As Operation Lone Star — the border security initiative launched by Texas Governor Greg Abbott — approaches its third anniversary, tensions between the federal government and the state of Texas have reached a fever pitch. For the past four weeks, Texas National Guard personnel have occupied Shelby Park, a city-owned park along the Rio Grande River in Eagle Pass, Texas, denying U.S. Customs and Border Protection (CBP) agents entry to the park and obstructing their access to the adjoining section of the river. Now that the Supreme Court has ruled that the government may cut through razor wire Texas has placed along the U.S.-Mexico border — wire that similarly obstructs CBP agents’ ability to access the border and carry out their duties — some are calling for President Joe Biden to federalize the Texas National Guard and order it to stand down.
Biden should not act on these calls — at least, not yet. Federalizing the Texas National Guard would likely require invoking the Insurrection Act. Although such an invocation would almost certainly pass legal muster, the Insurrection Act should be a tool of last resort, and the bar for invoking it should be particularly high in today’s fraught political environment. There is still a chance for Biden to assert federal authority through the courts, and that is the better course of action here.
Federalizing the Texas National Guard Would Require an Insurrection Act Invocation
Each state and territory’s National Guard ordinarily operates under the command and control of its governor. However, there are a number of statutory authorities that allow the president to “call into federal service,” or “federalize,” the guard. Some of these powers are unilateral, while others require the relevant governor’s (or even the servicemember’s) consent. Most are designed to address the operational needs of the armed forces; for example, the federal military may need more troops, or more of a particular type of unit, in the event of a war or declared national emergency. These do not apply to the ongoing situation in Texas.
In the Texas case, two statutes are potentially relevant: 10 U.S.C. § 12406 and the Insurrection Act. Section 12406 is a troublingly ambiguous statute. The first sentence seemingly grants unilateral authority to the president to federalize the National Guard under certain circumstances. It reads:
(1) the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;
(2) there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or
(3) the President is unable with the regular forces to execute the laws of the United States;
the President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws.
The second sentence, however, provides that “orders for these purposes shall be issued through the governors of the States…” If the law is intended to grant unilateral authority to the president, then this is an odd choice of words on the part of Congress. Is the statute contemplating a non-consenting governor issuing orders to their guard forces to mobilize into federal service? What if the governor refuses?
The legislative history of Section 12406 is of little help. The statute originated as the fourth section of the Dick Act of 1903, the first in a series of congressional enactments that transformed the state militias into what is now the National Guard. The 1903 text made no reference to state governors, and unambiguously granted unilateral authority to the president. This language was left unchanged until 1956, when the statute’s second sentence was amended to its current phrasing as part of the recodification of Title 10. Unfortunately, as is often the case with the 1956 recodification process, there is little documentation to suggest whether and how Congress intended to alter the law’s meaning.
By contrast, Sections 252 and 253 of the Insurrection Act are undoubtedly unilateral and clearly designed for circumstances where a state is defying federal authority. Moreover, on those rare occasions in U.S. history when presidents have needed to take away control of a state’s National Guard from a misbehaving governor, they have always done so through the Insurrection Act, not through Section 12406. On balance, it is safest to assume that if Biden decided to federalize the Texas National Guard in response to Texas’s ongoing use of the guard to allegedly interfere with the execution of federal law, he would have to invoke the Insurrection Act.
President Biden Should Not Invoke the Insurrection Act at this Time
There is no question that it would be lawful for Biden to invoke the Insurrection Act. To the extent that Texas’s actions are deliberately preventing the U.S. government from performing immigration and border security duties, they would likely qualify as obstructing the execution of federal law, and possibly as a rebellion against federal authority. But even if that were not the case, the Insurrection Act makes the president the sole judge of what constitutes obstruction or rebellion. As the Supreme Court ruled in 1827, “[T]he authority to decide whether [a given situation warrants invoking the Insurrection Act] belongs exclusively to the President, and… his decision is conclusive upon all other persons” (emphasis added). This dangerously unfettered discretion is precisely why the Brennan Center, where I work, has proposed reforms to the Insurrection Act. If Biden were to invoke the law, it is unlikely that a court would feel empowered to review that decision, let alone overturn it.
The more relevant question is whether it would be appropriate for Biden to invoke the Insurrection Act in Texas. The Insurrection Act should be seen as an option of last resort, and the gravity of a president using it to override a state governor and unilaterally take control of the state’s National Guard should not be understated. As matters stand, invoking the law would be premature. In the United States, when the federal government and the states disagree, they ordinarily resolve their disputes in court. Despite Texas’s many attempts to usurp federal immigration authority over the past three years, the Biden administration has not pursued an aggressive litigation strategy. There is still a great deal of room to seek judicial intervention.
This is not Little Rock in 1957—at least not yet. In that instance, Governor Orval Faubus was using the Arkansas National Guard to openly defy a federal court order to immediately integrate Little Rock Central High School. President Dwight Eisenhower did not invoke the Insurrection Act until the federal judge in the case had exhausted all the normal means available to him to see that his orders were enforced and there was a clear, imminent threat of anti-Black mob violence around the school. In other words, Eisenhower treated the Insurrection Act as a last resort, waiting until Faubus had left him no other choice.
Notwithstanding the suggestions of certain Democrats and even some Republicans, the Supreme Court has not ordered Texas to do anything. Rather, the Court has simply vacated the Fifth Circuit injunction that barred CBP agents from cutting through Texas’s razor wire. CBP is now free to cut through the wire, but Texas is equally free — at least under the Supreme Court’s ruling — to put it back up. There is currently no court order in place for Texas to violate.
There is another reason — one based on prudential considerations — for Biden to hold off on invoking the Insurrection Act unless doing so is absolutely necessary. In the absence of any safeguards within the law itself, the only effective restraint on presidents is the fact that the law has not been invoked for 32 years, and the political cost of breaking that seal would likely be very high. Any president should be extremely cautious about invoking the Act, thereby potentially lowering the political cost of future invocations, when there is a presidential candidate waiting in the wings who reportedly plans to invoke it on “Day One” if he is elected.
Of course, if Abbott directs the Texas National Guard to defy a federal court order, or otherwise escalates the situation in a manner that will not permit delay (for example, by attempting to arrest federal officials or otherwise threatening an armed standoff), then Biden may be forced to invoke the Insurrection Act. Unless or until that happens, he should be in no hurry to deploy a tool that is intended to be used only as a last resort and that has such tremendous potential for abuse.