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Can the President Federalize the National Guard?

 

Lt. Col. Ryan P. Hovatter, Florida Army National Guard

 

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The migrant crisis has been growing for the past several years, but a more recent predicament was the rift between the federal government and the state of Texas over the governor’s use of the Texas National Guard (TXNG) to enforce his policies in seeming defiance of court orders. The fight was between the Biden administration and Texas governor Gregg Abbott, who was critical of the administration’s management of immigration and the border. Abbott started Operation Lone Star less than two months after President Joseph R. Biden took office in 2021.¹ At the height of the confrontation in the first few months of 2024, several politicians called for the president to assert federal authority over the border and to even take control of the TXNG.

Abbott began Operation Lone Star as a state-funded operation to enforce immigration law. The operation was performed by the TXNG, the Texas State Guard, and Texas state law enforcement agencies.² On the one hand, the state supported the U.S. Customs and Border Protection agency in enforcing immigration law, but on the other hand, Abbott used his state forces in ways that countered Biden administration policies.

The National Guard frequently works alongside state and federal authorities during disaster response or civil disturbances. The Department of Defense calls these missions defense in support of civil authorities (or simply, DSCA).³ Governors usually keep National Guard troops under their control during DSCA operations, and there is good reason. If National Guard troops were under federal control, they would be unable to act as law enforcement. In the 1992 response to Hurricane Andrew—one of the most devastating storms in U.S. history—the Department of Defense wanted to federalize the Florida National Guard to simplify the chain of command.⁴ The Florida governor and the chief of the National Guard Bureau insisted that the governor retain the Florida National Guard under state control so they could perform vital law enforcement missions.⁵ Had the Guard troops been federalized, the Posse Comitatus Act, which prohibits use of the federal military from acting as executors of the law, would have prevented them from arresting lawbreakers.⁶

Texas Blocks Federal Agents’ Border Access

Although Abbott was a vocal opponent of the administration’s policies, TXNG troops appeared to be working cooperatively with U.S. Customs and Border Protection and other federal and local law enforcement. Historically, there is seldom animosity between the National Guard and law enforcement, especially since many National Guard troops are employed in their civilian jobs by law enforcement agencies.

After TXNG troops blocked U.S. Border Patrol (USBP) agents from entering a public park along the Mexican border on 12 January 2024, however, the relationship between the TXNG and federal law enforcement significantly changed.⁷ On Abbott’s order, the TXNG seized Shelby Park in Eagle Pass, Texas, and blocked the park’s access by erecting crude barriers consisting of shipping containers and mounds of concertina wire around it.⁸ TXNG troops also emplaced buoys in the river to discourage swimmers and razor wire on the bank to halt those brave enough to hazard the swim. The buildup of barriers and floats had been long in the works, but the total seizure of the park was sudden. Eagle Pass mayor Rolando Salinas Jr. expressed frustration over the politicization of immigration and of the governor’s indefinite seizure of the city’s park without the city’s consent. Shelby Park is a forty-seven-acre public park containing running trails, a boat ramp, and even a golf course along the Rio Grande River.⁹ It is where the small city holds public events like the International Nacho Festival and the International Friendship Festival, which both celebrate the population’s Mexican roots. Salinas said of the park’s seizure, “It is not a decision that we agreed to. This is not something that we wanted. This is not something that we asked for as a city.”¹⁰ However, the mayor and city council decided not to pursue a lawsuit against the state.

