States’ rights issues have become more prevalent since 2020, spanning a variety of topics such as mask mandates, vaccine requirements, abortion rights, same-sex marriage, gun control, marijuana legalization, education standards and curriculum, environmental regulations, and electoral college and voting rights. The recent Texas border standoff between Governor Abbott and President Biden underscores the need for a nuanced discussion on the role of the National Guard and the governor’s authority to deploy them.
With 10,000 migrants crossing the border daily, Governor Abbott perceives a crisis unfolding in his state. “I officially declared an invasion at our border because of Biden’s policies.” He tweeted. In response, he launched Operation Lonestar, mobilizing the National Guard to bolster border security, prevent illegal crossings, combat drug trafficking, and address other criminal activities. According to the Eagleton Center on the American Governor at Rutgers University, “Governors are the commanders and chief of the state militias, with the responsibility to protect the safety of the states’ citizens.” Here, the term “militia” refers to the state’s National Guard.
Each of the 50 states, along with Washington DC and the three U.S. territories of Guam, Puerto Rico, and the Virgin Islands, maintains its own National Guard. These units operate under dual status, meaning they answer to both federal and state governance. This arrangement empowers governors to deploy them in response to natural disasters, civil unrest, and other local emergencies. However, the president retains the authority to activate a state’s National Guard, typically for deployment overseas.
State governors also have the option to request assistance from other states. For instance, Tennessee has deployed National Guard units to the border to aid Texas, reminiscent of their support during the war for Texas and the Battle of the Alamo. Advocates for states’ rights and sovereignty contend that border security falls within the purview of states, criticizing the federal government for its perceived inadequacy in securing the border. They view National Guard deployment as states exercising their right to safeguard their citizens within their own borders.
Proponents of federalism advocate for a distinct separation of powers between federal and state authorities, believing that states should be free to handle their own policing matters. This principle is reflected in the absence of a federal, uniformed police force in the United States, with each state and municipality maintaining its own law enforcement agencies. While the FBI operates at the federal level, its primary focus is on enforcing federal laws and addressing national security concerns.
Securing the border constitutes a critical national security priority falling squarely within federal jurisdiction. The Department of Homeland Security has identified narcotrafficking through the southern border as a major national security concern. Therefore, even in instances where the federal government is falling short in preserving national security interests, a state governor still has the obligation to combat drugs in his state.
Critics of the governor’s approach express concern over the militarization of the border and its potential ramifications on foreign policy, particularly regarding U.S.-Mexico relations. Supporters point out that since most illegals do not come from Mexico, Mexico could stop them at their southern border. Most conservatives would also ask why the U.S. should pay for Mexico’s inability to prevent illegal immigration in its own country.
Additionally, if Biden were not providing illegals with a path to citizenship and other inducements to come to the United States, the numbers would decrease, and militarization of the border would not be necessary.
Opponents further argue that Governor Abbott’s deployment of the National Guard to the border violates the Posse Comitatus Act (PCA), codified in Title 18, Section 1385 of the US Code. The Act prohibits the use of the US Army and Air Force to “execute the laws” within the United States, essentially barring them from functioning as domestic police forces. However, supporters of his National Guard deployment contend that the PCA should not be applicable to National Guard units activated by state governors because, when called to state duty, the National Guard operates as state, not federal, forces.
Theoretically, President Biden could activate the Texas Guard troops and deploy them overseas. Alternatively, he could possibly argue that he is justified in federalizing them, placing them under White House control. However, even in an emergency, the governor’s consent is usually required. So, unless President Biden wants to bring serious charges against Governor Abbott, it seems unlikely that he will attempt to wrest control of the National Guard from the governor’s authority. Instead, ongoing arguments and debates are expected, and there’s a possibility of a hearing before the Supreme Court. Eventually, funding may become a concern, as Texas is responsible for financing a state activation of its National Guard.
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