Now that Governor Rick Perry has deployed the Texas National Guard to deal with the deluge of illegal aliens crossing the Rio Grande, two questions arise. First, what will President Barack Obama do about it? And second, will Obama’s reaction be legal?
Article I, Section 8, Clause 12 of the Constitution empowers Congress to create the Armed Forces. Then Clause 15 of Section 8 additionally gives Congress power “to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”
So in addition to creating a military, the Constitution allows Congress to pass a law that can transfer state troops to federal service. Once in federal service, they are completely under the control of the president. Article II, Section 2, Clause 1 of the Constitution provides, “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”
Finally, Article I, Section 10, Clause 3 states in part, “No State shall, without the Consent of Congress … engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” That is the only mention in the Constitution of states wielding military power aside from federal authorization.
Congress has in turn enacted two statutes that bear directly on the Texas situation. The “organized militia” is the National Guard, as defined by 10 U.S.C. § 311. All such troops can be called into federal service, meaning they would transfer from Perry’s command to Obama’s, who could order them to stand down.
But then there is a little-known provision of federal law. It’s 32 U.S.C. § 109(c), providing:
In addition to its National Guard, if any, a State … may, as provided by its laws, organize and maintain defense forces. A defense force established under this section may be used within its jurisdiction concerned, as its chief executive … considers necessary, but it may not be called, ordered, or drafted into the armed forces [of the United States].
So the Texas National Guard is under the command of Perry, who as the governor of Texas is also commander in chief of its National Guard. He cannot order it to guard the national border as such. However, Perry can order it to safeguard the lives, safety, property, and general welfare of the citizens of the Lone Star State anywhere within his state, including right along the part of the Texas state line which just so also happens to be America’s border with Mexico.
There are a host of legal issues here, though none of them will arise unless Obama attempts to stop Perry and the issue goes to court. First–since the U.S. House would never pass legislation to federalize any Texas National Guardsmen in this situation–the limits of presidential authority to federalize National Guard troops without congressional authorization.
President Dwight Eisenhower federalized troops in Arkansas over school segregation, and President John F. Kennedy did so in Alabama. But Obama cannot assert the same legal justifications that those presidents could, and national polls suggest Obama would take a big hit trying to do so to stop a governor from doing what most Americans support.
Second, if the courts were to hold Obama has the power to unilaterally federalize the Texan guardsmen, the next question would be whether Congress had the authority to pass a statute allowing state defense forces can never be federalized under the president. If so, can Perry cite these troops as such a defense force?
But none of those are likely to arise so long as Perry orders his National Guard to play a supporting role to state personnel performing a state function. And Perry is proving to be as skillful in navigating this system as he is bold for daring to do so in defiance to an increasingly impotent president.
So long as Perry continues to execute what appears to be a well-planned operation, there’s likely to be nothing Obama can do to stop him–legally or politically.
Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.