Biden Doesn’t Have Any Legal Authority to Seize Control of Texas National Guard

Texas Democratic politicians, such as Rep. Joaquin Castro and failed gubernatorial and Senate candidate Beto O’Rourke, are urging President Joe Biden to seize control of the Texas National Guard, which Republican Gov. Greg Abbott has mobilized to help secure the Texas border.

Abbott did so in the face of the deliberate and intentional inaction by the Biden administration to make sure the border stays open so millions of illegal aliens could continue to flood across from Mexico.

Under the circumstances, any such move by the president would be an abuse of the applicable law.

A number of federal statutes govern the National Guard, which is the modern equivalent of state militias and a reserve component of our military. Under 10 U.S.C. § 12301(a), the secretary of defense (and thus the president) is given the authority in “time of war or of national emergency declared by Congress, or when otherwise authorized by law” to order National Guard units to active duty.

But they cannot be called to active duty by the president “without the consent of the governor of the State.” If the governor consents, the unit called into federal service under Title 10 reports to the president as the commander in chief while in federal service.

State governors, however, like Abbott, remain the commanders in chief of their state National Guard units, such as the Texas National Guard, unless they have consented to the president’s call for those units to be in active federal service.

The only exception to the consent requirement is contained in subsection (f) and it only applies if National Guard units are needed for active duty for overseas service—such as when we were in the Iraq and Afghanistan wars.

Thus, under this statute, without the consent of Abbott, Biden has no power to simply seize control of the Texas National Guard as he is being urged to do and order them to stand down, since we are not in a war and the Guard is not needed for service abroad.

Biden could go to the extreme by trying to use the Insurrection Act of 1807 to take over the Texas National Guard. The Insurrection Act authorizes the president to federalize the National Guard under certain narrow and exceptional circumstances. The last time it was invoked was by President George W. Bush to help quell the deadly widespread riots in 1992 in Los Angeles after the arrest and beating of Rodney King, when state authorities were unable to cope with the violence and mayhem.

Under 10 U.S.C. § 252, the president can “call into Federal service the militia of any State” when “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.”

Clearly, there is no insurrection going on in Texas as defined in that law. 

Nor is Texas violating any court order issued in “the ordinary court of judicial proceedings.” The state has been placing barbed-wire fencing on state-owned and private property, and no court has ordered Texas to remove or cease installing that fencing.

 The only thing that has happened is that the U.S. Supreme Court vacated—while the case between Texas and the federal government is on appeal—an injunction that prevented the feds from removing the fencing. But nothing prevents Texas from continuing to put in more fencing, even after it has been removed.

Biden would also be hard-pressed to legitimately use another part of the Insurrection Act, 10 U.S.C. § 253, which allows a president to use a state militia (the National Guard) if an insurrection or domestic violence “hinders the execution of the laws of that State, and of the United States.”

It is Texas that is trying to ensure that federal laws are being enforced and complied with. And it is the Biden administration that is “hindering” the execution of the laws of the United States with its abject refusal to enforce our immigration laws, to prevent illegal aliens from crossing the border, and its unlawful granting of mass parole to those aliens once they are in the United States.

If Biden tries to call forth the Texas National Guard, the most likely federal statute for him to try to use, according to a source familiar with National Guard operations, is 10 U.S.C. § 12406. This provision allows the president to “call into Federal service” the National Guard under one of three circumstances: an “invasion by a foreign nation”; “a rebellion or danger of a rebellion against the authority of the Government of the United States”; or the president’s inability “with the regular forces to execute the laws of the United States.”

The fatuous argument that Biden would have to make is that Texas is engaged in a rebellion against the authority of the United States or some such other rubbish. But as already noted, there has been no rebellion by Texas and no court order of any kind finding that Texas is somehow violating federal law or refusing to comply with federal courts.

The third precondition obviously also does not apply. A claim that any of these preconditions have been met would be met with derision.

Instead of carrying out his duty as president to “take Care that the Laws be faithfully executed,” which includes our immigration laws, Biden has violated his oath of office and is acting like a bully to violate the law, threaten states like Texas that are faced with a desperate situation, and thwart the will of the people who want a secure border and the rising tide of illegal immigration stopped.

If the Biden administration would spend as much time fighting illegal immigration as it does fighting border states that are actually trying to do something about the problem, we might begin to see some progress. But don’t hold your breath.

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