What happens if Joe Biden tries to take over Texas National Guard?

The debate on whether President Joe Biden should seize control of the Texas National Guard in order to force it to comply with a recent Supreme Court ruling is continuing to rage between Democrats and Republicans.

Texas Representative Joaquin Castro and former congressman and 2020 presidential hopeful Beto O’Rourke, both Democrats, are among those who are urging Biden to federalize the state’s National Guard to allow Border Patrol agents to remove razor wire put up along the U.S.-Mexico border by Texas law enforcement in order to prevent illegal immigration.

In a 5-4 ruling on January 22, the Supreme Court sided with the Biden administration, which said that the wire erected in Eagle Pass was put up illegally and prevented Border Patrol from trying to detain people who were attempting to cross the border via the Rio Grande.

Despite the ruling, Texas Governor Greg Abbott argued that Biden is failing his duties as president by not controlling the record levels of illegal crossings at the southern border during his time in office. Abbott has also declared that Texas is currently under an “invasion” and invoked the state’s constitutional right to defend and protect itself.

“That authority is the supreme law of the land and supersedes any federal statutes to the contrary. The Texas National Guard, the Texas Department of Public Safety, and other Texas personnel are acting on that authority, as well as state law, to secure the Texas border,” Abbott said.

As a result, Abbott is allowing the Texas National Guard to continue to install the razor wire along the border. He is refusing to allow Border Patrol agents access to Shelby Park—a riverfront park in Eagle Pass that migrants are using to enter the U.S. illegally—in order to remove the wires.

Newsweek reached out to the White House and Abbott via email for comment.

Can Joe Biden Take Over The Texas National Guard?

Biden is within his power to federalize the Texas National Guard in accordance with Title 10 of the U.S. Code, which would mean the state’s troops would be under direct orders of the president.

In 1957, President Dwight D. Eisenhower placed the Arkansas National Guard under federal authority and ordered them to protect nine Black students who enrolled at Central High School in Little Rock. The move arrived after the state’s governor, Orval Faubus, previously called the troops to prevent the Black students’ entry into the all-white school, despite a Supreme Court ruling that declared segregation in public schools unconstitutional.

Currently, Texas National Guard troops are operating under Title 32, which means they fall under the command of the Texas governor as their commander-in-chief.

“Abbott is using the Texas Guard to defy a Supreme Court ruling. When Gov. Faubus did this in 1957, Eisenhower federalized the Arkansas Guard to ensure compliance with the law,” O’Rourke posted on X, formerly Twitter. “Biden must follow this example of bold, decisive leadership to end this crisis before it gets worse.”

However, questions have been raised as to whether Biden can federalize the Texas National Guard in these current circumstances, with some suggesting the president does not have the legal justification to do so.

“Title 10 can only supersede Title 32 in a national emergency. In this case, Biden would have to activate the Texas National Guard to guard the border. Otherwise it is an unlawful order,” retired Air Force General Robert Spalding posted on X.

What Happens if Joe Biden Takes Over The Texas National Guard?

Presumably, a move to federalize the Texas National Guard would mean the Border Patrol would quickly move in and remove the razor wire, which has been the focus of the arguments in the Lone Star state.

Others have suggested such a move could have broader implications for Biden, as well as setting up possible further legal challenges and issues.

“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, a constitutional law and national security law expert, told The Center Square.

Texas Attorney General Ken Paxton also suggested that the Democrats calling for Biden to federalize the National Guard “don’t understand the law” and the president must first declare a national emergency.

“That goes to the whole question, why is he declaring an emergency? Obviously, we have one, right? And now he’s admitting it,” Paxton told Newsmax. “I think that becomes a political issue for him, it becomes a real problem for him politically.”

What Can Abbott Do in Response?

Beyond continuing to defy the Biden Administration and ordering law enforcement to still erect razor wire, Abbott has also indicated that he is willing to appeal any decision from the president to the Supreme Court.

Professor Peter Shane, a law lecturer at New York University and constitutional law expert, dismissed Abbott’s suggestion that he can have supreme authority in Texas after declaring that the state is under “invasion” from people crossing the border illegally.

“This is nonsense. Governors have no power to declare anything under the U.S. Constitution, nor does the Constitution give states any legal power to countermand the exercise of federal authority,” Shane previously told Newsweek.