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 鈥� 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.
鈥淭exas likes to flirt with a war with the federal government, but cooler heads have always prevailed,鈥� Rottinghaus said. 鈥淭exas governors have long scored political points saber-rattling against the federal government, and oftentimes that's where it stops.鈥�
The Texas border dispute came to a head following the U.S. Supreme Court鈥檚 decision at the border. Texas took over Shelby Park in Eagle Pass as part of Abbott鈥檚 Operation Lone Star border policy, installing the wire. But Texas has still not allowed border patrol agents access to Shelby Park.
Pushback from Abbott in the following days. In a statement, he claimed the federal government had 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鈥檚 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.
鈥淥n the other side, President Biden doesn鈥檛 want to nationalize the guard because it鈥檚 like admitting that Texas is right about the border problem,鈥� he said.
Abbott has said the Texas National Guard, the Texas Department of Public Safety, and other personnel were acting on the state鈥檚 constitutional authority to defend itself.
But .
Joseph Nunn, counsel at Brennan Center for Justice, said a state鈥檚 national guard is like a modern version of the state militias during the nation鈥檚 infancy. By the early 20th century, a series of enactments transformed the state militias into the National Guard.
A state鈥檚 national guard can be 鈥� and has been 鈥� federalized on a president鈥檚 orders. Federalization of a state鈥檚 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.
鈥淚t's not a question, really, of whether it would be lawful for Biden to federalize the Texas National Guard using the Insurrection Act,鈥� he said. 鈥淚t's a question of whether it would be appropriate, of whether we're there yet, and I don't think we are.鈥�
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 .
In that case, the governor defied a direct federal ruling 鈥� Brown v. The Board of Education 鈥� that made segregated schools illegal, and the court had exhausted all normal means to see the order through.
鈥淲hen the federal government and a state disagree, we solve those disputes in court,鈥� Nunn said. 鈥淲e 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.鈥�
As of Friday, there were no federal court orders for Texas to allow border patrol agents into Shelby Park 鈥� meaning Abbott was not using the Texas National Guard to defy the Supreme Court.
The was first enacted in 1792 and has not been amended in about 150 years, and Nunn likened it to a 鈥渘uclear bomb鈥� hidden in the United States Code.
鈥淭here are no meaningful criteria for assessing whether a given situation warrants invoking the act,鈥� he said. 鈥淭here's no mechanism that allows Congress or the courts to check a misuse of the act.鈥�
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.
鈥淲hen I am President, I won鈥檛 send Texas a restraining order, I will send them reinforcements,鈥� in late January.
If Biden used the Insurrection Act over the border, it could also hurt him politically 鈥� especially in an election year, Rottinghaus said.
鈥淲hen presidents use unilateral power, they have to be convinced that this is the last resort,鈥� he said.
Although public reaction to the president鈥檚 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鈥檚 still room for the federal government and state to solve their differences in court.
The 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 with Abbott and would bring 鈥渁ny legal means necessary to defend Texas.鈥�
In an , 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.
鈥淚f the Supreme Court鈥檚 rationale is correct any president can do anything about immigration that he wants and it鈥檚 fine,鈥� Paxton said. 鈥淚f that鈥檚 true than presumably Trump can do whatever he wants to do whether the states like it or not.鈥�
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.
鈥淚t could create a ripple effect that leads to an out-of-control situation for the Biden White House,鈥� Rottinghaus said.