U.S. Customs and Border Protection accused the TXNG of blocking access to the park and river where USBP agents said they needed to use a boat ramp to detain and potentially treat some immigrants caught in the wire on the U.S. side of the river. To add to the urgency, a mother and her two small children lay dead on the other side of the wire, having drowned while attempting to cross.¹¹ The state of Texas countered by accusing the federal government of destroying state property, failing to control immigration, and impeding on their state sovereignty.¹²

Less than two weeks later, the U.S. Supreme Court issued an order that effectively allowed USBP, under the Department of Homeland Security (DHS) to cut or remove concertina wire.¹³ It may seem like this happened suddenly, but the legal course began in October 2022 when Texas sued the federal government for destroying its property after USBP agents cut and removed wire. In the first court case, the district judge ruled that Texas did not present sufficient evidence to prove that DHS had violated law, and opined that USBP could cut and remove wire.¹⁴ The state appealed to the U.S. Court of Appeals for the Fifth Circuit, claiming that USBP was removing wire to create paths for migrants and had even used a forklift to destroy concertina wire.¹⁵ The court granted an emergency temporary restraining order against DHS on 30 October to give time for the court to review the appeal.¹⁶ The court stressed that the temporary restraining order did not apply when migrant lives were in danger, that USBP could cut or remove wire in a medical emergency, but it firmly stated that removing wire to prevent future medical emergencies was not allowed. The court also issued an injunction on the lower court’s ruling until an appeal could be resolved.¹⁷ The U.S. Supreme Court picked up the case and issued a succinct order on 22 January 2024 vacating the Fifth Circuit’s injunction, which meant the first ruling stood.

Media reports stated that the Supreme Court’s order upheld the precedence that the federal government, not the state, has sole authority in securing the national border and authorizes the federal government to cut or remove wire along the national border.¹⁸ In the weeks following the seizure of Shelby Park and the Supreme Court order, every Republican governor (except Vermont) voiced their support for Abbott and some went so far as to promise deploying some of their own National Guard troops to support Operation Lone Star.¹⁹ To counter this, Reps. Greg Casar and Joaquin Castro—both Texans—called for the president to federalize the TXNG to remove them from Abbott’s control.²⁰ Adding to their voices was former Texas representative Beto O’Rourke who, on the social media platform X, wrote that “Abbott is using the Texas Guard to defy a Supreme Court ruling. When Gov. Faubus did this in 1957, Eisenhower federalized the Guard to ensure compliance with the law. Biden must follow this example of bold, decisive leadership to end this crisis before it gets worse.”²¹

Historical Precedents for Federalizing the National Guard

There are two ideas that should be discussed. The first is simple. Other states can send their National Guard under state control to Texas. Congress granted consent to states to enter into mutual aid agreements, called Emergency Management Assistance Compacts, with each other in 1996. The Emergency Management Assistance Compacts law explicitly authorizes the use of a state’s National Guard when a governor declares a disaster and requests support from another state.²² The purpose of these compacts is to give governors more options in times of crisis. Again, it should be noted that while federal troops could support in a crisis, they cannot perform law enforcement in the United States. Furthermore, federal troops work for federal commanders, but other state National Guard troops would report to the governor of the supported state.

The second point needs more explanation and historical context. The president can “call forth” the National Guard of any state or territory to enforce federal authority or suppress domestic violence. There are only four precedents within the last century where a president has taken the National Guard away from a rogue governor. These instances occurred in the decade after the U.S. Supreme Court declared in 1954 that racially separate schools, no matter how “equal,” were unconstitutional in Brown v. the Topeka Board of Education.²³ It took a couple of years for the majority of states to comply with the court’s monumental decision and, in some cases, there was minor violent opposition. In fact, it was just two years after the decision that the governors of Kentucky and Tennessee used their National Guard troops to assist in school desegregation.²⁴ But the most familiar instances of National Guard troops in school desegregation revolve around the few governors who chose to defy the law.

The first and most famous instance occurred in Little Rock, Arkansas, in 1957. It was on this occasion that President Dwight D. Eisenhower called forth the Arkansas National Guard to remove them from under the power of the Arkansas governor who sought to keep public schools segregated. Eisenhower set a precedent in dealing with intransigent governors that was only followed by one other. President John F. Kennedy called forth the Mississippi National Guard in 1962 and the Alabama National Guard twice in 1963 to enforce compliance with the law.

