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Biden Faces Debate Over Taking Control of Texas National Guard to Remove Border Razor Wire

A heated debate has ignited between Democrats and Republicans regarding whether President Joe Biden should exercise his authority to take control of the Texas National Guard.
The contention arises from a recent Supreme Court ruling, raising questions about the president’s ability to enforce compliance with the decision.

Calls to Federalize Texas National Guard

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Democratic figures like Texas Representative Joaquin Castro and former Congressman Beto O’Rourke are among those urging President Biden to federalize the Texas National Guard.

Removing Razor Barb Wires the Point of Contention

Juarez, Mexico, 12-21-2022: Texan National Guard places wire and barbed wire on the banks of the Rio Grande to prevent migrants from crossing into the United States to request humanitarian asylum. — Photo by Laflota

This move aims to facilitate the removal of razor wire barriers erected along the U.S.-Mexico border by Texas law enforcement.
The wire installations were intended to deter illegal immigration.

Supreme Court’s Ruling

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On January 22, the Supreme Court issued a 5-4 ruling in favor of the Biden administration, asserting that the razor wire constructed in Eagle Pass violated the law and obstructed Border Patrol agents from detaining individuals attempting to cross the border through the Rio Grande.

Governor Abbott Refuses to Budge

Credit: Gov. Greg Abbott / National Governors Association

However, Texas Governor Greg Abbott contends that President Biden has not fulfilled his presidential responsibilities by not addressing the record levels of illegal border crossings during his tenure.
Abbott characterizes the situation as an “invasion” and invokes Texas’ constitutional right to self-defense and protection.

Abbott’s Decision to Maintain Razor Wire

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Governor Abbott has thus authorized the Texas National Guard to persist in the installation of razor wire along the border.
Furthermore, he has denied Border Patrol agents access to Shelby Park, a riverfront location in Eagle Pass frequently used by migrants for illegal border crossings, to remove the wire barriers.

Biden’s Authority to Federalize Texas National Guard

Credit: US President Joe Biden attends an event in the state of Pennsylvania. August 30, 2022, Wilkes Barre, Pennsylvania, USA: US President Joe Biden speaks on security and firearms during an event in Wilkes Barre, Pennsylvania, on Tuesday (30) — Photo by thenews2.com

Under Title 10 of the U.S. Code, President Biden possesses the authority to federalize the Texas National Guard, placing the state’s troops directly under his command.
This action could alter the current arrangement wherein the Texas National Guard operates under Title 32, with the governor serving as their commander-in-chief.

Historical Precedent: Eisenhower’s Intervention

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Historically, in 1957, President Dwight D. Eisenhower exercised this authority by federalizing the Arkansas National Guard.
This move aimed to protect nine Black students enrolling at Central High School in Little Rock.

Response To Gov. Orval Faubus’ Actions

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It followed the actions of Arkansas Governor Orval Faubus, who had previously deployed the troops to obstruct the entry of Black students into the all-white school, despite a Supreme Court ruling deeming segregation in public schools unconstitutional.

Legal Interpretations and Challenges

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However, questions have emerged regarding President Biden’s ability to federalize the Texas National Guard in the present circumstances.
Some argue that the president may lack the legal justification to do so.

Title 10 and Title 32 Distinction

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Title 10 can potentially supersede Title 32, but typically only during a national emergency.
To federalize the Texas National Guard in this context, President Biden would need to activate them to safeguard the border.
Failing this, the order may be deemed unlawful, as noted by retired Air Force General Robert Spalding.

Potential Implications of Federalization

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Presumably, if the Texas National Guard were federalized, Border Patrol agents would swiftly remove the contested razor wire.
However, this move could trigger broader implications and legal challenges for President Biden.

Political and Legal Consequences

Some suggest that such an action might lead to legal and political repercussions.
Texas Attorney General Ken Paxton argues, “That goes to the whole question, why is he declaring an emergency? Obviously, we have one, right? And now he’s admitting it. I think that becomes a political issue for him, it becomes a real problem for him politically.”

Abbott’s Response and Supreme Court Appeal

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Governor Abbott is not only maintaining his defiance of the Biden Administration but has also indicated a willingness to appeal any presidential decision to the Supreme Court.

Legal Experts Disagree

Professor Peter Shane, an expert in constitutional law and law lecturer at New York University, rejected Abbott’s argument that he can exercise absolute power in Texas, claiming that the state is experiencing an “invasion” by illegal immigrants.
He told reputable news “This is nonsense. Governors have no power to declare anything under the U.S. Constitution, nor does the Constitution give states any legal power to countermand the exercise of federal authority.” 

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