By Steve BermanBecause it’s an election year, the idiocy surrounding our southern border is naturally a breeding ground for ignorance and great harm. On one hand, President Joe Biden does not want to crack down on illegal immigrants pouring in from Mexico, even though that means New York City and Boston are running out of places to shelter them. On the other hand, giving in on this issue, after years of claiming that Trump-era border policies were inhumane, would cost votes among the liberal progressive set. Of course, not doing anything about the border is also costing Biden votes.
Exploiting this problem (not solving it!) has become a great parlor game for Republicans, Fox News hosts, and MAGA types. Leading the parade, in more than just a game, is Texas Gov. Greg Abbott, who has ordered his National Guard troops to install razor wire on land in Eagle Pass, abutting the Rio Grande. Biden, in response, ordered the Border Patrol to remove the razor wire. A federal judge enjoined the Biden administration from doing that, and recently the U.S. Supreme Court quashed the injunction, so now we have a kafkaesque situation where uniformed American troops are installing concertina wire while, simultaneously, uniformed American Border Patrol agents remove it. Sounds to me like a shovel-ready jobs program (dig that hole then fill it back in).
This leads to the obvious question of what can a U.S. president do if a state governor decides to use National Guard troops in defiance of his will? The answer is not as black and white as you might think. But in general, state governors, Tenth Amendment and all that, don’t have the power to defy the federal government acting under its own authority by employing uniformed militia. Doing so is generally covered under Public Law 9-39, commonly known as the Insurrection Act of 1807.
The Act, 10 USC § 252, reads, in part:
Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.
Applied here, President Biden would need to issue a proclamation under § 254, ordering “the insurgents to disperse and retire peaceably to their abodes within a limited time.” Of course, here the “insurgents” are the Texas National Guard. So that option might be a bit of a stretch.
However, let’s examine if Gov. Abbott is really engaged in an insurrection against the federal government. Has he actually “defied the Supreme Court” as the headlines blare? He has not. The Supreme Court did not in fact order Texas to do anything at all. Therefore Texas cannot be in defiance of what it hasn’t been ordered to do. Gov. Abbott is free to put up all the concertina wire he wants, and President Biden is free to order the Border Patrol to take it all down. There’s really no way to defy the Supreme Court order, since it removed an injunction preventing the federal government from removing Texas’ razor wire at the border. If Biden had ordered the Border Patrol to ignore that now-removed injunction, then Biden would have been in defiance of a court order, but not from the Supreme Court.
Nobody is defying anything (legally) here. They are defying common sense and rationality, to be sure, but that’s politics, not law.
For argument’s sake, if Gov. Abbott were to defy a court order, especially from the Supreme Court, using National Guard troops to carry out his flagrant flouting of the law and authority of the federal government, then President Biden could invoke the Insurrection Act, and deploy whatever federal military assets, including federalizing the Texas National Guard, to deal with the issue. This is the one and only narrow exception to the Posse Comitatus Act, which prohibits use of the military for domestic law enforcement.
Since in the real world, nobody is defying anything, the whole question is useless; as my high school chemistry teacher was fond of saying, if dog rabbit.
So what are Democrats talking about when they “urge Biden” to federalize the Texas militia? Well, it’s not insurrection. It’s actually a precedent used by President George W. Bush in 2006, and again by President Donald Trump in 2018, under Title 32. Title 32 keeps the Guard under the authority of state governors, tasking them to take part in federal missions, without considering them in active-duty status. This status is typically used for training and other non-combat situations. Of course, it requires the state governor to agree to provide the troops, and in this case, I think it’s a fair bet that Gov. Abbott will be, in the words of Captain Hector Barbossa, “disinclined to acquiesce to your request.”
It’s not an insurrection for a governor to say “no” to the president for such a request. But there’s yet another law Biden could use, Chapter 15 of Title 10, which allows military support for civilian law enforcement agencies. Noted deep in the weeds here is Public Law 116-283, dated January 1, 2021, that deals with use of the military “to provide assistance to secure the southern land border of the United States.” Chapter 15 is not exempt from Posse Comitatus restrictions. The military cannot engage in tasks that the Border Patrol normally does, as in detaining illegal immigrants.
But—such a magic word here—it can be used to support the Border Patrol in the removal of razor wire that was placed by the State of Texas at the southern border.
Confused yet?
