In a major address, POTUS must also expose the 'moral crisis' brought on by GOP hypocrisy, cruelty and dehumanizing anti-immigrant propaganda...
By Ernest A. Canning on 2/9/2024, 12:44pm PT  

Given the rationale behind the recent SCOTUS decision in Department of Homeland Security v. Texas, Governor Greg Abbott's election year efforts to block the U.S. Border Patrol's access to the Rio Grande in Texas amount to defiance of a federal court order.

President Joe Biden can and should assure State compliance with federal law by taking a page from previous Presidents by exercising his power to federalize both the TX National Guard and any members of the FL National Guard who are now impeding Border Patrol access along the pertinent stretch of the U.S. border with Mexico.

The Court's decision to "vacate" a 5th Circuit Court of Appeals injunction, pending appeal, did a great deal more than simply affirm the right of federal Border Patrol agents to remove razor wire erected by the Texas National Guard along 29-miles of the Rio Grande.

By granting U.S. Solicitor General Elizabeth Prelogar's emergency Application in the case, SCOTUS affirmed the federal government's contention that, under the Supremacy Clause of the U.S. Constitution, "state law cannot be applied to restrain...federal agents from carrying out their federally authorized activities".

As Prelogar argued to the High Court...

The Supremacy Clause makes federal law "the supreme law of the Land" [Citation], and it has been firmly established over two centuries that a State has no power "to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by Congress to carry out the powers vested in the national government". [Citations].

"Federal law," she added, "unambiguously grants Border Patrol agents the authority, without a warrant, to access private land within 25 miles of the international border...By preventing Border Patrol agents from reaching noncitizens who have already entered the United States, Texas's barriers in Eagle Pass impede agents' ability to apprehend and inspect migrants under federal law….The wire can also obstruct Border Patrol from providing emergency assistance to migrants in the river or on the riverbank."

In a Supplemental Application, Prelogar observed that, while the case was pending before SCOTUS, the "Texas National Guard began erecting new concertina wire barriers...Texas also erected new fencing further inland that further restricts Border Patrol in its ability to reach the river...Because Border Patrol can no longer patrol or view this stretch of the border, Texas has effectively prevented Border Patrol from monitoring the border to determine whether a migrant requires emergency aid."

Indeed, while waiting for a ruling from the Court, a 33-year old mother and her two young children (aged 8 and 10), drowned while attempting to cross the Rio Grande, after federal agents were blocked by members of the Texas Military Department and Texas National Guard from accessing the river at a city park in Eagle Pass in response to a distress call from Mexican officials.

Despite SCOTUS affirmation of the well-established principle of federal supremacy, Texas' obstruction of the Border Patrol's ability to carry out its functions at the border continues.

According to the Texas Tribune, under the direction of Gov. Abbott, "the Texas National Guard and state troopers are still rolling out concertina wire and preventing Border Patrol agents from accessing most of Shelby Park, a 47-acre Eagle Pass park that sits on the bank of the Rio Grande where thousands of migrants have crossed." Making matters worse, Florida Governor Ron DeSantis announced that he would send up to 1,000 members of the Florida National Guard to aide in the obstruction of the U.S. government's enforcement of federal border laws.

Federalizing the Guard

Like JFK before him, President Biden can and should, as urged by Rep. Joaquin Castro (D-TX), respond to the Republican TX Governor's defiance of a U.S. Supreme Court order by federalizing the state National Guard in Texas, which has been ordered by Abbott to assist in what amounts to illegal obstruction of federal access to the border.

By issuing an Executive Order, Biden, as Commander in Chief, can place himself at the top of the TX National Guard's chain of command. Any member of either the TX or FL National Guard who refused to carry out a President's lawful order would be subject to a court martial pursuant to 10 U.S.C. §892. If convicted, a defiant member of the Guard would be subject to "a dishonorable discharge, forfeiture of all pay and allowances, and confinement for two years."

