The Texas National Guard is at the center of a conflict between their own state’s governor and the federal government over Texas’ efforts to lay razor wire along the U.S./Mexico border.
The dispute became one of the top political controversies in the country this week after the U.S. Supreme Court and the Republican frontrunner both weighed in.
Texas guardsmen have been laying razor wire along the state’s border with Mexico, cutting off spots where migrants regularly cross the Rio Grande. The guard has had soldiers at the border since early 2021 when Texas Gov. Greg Abbott launched Operation Lone Star.
The federal U.S. Customs and Border Patrol agents have sought access to those spots, to process migrants that come across and to aid those in medical distress, including anyone caught in the river’s current.
The U.S. Supreme Court said this week that the Border Patrol agents could cut their way through the Texas Guard’s wire barriers. But Abbott has ordered his state’s guardsmen to continue to put wire up. Texas officials have said they have a right to “secure our border” and “preserve the rule of law, and protect the sovereignty of our State.”
That essentially leaves the Texas National Guard torn between Austin and Washington, D.C. Abbott claims his state has the constitutional right to defend itself. Washington officials, including the Biden administration and Border Patrol agents, insist that border security, along with national defense, is a federal job.
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One Texas National Guardsman told Task & Purpose on Friday that he is proud to deploy to the southern border, and he faults the federal government for not doing enough to protect the United States.
“I have served my country on active duty for nine years and now three years with the Texas Army National Guard,” said the Guardsman, who spoke on condition of anonymity to protect his identity. “As a Guardsman that has been activated to defend our border, nothing gives me more joy than to know that our governor is standing up for what is right, when the federal government will not.”
Abbott has argued that the razor wire is an effective way to prevent illegal immigrants from crossing into the United States from Mexico. But President Joe Biden’s administration has countered that the wire prevents the U.S. Border Patrol from helping migrants in danger and processing any migrants that make it into Texas.
The standoff between Abbott and the White House reached critical mass earlier this month when a woman and two children drowned on Jan. 12 while trying to cross the Rio Grande near Eagle Pass, Texas. The Border Patrol did not have any agents or surveillance equipment in the area at the time because the Texas National Guard and the state’s Department of Public Safety had erected fences and razor wire preventing federal agents from accessing the area.
On Jan. 22, the U.S. Supreme Court sided with U.S. Customs and Border Patrol officials who wanted to cut razor wire the Texas National Guard had helped put down on the border.
But Abbott has since argued that the Constitution gives his state the right of self-defense which “supersedes any federal statutes to the contrary.” That’s why the Texas National Guard has continued to lay razor wire, which prevents Border Patrol agents from having access to migrant crossing points, such as Shelby Park on the Rio Grande.
“The Texas Military Department continues to hold the line in Shelby Park to deter and prevent unlawful entry into the State of Texas,” the department said in a Jan. 23 statement. “We remain resolute in our actions to secure our border, preserve the rule of law, and protect the sovereignty of our State.”
Texas Attorney General Ken Paxton told Fox News Host Sean Hannity on Jan. 25 that Abbott will “keep putting razor wire up.”
Now former President Donald Trump, who has all but sealed the Republican nomination for president in this year’s elections, has called on other states to send their National Guardsmen to the southern border, and lawmakers such as Rep. Chip Roy (R-Texas) have called on Texas leaders to ignore the Supreme Court’s decision.
So far, the Republican governors of 25 states have signed a statement supporting Abbott and his argument that Texas has a constitutional right to self-defense.
“We stand in solidarity with our fellow Governor, Greg Abbott, and the State of Texas in utilizing every tool and strategy, including razor wire fences, to secure the border,” a statement from the Republican Governors Association says. “We do it in part because the Biden Administration is refusing to enforce immigration laws already on the books and is illegally allowing mass parole across America of migrants who entered our country illegally. “
Abbott’s decision to ignore the Supreme Court’s ruling sets up a possible confrontation between Texas National Guardsmen and the Border Patrol.
Even though Texas National Guardsmen have been tasked by the state with laying razor wire along the southern border, they are not obligated to carry out unlawful orders, said Eugene R. Fidell, who teaches military justice at Yale Law School.
“Only lawful orders must be obeyed, and what Gov. Abbott has done is set the stage for members of the Texas National Guard to claim that his orders to do what he’s doing are clearly unlawful,” Fidell told Task & Purpose. “And then, some brave member of the Texas National Guard is going to disobey orders; say, ‘I’m not doing that;’ and is going to get prosecuted, and it’s going to be a great case. I hope that person calls me.”
Biden also has the option of federalizing the Texas National Guard to prevent it from laying more razor wire and preventing Border Patrol agents from cutting the wire, Fidell said.
In 1957, President Dwight D. Eisenhower federalized the Arkansas National Guard after Arkansas Gov. Orval Eugene Faubus used Guardsmen to prevent black students from attending Little Rock Central High School despite the Supreme Court’s Brown v. Board of Education decision that segregation of public schools was unconstitutional. President John F. Kennedy also federalized the Alabama National Guard in 1963 to desegregate the University of Alabama.
There are no indications that the Biden administration intends to federalize the Texas National Guard so that it can remove the razor wire along the southern border.
Although the White House disagrees with how Abbott is using National Guardsmen, the governor is the “commander-in-chief” of his state’s National Guard, said John Kirby, coordinator for strategic communications at the National Security Council, at a Jan. 23 White House news conference.
Representatives from Abbott’s office and the Texas Military Department did not return phone calls and emails from Task & Purpose requesting comments for this story.
While this is not the first time that the National Guard has played a role in disputes between state governors and the federal government, Republican governors have used their states’ National Guards as part of partisan political fights in recent years, said Risa Brooks, a political science professor at Marquette University in Wisconsin.
Brooks cited two examples: When Oklahoma Gov. Kevin Stitt announced in 2021 that state National Guardsmen would not be punished for defying the Defense Department’s now-defunct COVID-19 vaccine mandate; and when South Dakota Gov. Kristi Noem raised private funds to deploy her state’s National Guardsmen to the southern border that same year.
“While there is a legal matter at issue over state versus federal authority in enforcing immigration law, the partisan theatrics are likely to make a bigger impression on many Americans,” Brooks told Task & Purpose. “What they see is the Texas governor claiming authority to use his state’s militia against the federal government, which just so happens to be headed by his political opponent, President Biden. The alarming message this sends is that it is okay to use the Guard as a weapon in the partisan wars.”
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