Governor Rick Perry is asking President Barack Obama to foot the bill for Texas National Guard operations on the U.S.-Mexico border. But Perry will go it alone if Obama says no, funding the entire operation out of Texas coffers.
Perry has deployed 1,000 members of the Texas National Guard to the southern border in Operation Strong Safety. They will primarily support police officers from the Texas Department of Public Safety and other state personnel as those officers try to maintain public safety and protect public health. The guardsmen will also have authority to apprehend people under certain circumstances.
The National Guard can be used by a chief executive under federal statutes in three ways. Title 10 of the United States Code governs the U.S. military. Title 32 governs the National Guard. If a president federalizes a National Guard unit, that unit transfers to Title 10 and comes under presidential control as part of the regular military. The National Guard usually acts under Title 32 as a pure state body, under the control of its state’s governor as its commander in chief.
Then there is a hybrid model. A president and a governor can agree to have National Guard units work in tandem with federal agents. In this sort of operation, the National Guard units stay in a Title 32 capacity as state troops and thus continue to answer to the governor as their commander in chief, but the federal government funds their operations.
The Posse Comitatus Act of 1878 forbids U.S. troops from performing domestic law enforcement duties, forbidding martial law in this country. However, it only applies to troops in the federal chain of command under the president, which would include the National Guard when those troops are acting in a Title 10 role under exclusive presidential control. It does not apply to National Guard troops in their usual role under a governor, regardless of whether the federal government is paying their bills in one of these hybrid operations.
Breitbart News has previously reported on the relevant provisions of the U.S. Constitution that set forth the lines of authority between the president and state governors regarding the National Guard.
Contrary to some media accounts, the reports of Obama sending federal agents to Texas do not provide Obama a way to stop Perry’s troop deployments. Those agents were instead sent pursuant to Perry’s request that Obama approve this operation for federal funding. Personnel from the Defense Department and Department of Homeland Security will make a recommendation to Obama as to whether Texas should be reimbursed for Operation Strong Safety, which is expected to cost $12 million per month.
If Obama refuses to fund the operation–which seems likely, given the White House’s de facto amnesty program of not enforcing immigration laws along the Mexican border–then Perry vows to go it alone. “If the federal government won’t act, Texas must and will,” Perry declared in a July 21 press conference announcing Operation Strong Safety.
Since the Lone Star State’s booming economy is capable of financing Operation Strong Safety without federal funds, there seems to be nothing Obama can do to stop Perry. While Congress can federalize guard troops at any time through legislation, no such measure could pass the U.S. House (especially with its enormous Texas congressional delegation). Under current law, Obama could only federalize troops by mobilizing them for a foreign military operation or by declaring a national emergency that requires those troops, neither of which are realistic here.
Immigration is purely a federal matter under current law interpretation of Article I of the Constitution, so Perry cannot supplant Obama on the border. But under the Tenth Amendment, states have “police power” to make laws and take executive actions regarding (1) public health, (2) public safety, (3) personal morality, and (4) general social welfare.
Operation Strong Safety appears carefully designed to secure public health and public safety without any regard to whether the people interacting with the National Guard are foreigners instead of citizens, and also without regard to whether any foreigners are here illegally. So Perry is on rock-solid legal footing that would give him the upper hand in any legal battle, as Obama cannot point to any way in which Perry is trenching upon the federal government’s prerogatives.
This unfolding drama also has implications for the presidential election in two years. As Breitbart News has previously reported in analysis, Perry’s course of action is in stark contrast to Obama’s style, as polls show the public strongly disapproves of Obama’s handling of the immigration crisis.
Republicans nationwide are starting to talk up Perry as a major presidential contender in 2016.
Ken Klukowski is senior legal analyst for Breitbart News. Follow him on Twitter @kenklukowski.