Posted on 01/29/2024 6:30:36 AM PST by Red Badger
Texas Democratic politicians, such as Rep. Joaquin Castro and failed gubernatorial and Senate candidate Beto O’Rourke, are urging President Joe Biden to seize control of the Texas National Guard, which Republican Gov. Greg Abbott has mobilized to help secure the Texas border.
Abbott did so in the face of the deliberate and intentional inaction by the Biden administration to make sure the border stays open so millions of illegal aliens could continue to flood across from Mexico.
Under the circumstances, any such move by the president would be an abuse of the applicable law.
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.
Biden could go to the extreme by trying to use the Insurrection Act of 1807 to take over the Texas National Guard. The Insurrection Act authorizes the president to federalize the National Guard under certain narrow and exceptional circumstances. The last time it was invoked was by President George W. Bush to help quell the deadly widespread riots in 1992 in Los Angeles after the arrest and beating of Rodney King, when state authorities were unable to cope with the violence and mayhem.
Under 10 U.S.C. § 252, the president can “call into Federal service the militia of any State” 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.”
Clearly, there is no insurrection going on in Texas as defined in that law.
Nor is Texas violating any court order issued in “the ordinary court of judicial proceedings.” The state has been placing barbed-wire fencing on state-owned and private property, and no court has ordered Texas to remove or cease installing that fencing.
The only thing that has happened is that the U.S. Supreme Court vacated—while the case between Texas and the federal government is on appeal—an injunction that prevented the feds from removing the fencing. But nothing prevents Texas from continuing to put in more fencing, even after it has been removed.
Biden would also be hard-pressed to legitimately use another part of the Insurrection Act, 10 U.S.C. § 253, which allows a president to use a state militia (the National Guard) if an insurrection or domestic violence “hinders the execution of the laws of that State, and of the United States.”
It is Texas that is trying to ensure that federal laws are being enforced and complied with. And it is the Biden administration that is “hindering” the execution of the laws of the United States with its abject refusal to enforce our immigration laws, to prevent illegal aliens from crossing the border, and its unlawful granting of mass parole to those aliens once they are in the United States.
If Biden tries to call forth the Texas National Guard, the most likely federal statute for him to try to use, according to a source familiar with National Guard operations, is 10 U.S.C. § 12406. This provision allows the president to “call into Federal service” the National Guard under one of three circumstances: an “invasion by a foreign nation”; “a rebellion or danger of a rebellion against the authority of the Government of the United States”; or the president’s inability “with the regular forces to execute the laws of the United States.”
The fatuous argument that Biden would have to make is that Texas is engaged in a rebellion against the authority of the United States or some such other rubbish. But as already noted, there has been no rebellion by Texas and no court order of any kind finding that Texas is somehow violating federal law or refusing to comply with federal courts.
The third precondition obviously also does not apply. A claim that any of these preconditions have been met would be met with derision.
Instead of carrying out his duty as president to “take Care that the Laws be faithfully executed,” which includes our immigration laws, Biden has violated his oath of office and is acting like a bully to violate the law, threaten states like Texas that are faced with a desperate situation, and thwart the will of the people who want a secure border and the rising tide of illegal immigration stopped.
If the Biden administration would spend as much time fighting illegal immigration as it does fighting border states that are actually trying to do something about the problem, we might begin to see some progress. But don’t hold your breath.
BTTT
Biden is really pushing his luck. I would not be surprised to see a palace revolt, starting with his protective detail.
“A number of federal statutes govern the National Guard, which is the modern equivalent of state militias and a reserve component of our military.”
The NG is not and never has been the ‘moderne equivalent of state militias’. The state militias were independent of the federal government and could not be brought under federal control. In fact, several states have initiated ‘state militias’ independent of the NG.
Nah, they'll just activate the unit and send them to Sinai, KFOR, or crappy assignment in Iraq/Jordan/Syria.
Biden can do what he likes, what ever it is. We are about to go to war with Iran—He will have War Powers to do any rash act he wants. If anyone stands against him—he can send in the FBI, seize the Congress and arrest all GOP Congress critters for this charge or that—being MAGA Trump followers or anything he can make up. The Nation is DONE.
I wouldn’t rule out any of those possibilities.
Laws? We don’t need no stink n laws.
“A number of federal statutes govern the National Guard, which is the modern equivalent of state militias and a reserve component of our military.”
“The NG is not and never has been the ‘moderne equivalent of state militias’. The state militias were independent of the federal government and could not be brought under federal control. In fact, several states have initiated ‘state militias’ independent of the NG.”
And in fact, Texas is one of those states. I have started paperwork to join the Texas STATE Guard after retiring from the military in 1995. I challenge all others who live in Texas under the age of 70 to do the same.
Info can be found here: https://tmd.texas.gov/state-guard
I doubt that. Most of the "warriors" in the military are too busy getting sex-change surgery, trying to figure out which bathroom to use, engaging in homo activity, or suing for racial discrimination, etc.
There are very few "warriors" left in the military, and no real MEN want to enlist today. The military of the former USA is a joke, intentionally.
How is this possible when DC is not mentioned in the US Constitution, Art IV Sect 4 as a sovereign state, nor was it raised to that status by a Constitutional Convention? All the states have governors. DC has a mayor.
To correct the insanity put forth by Biden, the several States should send all their Fed illegal alien 'parolees' to DC for further processing of immigration in DC's political 'neutral' space.
biden
=
rogue
scofflaw
crook
liar
perv
traitor
.
I remember those years.
Man of lawlessness.....................
“Clearly, there is no insurrection going on in Texas as defined in that law.“
Clearly this guy has t figured out that insurrection is what that SAY it is.
They can and will cite US 10. 252 whenever they want.
That sounds to me like valid legal grounds for an impeachment.
Unfortunately, in the past few years, impeachment has become a bludgeon which the majority in Congress uses to pound on the opposing party President. It has lost its gravity.
Biden is really pushing his luck. I would not be surprised to see a palace revolt, starting with his protective detail.
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Title 10 authorizes State NG’s federalization. However, if the Governor of a State doesn’t give approval of HIS NG being federalized, ( resistance), about the only thing the Federal Government can do is stop the spending on their military equipment and support, then try to move in and seize their assets. Knowing Texas,Texans, and NG members, good luck with the general population accepting that. Any move by senile Joe will undoubtedly be meet by extreme resistance by Texas citizens.
“ § 304. Enlistment oath
Each person enlisting in the National Guard shall sign an enlistment contract and subscribe to the following oath:
‘‘I do hereby acknowledge to have volun- tarily enlisted this ll day of llll, 19l, in the llllll National Guard of the State of llllll for a period of ll year(s) under the conditions prescribed by law, unless soon- er discharged by proper authority.
‘‘I, llllllll, do solemnly swear (or af- firm) that I will support and defend the Con- stitution of the United States and of the State of llllll against all enemies, foreign and domestic; that I will bear true faith and alle- giance to them; and that I will obey the orders of the President of the United States and the Governor of llllll and the orders of the officers appointed over me, according to law and regulations. So help me God.’’
….enemies foreign and domestic….most in Texas fully realize senile Joe is a domestic enemy…..
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