It’s simple: President Biden can order the Border Patrol to request Chapter 15 assistance to remove the barriers constructed by the Texas National Guard, and therefore federalize the Texas National Guard into active-duty status to remove said barriers that heretofore, the Texas National Guard had been constructing.
(Private, see that razor wire you just installed yesterday? Yessir. Remove it! Ooookay Captain, but tomorrow are we gonna dig holes then fill them back in?)
If Gov. Abbott decided to resist the legal federalizing of his National Guard troops, well, then he’d be engaging in an insurrection—that is unless he got a federal judge to agree with him. Which Abbott claims is a slam dunk. Politically-speaking, Abbott is more right than wrong.
“This is the No. 1 issue in America. Americans want a secure border. If Joe Biden federalizes our National Guard, that would be the biggest political blunder that you can make, and that’s why I think he will not do it,” Abbott told Fox News’s Sean Hannity on Monday.
But if Biden did do it, what could Abbott do?
Pretty much nothing. In 1963, President John F. Kennedy federalized the Alabama National Guard when Gov. George Wallace refused to integrate the University of Alabama. Here’s what the National Guard Memorial Museum has to say about that event.
This photograph shows Deputy Attorney General Nicholas Katzenbach as he confronted Alabama Governor George Wallace in June of 1963 at the schoolhouse door of the University of Alabama… After this photo was taken, Katzenbach reported to President Kennedy that Wallace would not step aside. Kennedy then federalized the Alabama National Guard and the state’s Adjutant General Henry Graham confronted Wallace. Graham saluted Wallace before saying, “Sir, it is my sad duty to ask you to step aside under the orders of the President of the United States.” Wallace finally complied…
Maj. Gen. Graham wore the Alabama stars and bars confederate patch on his chest, but was compelled to obey the orders of the Commander-in-Chief. And there was nothing Gov. Wallace could do but step aside. President Kennedy won, game-set-match.
If President Biden federalizes the Texas National Guard, Gov. Abbott would need to yield control and let them do what their Commander-in-Chief ordered them to do. He could not refuse. He could not order his State Police to interfere with the lawful deployment of federalized troops. He could not, despite what Nikki Haley said, have Texas secede. (“If Texas decides they want to do that, they can do that”—Nikki Haley. And, no, Nikki, they can’t.)
What Gov. Abbott could do if Biden federalizes the Texas National Guard is whine, loudly, that Biden is taking extreme measures using federal troops not to protect the southern border of the United States, but to compel the border to be open to illegal immigration in ever-larger numbers. That is a powerful political argument for Biden not to do it.
In fact, Republicans want Biden to dare to do it. They want to see Biden step on a giant rake at the border, with the cameras running. They double dog dare him to do it.
But we know, because this is an election year in which Joe Biden would rather do nothing at all (his natural state, doing nothing) between now and November, that he will not do it. He will continue to have the Border Patrol remove the razor wire as the Texas National Guard continues to deploy it, until some court or another rules on this massive pudding of idiocy. And both sides will grind grist in the ever-turning political mill as neither side wants to upset their base by, you know, actually working on the freaking problem.
Anyone who’s been to the border knows it’s a festering wound. Drugs, sex slaves, and money cross over illegally every day under cover of thousands of immigrants who fly in to Mexicali, drop their identity cards on the ground just before crossing into the U.S., and use their burner phones to call the Border Patrol to pick them up. Then, a few miles down the road, the smugglers strut into our country without a care because the officers are dealing with another truckload of families from Venezuela, or Peshawar.
What walls we have are interspersed with great gaps of nothing at all, where people are free to simply walk in. At least Texas’ razor wire serves a purpose, to slow down the flow enough to apprehend them before they get stranded in the Texas brush country, or die in the back of a panel truck, abandoned by their coyote.
Federalizing Texas National Guard troops would at least show America what Democrats really want. (As long as those immigrants don’t land in the suburbs of Chicago, or in Martha’s Vineyard, “lured onto the plane with promises of help getting work,” as NPR characterized Gov. Abbott’s efforts to spread the cheer outside Texas.) I wish Biden would do it, but he’d rather let the right wing talking heads and the MAGA wingnuts make his case for him.
But don’t let all the talk about secession, civil war, and Texas independence fool you. If the Commander-in-Chief mobilizes National Guard troops into federal service, Gov. Abbott has no authority to order them to do squat. Can Biden federalize Texas? You bet.
But he won’t.
Follow Steve on Twitter @stevengberman.
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