operational 
                support.
            (5) Operational control defined.--In this subsection, the 
        term ``operational control'' has the meaning given that term in 
        section 2(b) of the Secure Fence Act of 2006 (Public Law 109-
        367; 8 U.S.C. 1701 note).
    (b) Federal Assistance for State Border Control Activities Plans.--
Chapter 1 of title 32, United States Code, is amended by inserting 
after section 112 the following:
``Sec. 112a. Border control activities
    ``(a) Funding Assistance.--The Secretary of Defense shall provide 
funds to the Governor of a State who submits to the Secretary a State 
border control activities plan satisfying the requirements of 
subsection (c). Such funds shall be used for the following:
            ``(1) The pay, allowances, clothing, subsistence, 
        gratuities, travel, and related expenses, as authorized by 
        State law, of personnel of the National Guard of that State 
        used, while not in Federal service, for the purpose of border 
        control activities.
            ``(2) The operation and maintenance of the equipment and 
        facilities of the National Guard of that State used for the 
        purpose of border control activities.
            ``(3) The procurement of services and equipment, and the 
        leasing of equipment, for the National Guard of that State used 
        for the purpose of border control activities. However, the use 
        of such funds for the procurement of equipment may not exceed 
        $5,000 per item, unless approval for procurement of equipment 
        in excess of that amount is granted in advance by the Secretary 
        of Defense.
    ``(b) Use of Personnel Performing Full-Time National Guard Duty.--
(1) Under regulations prescribed by the Secretary of Defense, personnel 
of the National Guard of a State may, in accordance with the State 
border control activities plan referred to in subsection (c), be 
ordered to perform full-time National Guard duty under section 502(f) 
of this title for the purpose of carrying out border control 
activities.
    ``(2)(A) A member of the National Guard serving on full-time 
National Guard duty under orders authorized under paragraph (1) shall 
participate in the training required under section 502(a) of this title 
in addition to the duty performed for the purpose authorized under that 
paragraph. The pay, allowances, and other benefits of the member while 
participating in the training shall be the same as those to which the 
member is entitled while performing duty for the purpose of carrying 
out border control activities. The member is not entitled to additional 
pay, allowances, or other benefits for participation in training 
required under section 502(a)(1) of this title.
    ``(B) Appropriations available for the Department of Defense for 
homeland defense may be used for paying costs associated with a 
member's participation in training described in subparagraph (A). The 
appropriation shall be reimbursed in full, out of appropriations 
available for paying those costs, for the amounts paid. Appropriations 
available for paying those costs shall be available for making the 
reimbursements.
    ``(C) To ensure that the use of units and personnel of the National 
Guard of a State pursuant to a State border control activities plan 
does not degrade the training and readiness of such units and 
personnel, the following requirements shall apply in determining the 
border control activities that units and personnel of the National 
Guard of a State may perform:
            ``(i) The performance of the activities may not adversely 
        affect the quality of that training or otherwise interfere with 
        the ability of a member or unit of the National Guard to 
        perform the military functions of the member or unit.
            ``(ii) National Guard personnel will not degrade their 
        military skills as a result of performing the activities.
            ``(iii) The performance of the activities will not result 
        in a significant increase in the cost of training.
            ``(iv) In the case of border control activities performed 
        by a unit organized to serve as a unit, the activities will 
        support valid unit training requirements.
    ``(c) Plan Requirements.--A State border control activities plan 
shall--
            ``(1) specify how personnel of the National Guard of that 
        State are to be used in border control activities in support of 
        the mission of the United States Customs and Border Protection 
        of the Department of Homeland Security;
            ``(2) certify that those operations are to be conducted at 
        a time when the personnel involved are not in Federal service;
            ``(3) certify that participation by National Guard 
        personnel in those operations is service in addition to 
        training required under section 502 of this title;
            ``(4) certify that any engineer-type activities (as defined 
        by the Secretary of Defense) under the plan will be performed 
        only by units and members of the National Guard;
            ``(5) include a certification by the Attorney General of 
        the State (or, in the case of a State with no position of 
        Attorney General, a civilian official of the State equivalent 
        to a State attorney general) that the use of the National Guard 
        of the State for the activities proposed under the plan is 
        authorized by, and is consistent with, State law; and
            ``(6) certify that the Governor of the State or a civilian 
        law enforcement official of the State designated by the 
        Governor has determined that any activities included in the 
        plan that are carried out in conjunction with Federal law 
        enforcement agencies serve a State law enforcement purpose.
