Texas National Guard tests state authority on US southern border
| Eagle Pass, Texas
Shelby Park was once a popular spot for locals to play soccer or walk their dogs along the Rio Grande. Today National Guard troops from Texas patrol the park that 鈥� now rimmed with spiraled wire 鈥� is seen as a front line in a national debate over U.S. border security.
The municipal park in Eagle Pass, Texas, has been transformed in recent months in an escalation of Gov. Greg Abbott鈥檚 Operation Lone Star, a border security effort now 3 years old. The state鈥檚 use of National Guard and other state law enforcement has ratcheted up tensions with the federal government.听
The state seized the park from the city unexpectedly in January, and the Department of Homeland Security accused Texas of U.S. Border Patrol agents from accessing it. Governor Abbott visited in February alongside , many of whom are sending members of their National Guard听to support Texas鈥� border initiative. Former President Donald Trump also praised the state鈥檚 when he visited Shelby Park in February.听
Why We Wrote This
A story focused onIn response to an increase in illegal border crossings, Texas is trying a new, confrontational approach to using its National Guard. We look at how National Guard use has evolved.
National Guard deployment to the border isn鈥檛 new. For decades, governors and presidents of both parties have called up these troops to support local, state, and federal agencies. What鈥檚 new, say legal experts, is a state鈥檚 use of the National Guard as an overt political challenge to federal immigration authority. Dangerous, unlawful border crossings, meanwhile, continue.
鈥淭he use of the Guard for things that are customarily federal duties, coupled with the political environment we鈥檙e in, coupled with the renewed assertion of states鈥� rights 鈥� to me, it鈥檚 more than somewhat problematic,鈥� says Joshua Kastenberg, a former Air Force lawyer and judge, now professor at the University of New Mexico School of Law.听
From militias to National Guard听
The National Guard, a state-based, reserve U.S. military force,听grew out of militias that predated the nation. Congress introduced standardized training and federal funding in 1903, helping transform the National Guard into a modern force. National Guard troops are now deployed regularly across the United States, including for natural disaster response, COVID-19 testing, and recently the patrolling of the . Massachusetts up to 250 National Guard troops last summer to help migrants access food and medical care at shelters.听
Governors, the president, and Congress can all activate the National Guard. The federal government is prohibited from using the National Guard as a civilian police force (unless authorized by the invocation of a law like the Insurrection Act). States, however, generally have more leeway.听
Within a state role, the National Guard has 鈥渁lways been able to support, or even function, in a law enforcement capacity,鈥� says Joseph Miller, senior historian at the National Guard Bureau.听
After Border Patrol tracked a record-high number of migrant encounters along the southern border in December, Texas installed itself in Shelby Park the following month. The state with a Department of Homeland Security 鈥渃ease and desist鈥� letter demanding full access, which alleged that the presence of state troops in Shelby Park obstructs federal Border Patrol operations.听
Texas鈥� actions 鈥渋mproperly seek to regulate the federal government,鈥� persisting 鈥渆ven in instances of imminent danger to life and safety,鈥� Jonathan Meyer, general counsel for the U.S. government, wrote in the letter.
Also in January, the Supreme Court sided with the Biden administration in a 5-4 vote, allowing federal agents to cut through state-installed wire in order to perform their duties.
The ruling also left key concerns unanswered around the broader state-federal conflict. The court 鈥渃ould have answered the questions鈥� of whether Texas鈥� use of its National Guard is unconstitutional, 鈥渂ut courts don鈥檛 do those things unless they have to, usually,鈥� says William Banks, professor emeritus at the Syracuse University College of Law.听
鈥淣o state can use the National Guard in a way that offends the United States Constitution, or the supremacy of federal law,鈥� says Professor Banks. 鈥淲hat鈥檚 going on now in Texas, viewed a certain way, is Abbott is interfering in a federal power over immigration.鈥�
Border authority听
Texas officials say they鈥檝e taken these actions out of necessity, due to the federal government鈥檚 neglect of its border security responsibility. Migrants have crossed illegally in record numbers during the Biden administration, with an 听annual Border Patrol encounters along the entire southern border since 2021,听the highest levels on record.
鈥淯ntil President Biden steps up and does his job as Commander-in-Chief to secure the border, Texas will hold the line and use every tool and strategy to keep our country safe,鈥� Governor Abbott said in a statement last month.
The Texas governor鈥檚 office听听the state鈥檚 efforts are paying off, citing 鈥渙ver 503,800 illegal immigrant apprehensions and more than 40,400 criminal arrests.鈥� cast Operation Lone Star as ineffective, subject to civil and human rights abuse, and expensive. The first two years of the operation cost around $4 billion, according to news reports. Further appropriations passed by the state legislature could push the state鈥檚 border spending to听through 2025.听
Border Patrol encounters听have dropped along the Texas-Mexico border over the last five months compared with the same period last fiscal year,听although encounters are rising elsewhere in Tucson, Arizona, and San Diego, California, sectors.
