On January 24th 2024, Texas Governor Greg Abbott issued a statement, concerning the right of the State of Texas to defend itself from invasion, because – quoting from the statement – the Federal Government as a body and specifically, the administration of President Joe Biden, have broken the Compact between the Several States and the Federal Government (the foundational concept that underpins the notion of the “United States of America”) by not simply pointedly and openly declining to defend the nation from a literal “invasion” at the southern border, but in actively taking measures to prevent the State of Texas from defending itself.
Abbott specifically cited the Biden administration failing to fulfill its duties under Article IV § 4 of the Constitution, which has now required Abbott, as Governor, to invoke Article 1 § 10 Clause 3 of the Constitution requiring him to take measures to defend the state.
This statement was issued on the heels of a frankly stunning decision by the United States Supreme Court on January 22nd, which allowed the US Border Patrol to remove razor wire barricades emplaced by Texas National Guard troops assigned to defend Texas’ border with Mexico along the Rio Grande River. In effect, the Supreme Court sided with the Biden administration in suborning an invasion of the United States.
However, given the reactions of “sanctuary cities” – most of them longtime strongholds of the Democrat Party – to having waves of “migrants” dumped (waves that are not even comparable to the numbers being dumped on Texas) on their doorsteps, not just by Republican-led states such as Texas and Florida, but by the Federal Government itself, it is clear that the staggering numbers are having an immediate, clear and disproportionate impact on the nation (leaving aside said migrants frequently complaining bitterly about the aid and shelter they are given, including appeals to citizens to house illegal aliens in churches and private homes).
In response to Governor Abbott’s January 24th statement, many politicians have begun to hysterically demand that President Biden federalize the Texas National Guard to halt the Texas program to stem the flow of illegal migrants, and to restrict them to using the legal crossing points, and to follow the established legal processes.
This situation (which has been building for well over a decade as of this writing), and the breathless demands to invoke the Insurrection Act to stop Texas’ actions, has brought the nation perilously close to an actual “civil war”, for the first time since 1860. This is because, as of this writing, some twenty-five state Governors have definitively stated their support of Governor Abbott and the state of Texas.
Actually federalizing a state’s National Guard against the wishes of their state’s governor has been done before, famously in 1957 in Arkansas in regards to the “Little Rock Nine”. A popular misconception is that a state’s National Guard cannot be federalized without that state’s governor consenting to the mobilization. As demonstrated in Arkansas, this is patently untrue.
The National Guard was created by the Militia Act of 1903, known popularly as the “Dick Act” after its sponsor, Ohio Congressman Charles Dick (R), in response to the severe manpower shortage in the US Army in the aftermath of the Spanish-American War (1898) and the subsequent campaigns against Filipino guerrillas in the Philippines Insurrection (1899-1902).
This latter campaign was hampered by American volunteers – who had been enlisted for a period of two years – insisting on being sent home after the conclusion of the war against Spain. As those who had volunteered specifically for the war against Spain were technically still a part of the Militia of the United States, they could not be required to serve longer than the conclusion of the war unless they specifically volunteered to do so.
This manpower issue came from Article 1, § 8, Clause 15 of the “Militia Clauses” (which includes Clause 16 of the same Article and Section) of the Constitution, which strictly limits the call-up and use of the Militia to executing “…the Laws of the Union, suppress Insurrections and repel Invasions…” As a result, the United States quickly found itself significantly hampered in the Philippines by not having enough troops.
The “Dick Act” was written specifically to bypass the restrictions of the “Militia Clauses”, in order to create a new military entity in the form of the National Guard (and later, the Air National Guard). In effect, the “Dick Act” created a type of reserve formation for the US Army (before the creation of the actual “Army Reserve”), which (ultimately) would be equipped and trained by the US Army, but which be paid for by the states, who would also be allowed to use the military formations within the state, at the discretion of its governor. However, if the Federal government decided that they needed to mobilize the National Guard, they could do so at any time…whether a governor agrees with the Federal government or not, as was demonstrated in 1957, in Arkansas.
In the context of the hysterical demands of partisan political hacks, this would mean that President Biden would have to declare the State of Texas to be in rebellion against the United States – something that has only happened once in United States history – in order to force the Texas National Guard to disregard the orders of its state Commander in Chief in the face of an active invasion of their state.
Stop, and consider that implication.
If President Biden were to take such an ill-advised action, that would place the Texas National Guard in the position of obeying either the Federal Government – and allowing a massive invasion of their home state by massive numbers of “military-age males” who certainly did not walk north from homes in Mexico, or Central or South America, because “economic asylum seekers” do not buy airplane tickets from Africa to Mexico, in order to walk north…
…Conversely, the Texas National Guard could refuse orders to federalize. This would constitute “Mutiny”, under Article 94 of the Uniform Code of Military Justice (UCMJ, the legal code of the US armed forces), at the very least. This would place the Federal government in the position of having to arrest up to 19,000 people en masse.
In like manner, there would then be the question of the reactions of the various states and governors who have expressed their solidarity with Governor Abbott’s actions…
This perilous situation is the ultimate outcome of decades of neglect, political pandering and the abject failure of successive Federal governments to execute the most basic of their duties, duties that the Several States voluntarily allowed the Federal Government to maintain authority for, as a condition of their joining the Federal Union in 1789. Leaving aside the obtuse legalities of this situation, the reality is that the American Left – led primarily by the Democrat Party – has driven the nation to a potential breakpoint, where the States may well declare the sitting Federal Government to no longer be a legitimate body. Such an action could go in several directions, none of them good, and all of them highly dangerous.
And while pundits and armchair-warrior-gamers may believe the nearly incoherent ramblings of President Biden, the reality is that the United States military and law enforcement establishments are not able to enforce any nationwide martial law order; in fact, it is questionable if they could enforce such an order over any large metropolitan area, given what happened the last time Federal troops were deployed under “Operation Garden Plot” was engaged.
…In the end, this writer has no solution to this problem, other than telling the Federal government to do its job in securing the borders of the United States, which it has consistently failed to do for over forty years.
The alternatives are not desired by any sane person.