(The Center Square) – As the conflict between the federal government and Texas escalates over the state’s right to defend its border with Mexico, Gov. Greg Abbott is not backing down as a congressional Democrat called on President Joe Biden to federalize the Texas National Guard.
If the Texas National Guard were federalized solely to usurp Abbott’s constitutional authority to secure the Texas border, Congress should consider whether doing so constitutes a high crime and misdemeanor – an impeachable offense – under the U.S. Constitution, a constitutional law expert told The Center Square.
After Abbott invoked his constitutional authority to defend Texas’ border on Wednesday, saying, “The federal government has broken the compact between the United States and the States,” reports surfaced that Biden could federalize the Texas National Guard. This would result in pulling them from the Texas border and breaking the chain of command under Abbott.
Abbott called up several thousand guard members and positioned them at the Texas-Mexico border through his border security mission, Operation Lone Star. After the U.S. Supreme Court this week ruled Border Patrol agents could destroy Texas’ concertina wire barriers, Abbott instructed guardsmen to build more.
U.S. Rep. Joaquin Castro, a Democrat from San Antonio, said that if Abbott “defies” the Supreme Court’s ruling, Biden “needs to establish sole federal control of the Texas National Guard now.”
The court ruling only addressed Border Patrol agent activity in Eagle Pass, Texas. It did not direct the governor to stop constructing the barriers or to stop enforcing state law.
Texas National Guard troops operating under Title 32 fall under the command of the Texas governor as their commander in chief. If federalized under Title 10, the Guard falls under the command of the president.
“If the Texas National Guard are federalized under Title 10 for the sole purpose of pulling them off the Texas border and out of the chain of command of the Commander in Chief of the Texas military, after Gov. Abbott invoked his constitutional authority to defend the Texas border, the founders would have envisioned this as a crime and misdemeanor and impeachable offense,” Jonathan Hullihan told The Center Square. Hullihan is a constitutional law and national security law expert, a former active duty Navy JAG, and general counsel of Citizens Defending Freedom.
He was among the first to call for Texas to declare an invasion. So far, 51 counties have declared an invasion, nearly 100 counties have issued disaster declarations and invasion declarations, or both, citing the border crisis.
Hullihan also said that federalizing Texas National Guard troops to usurp Abbott’s authority is a different matter than other reasons used to impeach, or attempt to impeach, former presidents because it directly relates to constitutional authority.
“This is not a phone call to Ukraine,” Hullihan said, referring to the U.S. House’s now discredited impeachment of former President Donald Trump. “This is not like having an affair with a White House intern,” he said, referring to a key fact in the impeachment trial of former President Bill Clinton. “This is not like sending your guys to go search for intel in a campaign office,” referring to the Watergate scandal, he told The Center Square.
“Congress should consider if federalizing the Texas National Guard after their Texas commander in chief called them up under constitutional authority for the sole purpose of pulling them out of his chain of command constitutes a high crime and misdemeanor,” Hullihan told The Center Square. “Attempting to violate the authority of the U.S. Constitution could be viewed as an impeachable offense. The founders specifically wrote the U.S. Constitution with safeguards to protect state sovereignty should the federal government fail to protect them.”
Hullihan also reiterated what many Texans have argued: “Congress has failed to act on the border.” After Republican members of Congress held a news conference in Eagle Pass, border residents told The Center Square if Congress continues to use taxpayer dollars to fund policies that facilitate the border crisis, Congress is complicit in creating it and a national security threat.
“The question now is if Congress will defend the U.S. Constitution or not,” Hullihan said. “What’s happening in Texas is above politics and policy. This is about the founding principles of the U.S. Constitution and ensuring the checks and balances put in place will safeguard our constitutional republic and protect the lives, liberty and property of American citizens.
“Fundamentally, the government is charged with ensuring our individual liberty. We cannot allow transnational criminal organizations to operate unimpeded into our open border killing Americans. We have fought wars to defend our border, we must continue to fight today.”