President Joe Biden has faced pressure from members of his own party to take control of the Texas National Guard that Republican Gov. Greg Abbott has deployed to his state’s southern border. Were Biden to do so, experts told the Daily Caller News Foundation, it would be a major escalation in the conflict between the federal government and the Texas government.
Democratic Texas Reps. Joaquin Castro and Greg Casar urged Biden on Wednesday to seize control of the state’s National Guard as the Texas state government refuses to back down from its southern border operation. While it’s possible for Biden to do so, there are limits to what the president can do, experts in military law told the DCNF.
On Monday, the Supreme Court ruled that federal authorities can take down concertina wire that Texas has placed along the U.S.-Mexico border to deter illegal crossings. The state has continued to install more wire in Eagle Pass, Texas, at Shelby Park, which it took control of earlier this month.
The Biden Administration has been asking Texas to relinquish Shelby Park, but the state has refused to stand down.
The issue with Biden taking control of the National Guard troops that Abbott has deployed is that it would present a possible violation of the Posse Comitatus Act, which bars the use of the military for civil law enforcement duties, defense attorney Davis Younts told the DCNF.
“Every member of the Texas National Guard is also a member of the United States military, but it can be federalized for a lot of reasons,” Younts said.
“It can’t be specifically for law enforcement. It’s almost like responding to jello when you hear these guys start saying things like, oh Biden should federalize them. Okay, but what is the purpose?” Younts said.
There’s a chance Congress could step in to restrict Biden from attempting to to take federal control of the troops deployed by Abbott, Younts added.
“Another issue is could Congress step in under the continuing resolution or over the next funding bill. I’d say yeah but there’s no money to federalize Texas National Guard members to take down border barriers and help illegals cross,” Younts said.
“So I think there are still some interesting fights to be had from a funding standpoint because everything that National Guard does has to be funded, whether it’s federal money or state money, and there should be some sort of appropriation and some limitation on it. I would be curious about what the mission is and how they would justify it,” Younts said.
Biden would be motivated by a political agenda if he made the move, a Pentagon official and Jeffrey Addicott, law professor at St. Mary’s University, told the DCNF.
The move would be “injecting politics” into military operations and “the DoD doesn’t really want to get involved in that,” a Pentagon source, who was granted anonymity because they’re not authorized to speak publicly, told the DCNF. It “seems very unlikely” it would happen, said the source.
“The last time it was done, of course, in a meaningful way was what the desegregation issues were. Most of us, again, agreed with what was going on in terms of allowing desegregation here,” Addicott said.
The Texas Military Department has more than 1,000 service members deployed on Abbott’s border mission and it is currently seeking more volunteers to join the effort.
If Biden wanted to use the troops at the border for law enforcement purposes, he could frame it as an issue of a foreign dispute, Addicott explained.
“You could say that this is not a domestic issue because the illegal aliens are not citizens of the United States. They’re invading our country. They’re violating the law. They were coming illegally across the border. And therefore, the National Guard could be federalized to secure the border,” Addicott said.
“That would be an action under the Insurrection Act. The President has the authority,” said Addicott. “To do that, he would have to admit that they are illegally coming across the border and then he would say I need more support to secure the border. But of course, this is kind of hypocritical when he himself has admitted that the border is not secured.”
Illegal immigration has hit record levels in recent years, with Border Patrol recording more than 2.2 million encounters with migrants crossing the southern border illegally in fiscal year 2022 and more than 2 million in fiscal year 2023.
December marked the highest month on record, with more than 300,000 illegal migrant encounters, according to Fox News.
The Pentagon, the White House and an Abbott spokesperson didn’t immediately respond to the DCNF’s requests for comment.