All four of these instances have had incredible lasting impacts, not only in use of the National Guard but also in American society. All four revolved around the protection of equal rights of American citizens. Politicians and journalists tend to focus on the first instance and fail to tie the 1957 federalization with the other three instances.²⁵ It is worth delving into the details of Eisenhower’s decision to understand the similarities and differences between the events of 1957 and 2024.

Arkansas’s Governor Faubus Defies the Supreme Court

Arkansas governor Orville Faubus chose to make a defiant stand for racial segregation at Little Rock in 1957, openly defying the court’s decision. Faubus employed his state’s National Guard to keep nine Black students from attending Little Rock Central High on the first day of school (4 September 1957).²⁶ Faubus told the public and Eisenhower that he was merely trying to keep the peace as a mob of segregationists gathered outside of the school.

Federal district Judge Ronald Davies weighed in, declaring that the governor had defied the law in obstructing integration and issued a 20 September injunction ordering Faubus to remove the National Guard and refrain from any further obstruction. Faubus continued to defy the law, placing Eisenhower in a position where he had to act.

Eisenhower had one option to remove the National Guard from Faubus’s control. The president could issue an executive order based on the Insurrection Act of 1807, codified in Title 10 of the U.S. Code under sections 332 to 334 (since renumbered as 252 to 254). Section 332, regarding the “use of militia and armed forces to enforce Federal authority,” authorized the president to call into federal service the National Guard of any state “and use such of the armed forces, as he considers necessary to enforce those laws” when he considered that unlawful obstructions made it impracticable to enforce the law by ordinary judicial proceedings.²⁷ Section 333, “Interference with State and Federal Law,” similarly authorized the president to use the militia or the armed forces, or both, to suppress domestic violence or conspiracy, which “hinders the execution of the laws” and when “any part or class of its people is deprived of a right, privilege, immunity, or protection named in the Constitution.”²⁸ Section 334 gave the president authority to order the mob to disperse.²⁹

Invoking these sections of the Insurrection Act, Eisenhower issued Executive Order 10730 on 24 September, the first federalization of the militia for domestic disturbance since 1867, and the first time the president used an executive order and a proclamation to call out troops for this purpose.³⁰ The order directed the Arkansas National Guard into federal service and to “take all appropriate steps to enforce any orders of the United States District Court” with respect to the enrollment and attendance at Little Rock’s public schools.³¹

The unprecedented executive order placed the Arkansas Guardsmen in a dilemma where they had to choose to either follow orders of their governor or their president. Since the 1933 National Guard Mobilization Act, National Guard troops have been an integral component of the U.S. Army and have had a dual-oath to their governor and to the president.³² The oath, which has only had minor revisions since 1933, states that an officer will “support and defend the Constitution of the United States and the Constitution of the State of ______ against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will obey the orders of the President of the United States and the Governor.”³³

The decision must have weighed heavily on the Arkansas adjutant general, Maj. Gen. Sherman T. Clinger. The oath does not raise the obligation to obey the orders of the president over the governor, but it states above all that an officer will support and defend the constitutions of the United States and the state. What may have convinced Clinger to obey the president over the governor was the fact that the courts had declared the governor’s actions unconstitutional. While neither the governor nor lieutenant governor responded to Eisenhower’s order, Clinger did and proved that National Guard troops would obey the president.³⁴ The issue may seem clear in hindsight, but desegregation was hotly contested then. Many in the Department of Defense privately feared that the National Guard troops would ignore the president’s order and continue to obey their governor. Twelve years after the Little Rock confrontation, Maj. Gen. Winston P. Wilson, chief of the National Guard Bureau, remarked on the loyalty of Guardsmen, stating that “many of them believe in segregation, but they follow orders from the president and do their duty.”³⁵