Two-thirds of Texas voters support the deployment of more state police and military resources to the border, according to a . The Texas Military Department did not respond to a request for comment, and U.S. Customs and Border Protection declined to comment on the record.听
Along the Texas-Mexico border, the use of state troops expands beyond Eagle Pass.听
Further west, on the border in El Paso, a viral video released by the in March shows a crowd of migrants, several with their hands raised,听pushing past Texas National Guard members. (Under U.S. law, individuals may apply for protections like asylum, even if they entered illegally, as a defense against removal.)
To Adolpho Telles, the El Paso County Republican Party chairman,听the incident represents an 鈥渁ttack on this country.鈥�
鈥淭he Texas National Guard should not have to be doing what they鈥檙e doing, but because the president is not living up to his pledge to support the Constitution of the United States, the state of Texas needs to protect its citizens,鈥� says Mr. Telles.
Governor Abbott has also announced to build a military-style base to house National Guard troops on 80 acres of land in the Eagle Pass area. The site will be able to hold up to 2,300 service members previously located in hotels around the region. Meanwhile, some locals say the state鈥檚 show of force is excessive. They also want their park back.
With Shelby Park generally closed to the public, the Eagle Pass City Council their upcoming听solar eclipse festival to another venue, according to the Eagle Pass Business Journal. The city鈥檚 mayor told local media that the park was taken over by the state without notice or consent.听
The saga is emblematic of a broader trend around state challenges to federal authority, says Amerika Garcia Grewal, a local who helps organize vigils at the park that honor migrant lives lost in the Rio Grande.
鈥淚t has the potential to tear our union apart,鈥� says Ms. Garcia Grewal. 鈥淗ere in Eagle Pass, Governor Abbott has found a pressure point, and he鈥檚 hammering it on as hard as he can. And he鈥檚 sending cracks out throughout the entire United States.鈥�
The Department of Justice has so far resisted suing Texas over its takeover of Shelby Park and restrictions on Border Patrol agents. The Biden administration has considered litigation, but doesn鈥檛 want to further escalate conflict, to NBC News.听
Meanwhile, the Biden administration has sued Texas over other efforts to expand state immigration authority. Litigation is ongoing over a buoy barrier installed by Texas in the Rio Grande, and a new law that would permit state officials to arrest and deport migrants who crossed the border illegally.听
鈥淟et鈥檚 ... put the guardsmen in there鈥�
Texas isn鈥檛 alone in calling up its National Guard to manage its border. Arizona Gov. Katie Hobbs in December the state National Guard to assist border counties with fentanyl and human trafficking enforcement. 鈥淎rizona has borne the burden of federal inaction in managing the State鈥檚 southern border,鈥� the Democratic governor wrote in an executive order.听
鈥淲e鈥檙e ready to support as long as needed,鈥� says Capt. Erin Hannigan, spokesperson for the Arizona National Guard. The length of time depends on the 鈥済overnor鈥檚 office and the counties that are requesting this support.鈥澨�
For this fiscal year, the Department of Defense has also authorized the use of up to 2,500 National Guard troops to support federal immigration authorities along all four southern border states, mobilized from around half of all U.S. states and Guam. These border missions have been exercised by both red and blue commanders in chief.
鈥淚t鈥檚 nothing new,鈥� says Victor Manjarrez Jr., director of the Center for Law and Human Behavior at the University of Texas at El Paso and a retired Border Patrol official.听
For instance, starting in 2006, Dr. Manjarrez recalls coordinating up to 6,000 National Guard troops at the southern border under Operation Jump Start. Launched by Republican President George W. Bush, the aimed to offset a deficit of Border Patrol agents, he says, by placing the National Guard in roles that didn鈥檛 involve patrolling the border.
鈥淲e took a good count of, 鈥榟ey, what [Border Patrol] agents are doing nonagent things鈥欌�� like vehicle maintenance, for example, he says. 鈥淟et鈥檚 get the agents out in the field; put the guardsmen in there.鈥�
Local first responders听
Back in Eagle Pass, state and federal personnel are not the only ones patrolling the Rio Grande. Local first responders also run their own missions. Eagle Pass emergency management services can still access the river, yet state-installed barriers along the banks mean that missions, including medical aid for those injured or body recovery for those who died, take longer, says Rodolfo Cardona, assistant fire chief.
The city鈥檚 emergency management coordinator stresses that, politics aside, the humanitarian crisis at the border continues. So does the mental health toll that his workers 鈥� and law enforcement 鈥撎齢ave increasingly borne while responding to illegal crossings. The crisis includes migrant children found injured, beaten, and raped.
鈥淚 don鈥檛 think it was ever a priority on our federal government鈥檚 mind 鈥� of the aftermath, and the toll it takes on not only us, but Border Patrol, the military, and everybody else,鈥� says Mr. Cardona.听
鈥淎ll of this is tragic, in more ways than one,鈥� he says. 鈥淭hese are human beings.鈥�
