Biden Doesn’t Have Any Legal Authority to Seize Control of Texas National Guard
27th January 2024
A number of federal statutes govern the National Guard, which is the modern equivalent of state militias and a reserve component of our military. Under 10 U.S.C. § 12301(a), the secretary of defense (and thus the president) is given the authority in “time of war or of national emergency declared by Congress, or when otherwise authorized by law” to order National Guard units to active duty.
But they cannot be called to active duty by the president “without the consent of the governor of the State.” If the governor consents, the unit called into federal service under Title 10 reports to the president as the commander in chief while in federal service.
State governors, however, like Abbott, remain the commanders in chief of their state National Guard units, such as the Texas National Guard, unless they have consented to the president’s call for those units to be in active federal service.
The only exception to the consent requirement is contained in subsection (f) and it only applies if National Guard units are needed for active duty for overseas service—such as when we were in the Iraq and Afghanistan wars.