Further Federalizations of the National Guard

A U.S. president has only invoked their authority to call forth the National Guard and the armed forces to enforce federal authority under section 332 in four instances.³⁶ All were to ensure the lawful desegregation of schools. Eisenhower paved the way with his executive order federalizing the entire Arkansas National Guard to remove them from their governor’s use. President John F. Kennedy followed suit and activated a state’s entire National Guard on three occasions: once in 1962 to quell violence when the first Black Mississippi college student, James Meredith, matriculated at the University of Mississippi; and twice more in 1963 to ensure school integration in Alabama.³⁷ It was in this last call up under the Insurrection Act in June 1963 that Brig. Gen. Henry V. Graham, a career Alabama Guardsman who was once the governor’s adjutant general, stood before his governor who was blocking the entrance of two Black students from the University of Alabama, saluted and said, “It is my sad duty to ask you to step aside under the orders of the President of the United States.”³⁸ The National Guard followed the orders of the president on all four occasions where the president took them from under the governor’s control.

Differences in the Supreme Court Decisions of 1954 and 2024

While there are some similarities between today, mainly defiant governors making a stand for state sovereignty or state’s rights, there are many differences. The main difference is that the Supreme Court in 1954 issued a substantial decision that declared segregation unconstitutional. A federal judge then removed any ambiguity by declaring that Faubus was obstructing justice. The Supreme Court’s order in January 2024 consisted of only three sentences, two of which merely stated that the case was brought to the court and that four members disagreed. The court did not even take the time to write an opinion. The only meaningful sentence dryly stated, “The December 19, 2023 order of the United States Court of Appeals for the Fifth Circuit, case No. 23-50869, is vacated.”³⁹ This is hardly the same conviction produced by the 1954 Supreme Court.

As Joseph Nunn, of the Brennan Center for Justice, noted shortly after the decision, “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.”⁴⁰

The most important argument for calling forth the National Guard was for the president to affirm the power of the court and reassert federal responsibility over the border. That would be a long struggle, however. Even after keeping the Arkansas National Guard on federal orders for eight months, it did not completely resolve segregation. Within months after the federalized troops withdrew, Faubus closed all four of Little Rock’s public high schools in 1958, in order to circumvent the court’s order.⁴¹ An entire year existed where Black children and the majority of White children in the city did not attend school. The only option Faubus left for White families was to enroll their children into private schools, which he incorrectly claimed the federal government could not force to integrate.⁴² The struggle for federal supremacy regarding integration continued until 1963, spanning nearly six years and two very different presidential administrations under differing parties.

An additional problem with calling forth the TXNG would be that the president may have had to call forth the National Guard of other states, like Florida, whose governor promised to send one thousand troops to Texas for Abbott’s use. Eisenhower and Kennedy were able to deal with one state and its National Guard at a time.⁴³ The situation in Texas involves not only the TXNG but also other contributing states’ National Guards as well.

Eisenhower’s decisive action in 1957 did not end the standoff immediately and was only used as Eisenhower’s last resort. Nunn described the president’s option of invoking the Insurrection Act as using a “nuclear bomb” to show its last resort use and political fallout.⁴⁴ However, unlike the actual nuclear bombs that ended the Second World War, Eisenhower’s use of the Insurrection Act did not end the war on segregation. The Arkansas governor found other ways to challenge federal authority and when he was finally subdued, Kennedy had to federalize troops in two more states to assert it. These four instances should not be taken individually. Another way to frame the past is that a moderate Republican Eisenhower and a Democratic Kennedy used the federalization of the National Guard sparingly as a tool to combat conservative governors in Southern states over the course of six long years who were in clear violation of specific law. The historical evidence shows that, while it is well within the president’s constitutional powers to federalize a state’s National Guard to uphold the law, it is an uncommon practice.

