The Republic of Texas v. United States
Secretary Napolitano has canceled today’s scheduled trip to Texas. She was to have joined Governor Rick Perry in Port Arthur. A bit before 10:00 pm (eastern) last evening the DHS press office announced the decision, “due to bad weather predictions for tomorrow. The inclement weather would prohibit Secretary Napolitano from being able to take her trip as planned to fully assess recovery and rebuilding efforts from hurricanes Ike and Gustav.”
Today’s weather forecast for Port Arthur reads, “Variable clouds with scattered showers and thunderstorms, mainly during the afternoon hours. A few storms may be severe. High 78F, Winds SSE at 10 to 20 mph. Chance of rain 40%.”
The storm warning of most concern may be more political than meterological. While the trip was scheduled to examine hurricane recovery, whaddaya want to bet the border might be brought up?
One month ago Governor Perry asked the Secretary for, “… an additional 1000 Title 32 National Guard positions… along with six OH-58 helicopters equipped with Forward Looking Infrared Radar for night operations. These resources will be utilized only in Defense Support of Civilian Authorities (law enforcement).” Perry’s letter and some contextual comments can be accessed on the Office of the Governor website.
The request for sending 1,000 troops to the border, “is under active consideration in the Defense Department and will depend on several factors,” Napolitano is quoted as saying in the Latin American Herald Tribune. In a Wednesday interview the Secretary explained, “It’s a decision that must be made with much caution because, as President (Barack) Obama has already said, we don’t want to militarize the border. We want to lead (the anti-drug fight) with the civil authorities and that’s what we’re doing.”
In Texas and other border states, this issue is being played as an example of federal restraint limiting local authority. In yesterday’s Dallas Morning News blogsite there was a spirited discussion (or at least an exchange of views). One of the blog contributors, signing in as True Texan, wrote, “I’ll side with a Texan versus a Washington insider EVERY TIME when it comes to the safety and protection of Texas. Obama doesn’t live here and doesn’t know what’s going on. He, like the other Ivory Tower dwellers, are insulated from reality, especially the reality of the Texas border.”
I expect the Governor’s political operatives are not unhappy with True Texan’s characterization.
As is so often the case, reality can be complicated. Notice that in his letter the Governor is requesting 1000 Title 32 National Guard positions. This is a reference to the ever popular Title 32 of the United States Code. The Governor already has authority to deploy any Texas Title 32 forces. This is explicit in several sections of the Code (and the US Constitution), including Chapter 9, Section 907, “Nothing in this chapter shall be construed as a limitation on the authority of any unit of the National Guard of a State, when such unit is not in Federal service, to perform functions authorized to be performed by the National Guard by the laws of the State concerned.”
But if the Governor deploys on his own authority, he will need to pay for the deployment with state dollars. What he is really requesting is not federal permission to use Texas troops, rather he is requesting federal funding for those troops. To Governor Perry’s credit he has pressed the Texas state legislature to continue funding extraordinary costs associated with the State’s role in border security. But 1000 troops and six helicopters can eat up millions more very quickly.
Related news coverage KFOX El Paso, Dallas Morning News (editorial), the Daily Telegraph, and the American Forces Press Service.
(Last evening Mr. William R. Cumming, a regular contributor to HLSwatch, was kind enough to respond to my request for his read on the situation. From 1979 to 1999 Mr. Cumming was on the staff of the FEMA General Counsel. As Mr. Cumming wrote me, “… looks like (it’s) really all about money.”)
UPDATE: In her Wednesday meeting with the Senate Homeland Security and Government Affairs Committee, Secretary Napolitano demurred regarding additional funding focused on the Southern Border.
