FACT CHECK: Fact Checking Beto O’Rourke’s Claims About Abbott, Federalizing The National Guard

Check Your Fact Staff | Contributor

In a post shared on X, formerly Twitter, former Texas Democratic Rep. Beto O’Rourke made the claims that Texas Gov. Greg Abbott is using the Texas Guard to defy a recent Supreme Court ruling and that President Joe Biden can federalize the National Guard. 

Verdict: Misleading

Abbott has not directly defied the Supreme Court, according to experts, though one disagreed. Similarly, although 10 U.S. Code 12406 allows the National Guard to be federalized in certain circumstances, including rebellion against the government, experts said it is not applicable in this instance.

Fact Check:

The Supreme Court ruled Jan. 24 that federal agents can get rid of the razor wire along the border with Mexico, with Chief Justice John Roberts and Justice Amy Coney Barrett ruling in favor of the Biden administration, according to Texas Standard. In response, Texas Gov. Greg Abbott issued a press release on “Texas’ Constitutional Right To Self-Defense.”

“The Executive Branch of the United States has a constitutional duty to enforce federal laws protecting States, including immigration laws on the books right now,” the statement reads, in part. “President Biden has refused to enforce those laws and has even violated them.”

O’Rourke made a post on X in response to Abbott’s actions. “Abbott is using the Texas Guard to defy a Supreme Court ruling,” the first part of the post reads. 

Two experts told Check Your Fact that Abbott was not defying the Supreme Court, while one disagreed, though did not state definitively say that the governor defied the court’s ruling.

Jean Reisz, an associate law professor professor at the USC Gould School of Law, told Check Your Fact in an email that it was not “reasonable argument” to say that Abbott was not defying the Supreme Court. 

“SCOTUS did not order Governor Abbott to stop installing razor wire, so there could be an argument that Abbott is not defying the SCOTUS ruling by continuing to install razor wire and other barriers, but that is not a reasonable argument since the ruling implies that Texas should not continue to impede federal immigration officials’ access to certain U.S.-Mexico border areas while litigation is still pending,” Reisz said. 

John Shu, an attorney who worked in both Bush administrations, believes there is a lot of misunderstanding around the Supreme Court ruling, he told Check Your Fact via email. (RELATED: Video Of Convoy Is From 2022, Not Of Current Texas Protests)

“The Supreme Court did not order the State of Texas nor the federal government to do, or not do, anything. Thus, Texas is neither ‘defying’ nor ‘rebelling,'” Shu said. “In fact, Texas may continue to keep installing concertina wire, and the Biden Administration may continue cutting it down.”

Denise Gilman, professor at the University of Texas School of Law, also does not believe Abbott has “directly defied or disobeyed” the Supreme Court, though cautioned that Abbott’s actions it may lead to “dangerous showdown between federal and state authorities.”

“I would not say that Governor Abbott has directly defied or disobeyed the ruling since the Supreme Court granted authority to the federal government but did not order the state of Texas to take any action,” Gilman said. “However, Governor Abbott’s unwillingness to allow the federal agents to do their work of immigration enforcement and rescue, which has been directly acknowledged and supported by the Supreme Court, may lead to a dangerous showdown between federal and state authorities.”

In the second part of his tweet, O’Rourke claimed Biden can federalize the National Guard, citing an event in 1957 when then-President Dwight D. Eisenhower federalized the National Guard to “ensure compliance with the law in Arkansas” under Democrat Orval Faubus’ governorship.

According to Newsweek, O’Rourke referenced the event where Faubus “ordered [the National Guard] to prevent Black students from attending Little Rock Central High School during the segregation era.” Under Eisenhower’s authority, the Arkansas National Guard, and federal troops from the 101st Airborne Division “ensured that the students were able to attend the school,” the outlet reported.

Typically, authority over a state’s National Guard belongs to that state’s governor. However, the National Guard can be federalized, the outlet indicated. 

Likewise, 10 U.S. Code 12406 allows the National Guard to be federalized in the following instances: “Whenever– the United States, or any of the Commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation; there is a rebellion or danger of a rebellion against the authority of the Government of the United States; or the President is unable with the regular forces to execute the laws of the United States.”

“The President may call into Federal service members and units of the National Guard of any State in such numbers as he considers necessary to repel the invasion, suppress the rebellion, or execute those laws. Orders for these purposes shall be issued through the governors of the States or, in the case of the District of Columbia, through the commanding general of the National Guard of the District of Columbia,” 10 U.S. Code 12406 indicates.

Katherine Yon Ebright and Joseph Nunn also mentioned federalizing the National Guard under 10 U.S. Code 12406 as a possible response to the Biden administration’s ongoing dispute with Abbott in a July 2022 piece for the online security-focused forum, Just Security.

“An argument could be made that Texas’s actions, insofar as they represent an attempt to usurp the federal government’s immigration enforcement powers, constitute a rebellion against the authority of the federal government. But there is also a strong—and less politically fraught—argument that Texas is interfering with the execution of federal law by civilian authorities,” they wrote in the piece.

In addition, the authors noted that Biden could also invoke the Insurrection Act as “an available alternative” if “there was any question about the sufficiency of U.S. code regarding the National Guard.”

Similarly, in a recent article for the Daily Signal, Hans von Spakovsky, a senior legal fellow at the Heritage Foundation, a conservative think tank, stated the most likely avenue for the Biden administration to use to federalize the National Guard is 10 U.S. Code 12406. However, the Biden administration would have to argue that “Texas is engaged in a rebellion against the authority of the United States,” von Spakovsky noted.

The Heritage Foundation directed Check Your Fact to the Daily Signal article.

Reisz told Check Your Fact that “I do not think Biden has strong footing to federalize the National Guard…”

“President Biden can federalize the Texas National Guard in times of rebellion or insurrection where the use of judicial proceedings is not practicable to enforce federal law.  In this context, I do not think Biden has strong footing to federalize the national guard given the limited SCOTUS ruling and that judicial proceedings are happening and ongoing,” Reisz said.

Shu echoed a similar sentiment.

“The president has the power to federalize a state’s national guard, but he may do so only under very specific circumstances, none of which apply to Texas’s lawsuit.  Title 10 requires the existence of a rebellion, or a state intentionally depriving citizens of their constitutional rights or obstructing the execution of federal law, and the president must issue a proclamation ordering the ‘insurgents to disperse and retire peaceably.’ Also under Title 10, the president may call the National Guard into federal service if the U.S. ‘is invaded or is in danger of invasion by a foreign nation,’ or ‘there is a rebellion or danger of rebellion against federal authority.  Furthermore, it [is] very doubtful that President Biden, politically and legally, wants to admit that the U.S. has been continually ‘invaded’ by millions of illegal aliens at the behest of foreign nations since his inauguration,” Shu said.

“Texas followed the law and normal legal procedure when it sued the Biden Administration in federal court.  That, by definition, cannot be a rebellion or obstructing the execution of federal law,” Shu added. 

Abbott has seen support in the face of his decision. As the National Guard has laid out even more wire along the border, 25 Republican governors have released a joint statement agreeing with Abbott, according to the Washington Examiner

Check Your Fact has contacted the White House, Abbott’s office, O’Rourke’s office and the Texas Military Department’s State Public Affairs Office. This piece will be updated if responses are provided. 

Christine Sellers and Anna Mock contributed to this report.

Check Your Fact Staff