Can Biden Federalize the Texas National Guard?

The topic of discussion for this Constitution Monday is the sovereignty of States. Currently, there is a standoff at the southern border. The federal government opened the border and allowed 8.5 million migrants to enter the United States.

The State of Texas said, “no more” and acted to close part of the border between Texas and Mexico. The Texas National Guard is at the border, supported by the National Guard from other states. They are stringing razor wire to make it impossible for anyone to enter through the area.

Some people are urging President Joe Biden to federalize the Texas National Guard. Since Texas Governor Greg Abbott activated the National Guard to stop the hoard of illegal immigrants from flooding the border, Biden could have real trouble if he acts to stop the Texan action. Hans von Spakovsky published an article about the situation in The Daily Signal. 

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.

Von Spakovsky continued his explanation that “Biden could go to the extreme by trying to use the Insurrection Act of 1807 to take over the Texas National Guard.” However, the Insurrection Act has certain narrow and exceptional requirements. Under 10 U.S.C. § 252, the president could call up the Texas National Guard only 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.” Then von Spakovsky added: “Clearly, there is no insurrection going on in Texas as defined in that law. Nor is Texas violating any court order issued….”