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Thoughts on the Texas National Guard
by
ProgressiVoice
Community
(This content is not subject to review by Daily Kos staff prior to publication.)
Saturday, Jan. 20, 2024
Saturday, Jan. 20, 2024
at
7:17:06pm PST
I've been wondering today about the possibility of President Biden Federalizing the Texas National Guard, which Governor Greg Abbott has deployed to prevent the US Border Patrol from performing its duties. One objection that's been raised in private conversations has been the Posse Comitatus act, which prohibits the use of the military in law enforcement roles. The counter to this is the Insurrection Act, which temporarily suspends Posse Comitatus, according to the Brennan Center.
The Insurrection Act requires the President to order "insurgents" to disperse before Federal troops can be deployed. In this case, the "insurgents" are Texas National Guardsmen following the orders of their Governor. However, since the Governor has ordered them to prevent the US Border Patrol from performing its duty, the legality of those orders is suspect.
According to a Legal Sidebar from the Congressional Research Service dated June 15, 2023 Congress is empowered to authorize calling out the militia to execute Federal law. Further, "Congress has used this power to authorize the President to use the regular Armed Forces and the National Guard in cases of insurrection against state governments, obstruction of federal laws, or protecting civil rights." Since border security is a Federal responsibility, not a State one, it would appear Gov. Abbott's orders are an obstruction of Federal law.
I maintain President Biden has the authority to Federalize the Texas National Guard and order them to permit the Border Patrol to perform its duty.