In 1963, Alabama's Gov. George Wallace defied a U.S. District Court order by attempting to block integration of the University of Alabama. President Kennedy responded by "federalizing" the Alabama National Guard. By way of Executive Order 11111, JFK, citing multiple federal statutes, directed "the Secretary of Defense to call into active military services of the United States" units of the AL National Guard in order "to remove obstructions of justice...[and] enforce the laws of the United States."

Today, nearly 61-years after JFK issued that Executive Order, the federal statutes relied upon by the 35th President are still applicable.

The fact that Donald Trump and many Republican state Governors support Abbott's illegal defiance is of no moment. Biden, not Trump, is currently this nation's Commander in Chief.

A President of the United States has a Constitutional duty "to take Care that the laws be faithfully executed". Biden not only has the legal right but also a duty to federalize the TX and FL National Guard in order assure compliance with federal laws that provided the basis for the order handed down in mid-January by the U.S. Supreme Court.

Seize the narrative

It is not enough for Biden to federalize the TX National Guard. He must deliver a major, televised address from the Oval Office --- an address that not only explains the legal basis for federalization, but also exposes the sheer hypocrisy reflected by the fact that House Republicans refused to consider immigration reform and toughening up federal patrol of the border for purely partisan reasons.

JFK's response to Gov. Wallace's stunt --- standing in the schoolhouse door to block integration --- was not limited to the issuance of the E.O. to federalize the Alabama National Guard. Our 35th President seized upon the moment to address the nation about the "moral crisis" brought on by the evil of Jim Crow segregation.

Today, our nation faces a "moral crisis" brought on by dangerous, dehumanizing rhetoric espoused by a Hitler-admiring demagogue. Our disgraced 45th President has referred to impoverished migrants, like the mother and two young children who drowned, courtesy of Abbott's cruel razor-wire stunt, as "vermin" who are "poisoning our blood." Like Trump, Abbott described their desperate flight to freedom and security as an "invasion".

As former Labor Secretary Robert Reich astutely observed:

[I]mmigration is a problem more useful to the GOP than the solution. They don't actually want to address problems at the border. They want to sow chaos and dysfunction. Why? Because Donald Trump is telling them to. It's his main campaign strategy.

Reich's observation exposes the lie in Abbott's recent claim, on the heels of his defiance of SCOTUS, that a Biden decision to federalize the National Guard would be a "major blunder".

Relentless dehumanizing propaganda may have made what Abbott describes as the need for a "secure border" the number one issue in the minds of many Americans, but President Biden can point out that, as a result of good faith negotiations with ultra-conservative Sen. James Lankford (R-OK), he and Congressional Democrats had agreed tough new restrictions for the border in the Senate that even the Rupert Murdoch-owned Wall Street Journal applauded because it was "almost entirely a border security bill."

Biden should repeat his observation that Congressional Republicans killed that landmark bill at the behest of Donald Trump because the former President felt it would harm his electoral chances. Biden can also quote what Lankford said this week during a Senate floor speech. The Oklahoma Republican's good faith effort to secure a bi-partisan border security bill, he noted, was rewarded with a threat from a "popular" right-wing media commentator who threatened: "If you do anything to move the bill forward, I will do everything I can to destroy you."

Better angels

In announcing his decision to federalize the pertinent elements of the National Guard, Biden should also call upon our nation's better angels. Empathy and decency must replace the cruelty embodied in the razor wire, immigrant internment camps and the forced separation of some 5,000 immigrant children from their parents under the Trump Administration's so-called zero tolerance policy --- a policy that was condemned by the American Academy of Pediatrics as "government sanctioned child abuse."

Politically, as well as legally and morally, federalization of the TX National Guard is the right thing to do. There's no better way for Biden to make the case for re-election than by an action that reveals he has the courage of his convictions.

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Ernest A. Canning is a retired attorney, author, and Vietnam Veteran (4th Infantry, Central Highlands 1968). He previously served as a Senior Advisor to Veterans For Bernie. Canning has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing

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