    ``(d) Examination of Plan.--Before funds are provided to the 
Governor of a State under this section and before members of the 
National Guard of that State are ordered to full-time National Guard 
duty as authorized in subsection (b), the Secretary of Defense shall, 
in consultation with the Secretary of Homeland Security, examine the 
adequacy of the plan submitted by the Governor under subsection (c). 
The plan as approved by the Secretary of Defense may provide for the 
use of personnel and equipment of the National Guard of that State to 
assist United States Customs and Border Protection in the 
transportation of aliens who have violated a Federal immigration law.
    ``(e) End Strength Limitation.--(1) Except as provided in 
paragraphs (2) and (3), at the end of a fiscal year there may not be 
more than 10,000 members of the National Guard--
            ``(A) on full-time National Guard duty under section 502(f) 
        of this title to perform border control activities pursuant to 
        an order to duty; or
            ``(B) on duty under State authority to perform border 
        control activities pursuant to an order to duty with State pay 
        and allowances being reimbursed with funds provided under 
        subsection (a)(1).
    ``(2) The Secretary of Defense may increase the end strength 
authorized under paragraph (1) if the Secretary determines that such an 
increase is necessary in the national security interests of the United 
States.
    ``(3) National Guard personnel deployed pursuant to paragraph (1) 
shall not be included in the calculation to determine compliance with--
            ``(A) limits on end strength; or
            ``(B) limits on the number of National Guard personal that 
        may be placed on active duty for operational support.
    ``(f) Annual Report.--The Secretary of Defense shall submit to 
Congress an annual report regarding assistance provided and activities 
carried out under this section during the preceding fiscal year. The 
report shall include the following:
            ``(1) The number of members of the National Guard excluded 
        under subsection (e) from the computation of end strengths.
            ``(2) A description of the border control activities 
        conducted under State border control activities plans referred 
        to in subsection (c) with funds provided under this section.
            ``(3) An accounting of the amount of funds provided to each 
        State.
            ``(4) A description of the effect on military training and 
        readiness of using units and personnel of the National Guard to 
        perform activities under the State border control activities 
        plans.
    ``(g) Statutory Construction.--Nothing in this section shall be 
construed as a limitation on the authority of any unit of the National 
Guard of a State, when such unit is not in Federal service, to perform 
law enforcement functions authorized to be performed by the National 
Guard by the laws of the State concerned.
    ``(h) Definitions.--In this section:
            ``(1) The term `border control activities', with respect to 
        the National Guard of a State, means the use of National Guard 
        personnel in border control activities authorized by the law of 
        the State and requested by the Governor of the State in support 
        of the mission of the United States Customs and Border 
        Protection of the Department of Homeland Security, including 
        activities as follows:
                    ``(A) Armed vehicle and foot patrols along the 
                international border between the United States and 
                Mexico.
                    ``(B) Interdiction of a vehicle, vessel, aircraft 
                or other similar activity.
                    ``(C) Search, seizure, and detention of suspects.
                    ``(D) Construction of roads, fences, and vehicle 
                barriers.
                    ``(E) Search and rescue operations.
                    ``(F) Intelligence gathering, surveillance, and 
                reconnaissance.
                    ``(G) Aviation support.
            ``(2) The term `Governor of a State' means, in the case of 
        the District of Columbia, the Commanding General of the 
        National Guard of the District of Columbia.
            ``(3) The term `State' means each of the several States, 
        the District of Columbia, the Commonwealth of Puerto Rico, or a 
        territory or possession of the United States.''.
    (c) Clerical Amendment.--The table of sections at the beginning of 
chapter 1 of such title is amended by inserting after the item relating 
to section 112 the following new item:

``112a. Border control activities.''.
                                 <all>