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Notes

1. “Operation Lone Star,” Office of the Texas Governor, accessed 6 November 2024, https://gov.texas.gov/operationlonestar; also see collection of news stories from the Texas Tribune at https://www.texastribune.org/series/operation-lone-star/.
2. Ewan Palmer, “What Happens If Greg Abbott Expands Texas State Guard?,” Newsweek, 29 January 2024, https://www.newsweek.com/greg-abbott-militarizes-texas-state-guard-border-1864924.
3. Joint Publication 3-28, Defense Support of Civil Authorities (Washington, DC: U.S. Government Publishing Office, 29 October 2018), https://www.jcs.mil/Portals/36/Documents/Doctrine/pubs/jp3_28.pdf.
4. Michael D. Doubler, I Am the Guard: A History of the Army National Guard, 1636–2000 (Washington, DC: U.S. Department of the Army, 2001), 358, https://www.nationalguard.mil/Portals/31/Documents/ARNGpdfs/I%20am%20the%20Guard.pdf.
5. Ibid.
6. Ibid.
7. Alan Cunningham, “Deaths on the Border: The Argument for Charging the Texas Army National Guard,” Jurist News, 26 January 2024, https://www.jurist.org/commentary/2024/01/texas-national-guard-border/. Texas National Guard troops occupied the Eagle Pass site on 10 January and blocked federal agents from entering on 12 January.
8. Uriel J. Garcia, “In Eagle Pass, a Tense Border Standoff Between Texas and the Federal Government Is Reaching a Crescendo,” Texas Tribune, 22 January 2024, https://www.texastribune.org/2024/01/22/texas-border-patrol-immigration-enforcement-eagle-pass-park/.
9. Ibid.
10. Ibid.
11. Dan Katz, “Mother and Two Children Drown in Rio Grande near Eagle Pass Where Texas Is Blocking Access to Border Patrol,” Texas Public Radio, 13 January 2024, https://www.tpr.org/border-immigration/2024-01-13/three-drown-in-rio-grande-after-texas-blocks-border-patrol-from-rescue.
12. State of Texas v. U.S. Department of Homeland Security, No. 23-50869 (5th Cir. 2023) at 2, 4, https://caselaw.findlaw.com/court/us-5th-circuit/115633389.html.
13. William Melhado, “U.S. Supreme Court Says Texas Can’t Block Federal Agents from the Border,” Texas Tribune, 22 January 2024, https://www.texastribune.org/2024/01/22/texas-border-supreme-court-immigration/.
14. U.S. Department of Homeland Security, No. 23-50869 at 2, 4.
15. Ibid.
16. Ibid.
17. Ibid.
18. For just one example, see Melhado, “U.S. Supreme Court Says Texas Can’t Block Federal Agents from the Border.”
19. “Republican Governors Band Together, Issue Joint Statement Supporting Texas’ Constitutional Right to Self-Defense,” Republican Governors Association, 25 January 2024, https://www.rga.org/republican-governors-ban-together-issue-joint-statement-supporting-texas-constitutional-right-self-defense/; Matthew Choi and Robert Downen, “’Hold the Line’: Republicans Rally to Abbott’s Defense in Border Standoff with Biden,” Texas Tribune, 25 January 2024, https://www.texastribune.org/2024/01/25/greg-abbott-border-republicans-joe-biden/; Lauren Sforza, “DeSantis Sends National Guard Troops to Texas Border,” The Hill, 1 February 2024, https://thehill.com/homenews/state-watch/4442713-desantis-national-guard-troops-texas-border/.
20. Rafael Bernal, “Abbot Doubles Down on Border ‘Invasion’ Declaration after Supreme Court Blow,” The Hill, 24 January 2024, https://thehill.com/latino/4427387-abbott-texas-border-invasion-supreme-court-immigration/.
21. Beto O’Rourke (@BetoORourke), “Abbott is using the Texas Guard to defy a Supreme Court ruling. When Gov. Faubus did this in 1957, Eisenhower federalized the Arkansas Guard to ensure compliance with the law. Biden must follow this example of bold, decisive leadership to end this crisis before it gets worse,” X, 24 January 2024, 4:22 p.m., https://twitter.com/BetoORourke/status/1750283034799026532.
