A migrant woman and her two children drowned while trying to cross the Rio Grande in Eagle Pass last week.
The Department of Homeland Security said Border Patrol agents could not conduct rescue operations because they were denied access to the river at Shelby Park. Days before, Gov. Greg Abbott ordered a takeover of that area using National Guard troops — purportedly to deter illegal crossings.
The U.S. Constitution gives the federal government the authority to regulate immigration and manage the border.
“It’s clear that Governor Abbott is trying to use them to interfere with the enforcement of US law. National Guard troops cannot be used in that way,” U.S. Rep. Joaquin Castro (D-TX) told TPR.
The Biden administration sent a cease and desist letter to Texas officials on Sunday, but they have refused to comply. Castro and fellow Democratic congressman Henry Cuellar have called on the Biden administration to restore Border Patrol agents’ access to the river.
“I think that, at this point, the president has no choice but to consider federalizing the Texas National Guard,” Castro said.
The National Guard is a unique entity in that it answers to both state and federal governments. Troops can be mobilized by a state governor or the president, depending on need. The National Guard personnel restricting access to Shelby Park are on state orders as part of Operation Lone Star, Abbott’s sweeping border security initiative.
In theory, the president or the defense secretary could divert those troops by tasking them with a federal mission.
“There are a variety of statutes that allow the president to federalize the National Guard in different circumstances. But the only one that would clearly apply in this case is the Insurrection Act,” said Joseph Nunn, counsel at the Brennan Center’s Liberty and National Security Program.
Nunn described the Insurrection Act as a “nuclear bomb hidden in the United States Code” and explained that using it would be politically costly.
“The Insurrection Act gives the president sole discretion to decide whether the criteria for invoking it are met,” he explained. “There are quite literally no safeguards to stop it from being abused.”
Historically, Nunn said, presidents have only invoked the act to federalize National Guard troops as a last resort. That was the case in 1957, when President Dwight D. Eisenhower mobilized the Arkansas National Guard to enforce a Supreme Court ruling on desegregation.
“Looking at how it's been used in the past and what it's intended for … At this stage, that [decision to federalize] would be premature,” he added.
The Biden administration has already filed two lawsuits over Abbott’s border policies — and Nunn said there is still room to litigate before resorting to that kind of action.
