July 26, 2014
Rick Perry Too Timid with the National Guard?
By Jonathon Moseley
The American people cheered – starved for any crumb of leadership and faithfulness to constitutional duties – at the news of Governor Rick Perry calling out the Texas National Guard to patrol the Texas-Mexican border. Then, within the hour, Texas officials conceded that the inadequate contingent of 1,000 guardsmen will not actually do anything but stand around.
Texas officials now admit that the 1,000 guardsmen will simply be a “visual deterrent” – for appearances only. The Texas government argues that the Texas National Guard will not have authority to arrest anyone under the Posse Comitatus law. But that is absurd.
Mexican criminal gangs have been firing 50-caliber machine guns across the border at U.S. border patrol agents on the Texas side of the border as recently as Friday, July 18, as reported Congressman Louie Gohmert (R-TX) on Fox News and confirmed by Border Patrol sources.
No civilian armor can protect against fearsome 50-caliber bullets. Agents were sent scrambling behind natural barriers in the terrain, as 50-caliber bullets “ricocheted all around” them. These extremely powerful military-grade weapons make a distinctive sound, explained Border Patrol agents who took fire. These may well be the same 50-caliber machine guns that Eric Holder’s Justice Department provided to Mexican criminals under the “Fast and Furious” project that the Obama Administration still won’t tell us about.
Yet Rick Perry will send the National Guard simply to stand around and look good, and maybe call the Border Patrol if they see anything. Governor Perry will treat trained soldiers as little more than a neighborhood watch or a fashion show for admirers of men in uniform.
Article IV, Section 4 of the United States Constitution lays out that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”
Article I, Section 10, of the United States Constitution makes clear that “[n]o State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace ... or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” (Emphasis added.)
The one thing Governor Perry did right on July 21 was to painstakingly justify his actions by listing in detail the acts of violence and criminality affecting Texas. Perry – well-advised on this point by lawyers – spelled out the number of crimes committed inside Texas and the number of arrests by Texas caused by the flood across the border.
The State of Texas has constitutional power to engage in genuine war if (a) actually invaded or (b) “in such imminent Danger as will not admit of delay.” Note that this is either-or. Meanwhile, Texas has been invaded. And Texas is also under “such imminent Danger as will not admit of delay.” Both.
As a result, the Posse Comitatus law does not limit the Texas National Guard at the border. Posse Comitatus is totally irrelevant. The law at 18 U.S.C. §1385 prohibits the use of the military “to execute the laws” – “except in cases and under circumstances expressly authorized by the Constitution or Act of Congress.”
As noted above, defending Texas’s borders from invasion is “expressly authorized by the Constitution.” The phrase “to execute the laws” refers to routine civilian law enforcement away from the border. But Texas is expressly authorized to repel invasion or control unspecified danger or domestic violence by the U.S. Constitution.
Texas would have the authority to actually send its National Guard into Mexico. So clearly Texas has the authority to put troops on its own border and defend Texas, including by arresting anyone trying to cross.
Cross-border violence is an invasion. The drafters of the U.S. Constitution were accustomed to raids by forces other than an official country government. Invasion, war, and danger are not limited to official national armies. Even if Mexico as a country is totally uninvolved, if Mexico refuses to control forces attacking Texas from Mexican soil, Texas has the right to.
Meanwhile, Article I, Section 10 of the U.S. Constitution states that “[n]o State shall, without the Consent of Congress … keep Troops, or Ships of War in time of Peace[.]” But Congress gave its consent under the National Guard Act of 1933, in 32 U.S.C. §109:
(b) Nothing in this title limits the right of a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands to use its National Guard or its defense forces authorized by subsection (c) within its borders in time of peace, or prevents it from organizing and maintaining police or constabulary.
(c) In addition to its National Guard, if any, a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands may, as provided by its laws, organize and maintain defense forces. A defense force established under this section may be used within the jurisdiction concerned, as its chief executive (or commanding general in the case of the District of Columbia) considers necessary, but it may not be called, ordered, or drafted into the armed forces.
The last reference – "it may not be called, ordered, or drafted into the armed forces" – is not a limitation on Governor Perry's authority. Rather, it refers to the extensive discussions throughout the National Guard Act of 1933 as to when the National Guard is folded into the national military when called up by the president. So Governor Perry may maintain a defense force that is outside the reach of President Obama as commander in chief or the national command authority.
Governor Perry should set up a separate force under 32 USC §109(c) outside the National Guard itself. I am not going to help provide research to the forces seeking to tear our country down. But Rick Perry would be safer not using the National Guard. He doesn’t have to.
Of greatest concern, the flood of “children” across the border is drawing most of the Border Patrol agents away from the border, leaving the border wide open to invasion by criminal gangs and possibly terrorists. Drawing forces away as a distraction is a classic military maneuver. Meanwhile, Muslim books and prayer rugs have been found near the border.
Reporters explained: “The Obama administration questioned Perry's motives since many of the minors are not trying to evade the border patrol but are turning themselves in after crossing the border.” But where guardsmen are needed is in the border zones left abandoned while Border Patrol agents are changing diapers and making sandwiches for children miles away from the border. The National Guard is needed to back-fill the border while the Border Patrol escorts children to Uncle Sam Summer Camp.
Some are talking about the cost. But this is a bargain. This is truly a case in which Perry’s “investment” in controlling the border will cost less than the financial costs of the flood of illegal immigrants burdening Texas resources, government assistance, and schools.
Here is what “General Perry” should do. (1) Send the National Guard or an alternate force under 32 USC §109(c) to the border – in far greater numbers than only 1,000. (2) Put them to work building a border fence while waiting for something to happen (possibly digging an earth berm and adjacent ditch as a start). (3) Use Texas State eminent domain to get easement rights to build a border fence across private lands. The federal government has been trying to buy entire plots of land, rather than just an easement where the fence goes. The border fence is bogged down by the high cost of trying to buy entire parcels of land instead of easements only.
Will Rick Perry act like hard-charging General George S. Patton or like the do-nothing Civil War general George B. McClellan?