22. Emergency Management Assistance Compact, Pub. L. No. 104-321, 110 Stat. 3877 (1996), https://www.congress.gov/104/plaws/publ321/PLAW-104publ321.pdf.
23. “Brown v. Board of Education (1954),” National Archives, accessed 6 November 2024, https://www.archives.gov/milestone-documents/brown-v-board-of-education.
24. John K. Mahon, History of the Militia and the National Guard (New York: Macmillan, 1983), 224.
25. Beto O’Rourke only mentioned the 1957 instance. For examples where journalists only discuss the 1957 instance, see Ewan Palmer, “What Happens If Joe Biden Tries to Take Over Texas National Guard?,” Newsweek, 26 February 2024, https://www.newsweek.com/what-happens-joe-biden-seizes-texas-national-guard-greg-abbott-1864285; see also Carson Frame, “Federalizing the Texas National Guard? Democrats Consider Ways to Wrest Shelby Park from Texas’ Control,” Texas Public Radio, 19 January 2024, https://www.tpr.org/military-veterans-issues/2024-01-19/federalizing-the-texas-national-guard-democrats-consider-ways-to-wrest-shelby-park-from-texas-control.
26. Paul J. Scheips, The Role of Federal Military Forces in Domestic Disorders, 1945–1992 (Washington, DC: U.S. Army Center of Military History, 2012), 33–34, https://www.history.army.mil/html/books/030/30-20/cmh_pub_30-20.pdf.
27. Use of Militia and Armed Forces to Enforce Federal Authority, 10 U.S.C. § 332 (2010), https://www.govinfo.gov/content/pkg/USCODE-2010-title10/html/USCODE-2010-title10-subtitleA-partI-chap15.htm.
28. Ibid., Interference with State and Federal Law, § 333.
29. These sections were renumbered in 2016. Sections 332, 333, and 334 are now sections 252, 253, and 254.
30. Scheips, Role of Federal Military Forces, 47.
31. “Executive Order 10730: Desegregation of Central High School (1957),” National Archives, accessed 6 November 2024, https://www.archives.gov/milestone-documents/executive-order-10730#transcript.
32. An Act to Amend the National Defense Act of June 3, 1916, as Amended, Pub. L. No. 73-61, 48 Stat. 153 (1933), https://www.govinfo.gov/content/pkg/STATUTE-48/pdf/STATUTE-48-Pg153.pdf.
33. Appointment Oath, 32 U.S.C. § 312 (2011), https://www.govinfo.gov/content/pkg/USCODE-2011-title32/html/USCODE-2011-title32.htm.
34. Scheips, Role of Federal Military Forces, 49.
35. “National Guard Chief Needs No Pilot,” Kansas City Star, 17 September 1963, 3.
36. Use of Militia and Armed Forces to Enforce Federal Authority, 10 U.S.C. § 252 (2016).
37. Exec. Order No. 11053, 27 Fed. Reg. 9693 (30 September 1962); Exec. Order No. 11111, 28 Fed. Reg. 5709 (11 June 1963); Exec. Order No. 11118, 28 Fed. Reg. 9863 (10 September 1963), https://www.federalregister.gov/presidential-documents/executive-orders/.
38. Alistair Cook, “Negro Students Get a Helping Hand,” The Guardian, 13 June 1963, 11.
39. Department of Homeland Security et al. v. Texas, No. 23A607 (22 January 2024), https://www.supremecourt.gov/orders/courtorders/012224zr_fd9g.pdf.
40. Joseph Nunn, “Biden Can, But Shouldn’t, Federalize the Texas National Guard,” Just Security, 7 February 2024, https://www.justsecurity.org/91862/biden-can-but-shouldnt-federalize-the-texas-national-guard/.
41. Encyclopedia of Arkansas, s.v. “Lost Year,” last modified 30 August 2023, https://encyclopediaofarkansas.net/entries/lost-year-737/.
42. The U.S. Supreme Court reaffirmed the state’s obligation to desegregate in accordance with Brown v. Board of Education in their 1958 decision Cooper v. Aaron, 358 U.S. 1 (1958), https://www.loc.gov/item/usrep358001/.
43. Sforza, “DeSantis Sends National Guard Troops to Texas Border.”
44. Joseph Nunn, quoted in Frame, “Federalizing the Texas National Guard?”

 

 

 

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