Can Joe Biden federalize the National Guard to stop Greg Abbott?

“Civil War” is trending on social media following the U.S. Supreme Court ruling earlier this week overturning a lower court injunction in the case of Texas versus the Biden administration over border security.

The injunction had temporarily prohibited the federal government from removing concertina wire deployed by Texas National Guard troops, who are seeking to secure the border under the direction of Governor Greg Abbott. In response to the court’s decision, Abbott released a letter boldly declaring Texas’ right to defend itself from the ongoing border invasion and stating that the National Guard would continue its work.

While many in the media have painted Abbott as defying the Supreme Court, the removal of the injunction does not
legally prevent the Texas National Guard from continuing to place obstacles along the border as Abbott has vowed. The federal government is simply no longer barred from also removing the obstacles, as was the policy before the injunction. The legal status of Texas’ deployment of obstacles at the border must await an actual ruling on the case itself.

This has not stopped Democrats, including U.S. Rep. Joaquin Castro (D-Texas)
from demanding that Biden federalize the Texas National Guard to take away the state’s ability to defend itself.

Others have
compared Abbott’s efforts to uphold the law with Southern governors defying desegregation in the 1960s.

The comparison is not merely defamatory. It has a legal component. To federalize the Texas National Guard (and activate other federal troops), Biden would need to invoke the Insurrection Act, which he can do only in limited legal circumstances citing one of three separate sections of the law, found under Title 10 of U.S. Code, sections 331, 332, and 333.

Section 331 requires the approval of the state legislature or the governor when a state asks for help in quelling a rebellion against state authority. Not applicable in this case.

The idea that “no human being is illegal” and therefore has a right to enter the country is the beating heart of the left’s open-borders policy.

Section 332 allows the president to invoke the Insurrection Act and federalize National Guard troops absent a request from a state legislature, “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.”

President Biden might try to cite this section arguing that Abbott is unlawfully obstructing, but it seems unlikely the White House can argue that judicial proceedings are ineffective, since the legal case is still ongoing. The use of this section is further complicated by the fact that Biden seeks to enforce an open-border policy that — as Abbott argues in his letter — is a violation of the federal government’s constitutional responsibility to protect the states. Claiming Texas is engaged in obstruction puts a spotlight on the Biden administration’s failure to enforce existing federal immigration law.

This leaves Title 10, Section 333, which allows the president to federalize a state’s National Guard when “any part or class of its people” are “deprived of a right, privilege, immunity, or protection named in the Constitution and secured by law” when “the constituted authorities of that State are unable, fail, or refuse to protect that right, privilege, or immunity, or to give that protection.”

Section 333 was originally derived from the 1871 Civil Rights Act, known as the “Ku Klux Klan Act,” which gave then-President Ulysses S. Grant the authority to use the military to suppress the Klan’s violent conspiracy to stop recently freed black citizens from voting. Despite concerns about the act’s constitutionality when it was passed, it would be revived by courts in the 1960s to enforce civil rights decrees and eventually be folded into the Insurrection Act.

In this case, Biden would be forced to argue that illegal aliens are a “class of its people,” which is to say American and Texas citizens, and further that illegally crossing the border is a right “named in the Constitution and secured by law.” While legally laughable, the idea that “no human being is illegal” and therefore has a right to enter the country is the beating heart of the left’s open-borders policy. So one can’t dismiss the notion that Biden might be convinced to go ahead with such a scheme, since the left’s ideological logic essentially demands it.

Against such an effort is likely to be the Pentagon’s National Guard Bureau, which would have to weigh this flimsy claim against the fact that the National Guard has not been federalized over a state’s objections in more than 60 years.

As generals nervously watch the hemorrhaging of American military recruitment, one imagines they won’t be eager to inject themselves into such a squabble, particularly when the optics of letting military-age males swarm the border are not nearly as attractive as images of U.S. troops protecting schoolgirls from snarling racists.

The continued promotion of the left’s “wokeness” ideology among the U.S. military general staff means we can’t be entirely certain where the Pentagon would come down, but bureaucratic inertia alone may be enough for the general staff to discourage the Biden White House.

Still, the burgeoning constitutional crisis is real, and the left’s willingness to go immediately for the jugular with a demand to federalize the Texas National Guard has to be treated with the utmost seriousness.

To further discourage the Biden administration from escalating a crisis, red-state governors should ask their adjutant generals to use all their influence to ensure the Adjutant Generals’ Corps Association and the National Guard Association lobby the National Guard Bureau to discourage and publicly downplay any such effort by the Biden administration.

State attorneys general should consider a joint letter of support for Abbott’s authority as commander of the Texas National Guard and articulate that any attempt by Biden to federalize the Guard in this case would be a gross violation of his authority. The House of Representatives should pass a resolution supporting Abbott’s declaration that Texas is facing an invasion and affirming his right to use the Texas Military Department to resist it.

A strong message publicly rebuking a scheme to federalize the National Guard is necessary to lower tensions and prevent the Biden administration from making a mistake that could have terrible unforeseen consequences.

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