The ongoing situation at the border in Eagle Pass between Gov. Greg Abbott and President Joe Biden has highlighted the strain between the state and federal government — raising the question of how far either can push back.
That conflict has put the National Guard in the middle, a position guard members have found themselves in repeatedly.
Brandon Rottinghaus, political science professor at the University of Houston, said it was an example of the ongoing conflict between state and federal governments dating back to the Civil War.
“Texas likes to flirt with a war with the federal government, but cooler heads have always prevailed,” Rottinghaus said. “Texas governors have long scored political points saber-rattling against the federal government, and oftentimes that's where it stops.”
The Texas border dispute came to a head following the U.S. Supreme Court’s decision allowing federal agents to cut razor wireat the border. Texas took over Shelby Park in Eagle Pass as part of Abbott’s Operation Lone Star border policy, installing the wire. But Texas has still not allowed border patrol agents access to Shelby Park.
Pushback from Abbott gained the support of several Republican-led states in the following days. In a statement, he claimed the federal government had “broken the compact” between the U.S. and the states.
It is not uncommon for the politics between state and federal governments to get aggressive, and Texas is no exception, Rottinghaus said.
Border security is a top issue for the governor’s base, but fighting the federal government in the long run is nearly impossible, Rottinghaus said. But it also puts Biden in a tough political position.
“On the other side, President Biden doesn’t want to nationalize the guard because it’s like admitting that Texas is right about the border problem,” he said.
Abbott has said the Texas National Guard, the Texas Department of Public Safety, and other personnel were acting on the state’s constitutional authority to defend itself.
But the Texas National Guard is not for Texas’ exclusive use.
Joseph Nunn, counsel at Brennan Center for Justice, said a state’s national guard is like a modern version of the state militias during the nation’s infancy. By the early 20th century, a series of enactments transformed the state militias into the National Guard.
A state’s national guard can be — and has been — federalized on a president’s orders. Federalization of a state’s national guard can be done using the Insurrection Act, which allows the president to deploy military forces inside the United States to suppress rebellion or to enforce federal law.
“It's not a question, really, of whether it would be lawful for Biden to federalize the Texas National Guard using the Insurrection Act,” he said. “It's a question of whether it would be appropriate, of whether we're there yet, and I don't think we are.”
President Dwight D. Eisenhower used the Insurrection Act in 1957 when then-Arkansas Gov. Orval Faubus used the state national guard to block Black students from desegregating a high school in Little Rock.
In that case, the governor defied a direct federal ruling — Brown v. The Board of Education — that made segregated schools illegal, and the court had exhausted all normal means to see the order through.
“When the federal government and a state disagree, we solve those disputes in court,” Nunn said. “We don't do it through, sort of, strongman flexing and forcing will on each other. The Insurrection Act is a last resort, or at least it ought to be a last resort.”
As of Friday, there were no federal court orders for Texas to allow border patrol agents into Shelby Park — meaning Abbott was not using the Texas National Guard to defy the Supreme Court.
The Insurrection Act was first enacted in 1792 and has not been amended in about 150 years, and Nunn likened it to a “nuclear bomb” hidden in the United States Code.
“There are no meaningful criteria for assessing whether a given situation warrants invoking the act,” he said. “There's no mechanism that allows Congress or the courts to check a misuse of the act.”
Since it was enacted, presidents have used the Insurrection Act with restraint despite limited restrictions. However, former President Donald Trump has suggested sweeping policy goals including expanded military use while on the campaign trail. In November, he told an Iowa audience that he considered deploying the military to inner cities like New York City and Chicago to fight crime.
“When I am President, I won’t send Texas a restraining order, I will send them reinforcements,” Trump said at a Nevada rally in late January.
If Biden used the Insurrection Act over the border, it could also hurt him politically — especially in an election year, Rottinghaus said.
“When presidents use unilateral power, they have to be convinced that this is the last resort,” he said.
Although public reaction to the president’s use of unilateral power is partisan, in general the public does not like it and prefers a legislative approach, he said.
While it would be lawful for Biden to use the Insurrection Act, Nunn said there’s still room for the federal government and state to solve their differences in court.
The Department of Homeland Security issued a letter to Texas Attorney Gen. Ken Paxton demanding the state allow U.S. Border Patrol agents access to Shelby Park by Jan. 26. A day before the deadline, Paxton said he stood “shoulder-to-shoulder" with Abbott and would bring “any legal means necessary to defend Texas.”
In an interview with Conservative political commentator Benny Johnson, Paxton said any ruling the federal government made in relation to how the state defended its border could be reverse-engineered to benefit Republicans under another Trump administration.
“If the Supreme Court’s rationale is correct any president can do anything about immigration that he wants and it’s fine,” Paxton said. “If that’s true than presumably Trump can do whatever he wants to do whether the states like it or not.”
The border situation between Abbott and Biden could likely end in a stalemate, meaning a return to the status quo, Rottinghaus said.
Otherwise, federalization could mean escalating tensions between the state and federal government.
“It could create a ripple effect that leads to an out-of-control situation for the Biden White House,” Rottinghaus said.
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