Rep. Joaquin Castro, D-Texas, is urging Biden to federalize the state's National Guard, and some legal experts say the Insurrection Act would be a more extreme measure
By Nicole Gaudiano
President Joe Biden has several legal options to block Texas Gov. Greg Abbott’s enforcement actions at the U.S.-Mexico border after a Supreme Court ruling against Abbott’s tactics, according to a Texas Democratic congressman who is urging Biden to fight Abbott’s “chaos.”
Staff for Rep. Joaquin Castro, D-Texas, who on Tuesday suggested Biden could federalize the Texas National Guard, pointed to arguments that constitutional law experts outlined in July on steps Biden could consider after Abbott in an earlier move directed guardsmen and state police to return undocumented individuals to ports of entry.
The escalation between Biden and the Texas governor over who has authority over border enforcement is threatening to become a real constitutional crisis over federal versus state powers, and so far the White House is winning, with the backing of the Supreme Court. But some Texas Republicans are agitating for a bigger fight, with some tossing around the phrase "civil war" over the crisis.
Castro’s concern came as Abbott voiced opposition to the Supreme Court's Monday ruling that the federal government has the authority to remove razor wire installed by the state at the southern border. Abbott posted a photo of Texas guardsmen, saying they continue to “hold the line in Eagle Pass.”
“Congressman Castro repeated his call to federalize the Texas National Guard … because Governor Abbott is defying the Supreme Court's order and installing more razor wire along the Rio Grande,” wrote Lauren Sierra, Castro’s press secretary, in an email to The Messenger.
On Wednesday, Abbott wrote on X that Texas continues to "deploy this razor wire to repel illegal immigration."
The White House has not responded to multiple requests for comment. Administration officials pointed out to The Messenger that Abbott can put up razor wire but Border Patrol can cut it down any time they need to do their jobs.
Biden could federalize the Texas National Guard and order it to stand down, removing most of the personnel and resources Abbott needs, argued Katherine Yon Ebright and Joseph Nunn of the Brennan Center for Justice’s Liberty and National Security Program in their July piece for Just Security.
The authors referenced Abbott’s July executive order in the piece, but Castro’s office pointed to their arguments as pathways for Biden to respond now to Abbott’s “unconstitutional border actions.” The memo authors could not immediately be reached for comment.
Under U.S. Code, the president can call a state’s National Guard into service when there is an invasion, a rebellion or danger of rebellion against the federal government’s authority, or when the president is unable with regular forces to carry out U.S. laws, they noted.
“An argument could be made that Texas’s actions, insofar as they represent an attempt to usurp the federal government’s immigration enforcement powers, constitute a rebellion against the authority of the federal government,” they wrote, again, in response to Abbott’s July executive order. “But there is also a strong—and less politically fraught—argument that Texas is interfering with the execution of federal law by civilian authorities.”
They also wrote that the president wouldn’t need to invoke the Insurrection Act to call Guard forces into federal service. “That’s a crucial point, as there could be significant political blowback from such an invocation,” they wrote.
But they said the Insurrection Act would be “an available alternative” if there was any question about the sufficiency of U.S. Code regarding the National Guard.
Sierra, the Castro spokesperson, said Castro has raised concerns about Abbott’s “obstruction of federal immigration law” throughout “Operation Lone Star,” an Abbott initiative from 2021 that sent thousands of guardsmen and state police officers to the border. Throughout that operation, she said, Castro has “called on the Biden administration to intervene to protect both migrants and border communities.”
After Abbott ordered Guard troops to deny federal authorities access to the border earlier this month, Castro urged Biden to consider federalizing the Texas National Guard, she wrote.
"Greg Abbott and the Republicans in Texas have become bloodthirsty,” Castro said then, according to Texas Public Radio.
Rebecca Morin contributed to this story.