Homeland Security Watch

News and analysis of critical issues in homeland security

March 26, 2009

The Republic of Texas v. United States

Filed under: Border Security,Budgets and Spending,Homeland Defense — by Philip J. Palin on March 26, 2009

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.

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6 Comments »

Comment by William R. Cumming

March 26, 2009 @ 9:48 am

Not sure that either the President or Secretary DHS understands completely the role of the uniformed and armed federal Border Patrol made part of DHS from being housed in DOJ prior to March 1, 2002 under the Homeland Security Act of 2002 (November 2002). If 18,000 armed and uniformed men and women are not militarization of the border what is it then? The Secretary needs to stop being MASTER of DISASTER and get Craig FUGATE’s nomination through to confirmation so she can pay attention to the rest of her departments programs, functions, and activies. And how about all those review directives she issued in February with response dates by the end of the month? How about a Press Conference (has she had any?) where she tells us what she found out and how it has impacted her decisions or not?

Pingback by Tough days ahead | Homeland Security Watch

March 26, 2009 @ 4:32 pm

[...] worth scanning Weather.com’s top stories for what’s ahead in the next 48 hours.  Maybe Secretary Napolitano was not so concerned about the weather in Port Arthur, as she was concerned to be in D.C. to deal [...]

Comment by JD Anderson

March 28, 2009 @ 3:52 am

Constitution for the united States, Article 1, Section 8, Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions. Clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress. Article II, Section 2, Clause 1: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States. Bill of Rights, Amendment II: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. Amendment V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger. Any of this mean anything anymore?

Pingback by Who, what, when, where, and why | Homeland Security Watch

March 28, 2009 @ 5:45 am

[...] essay on 85% of what you know about homeland security is wrong and this Thursday’s piece on The Republic of Texas v. United States.  A  quick post on a terrorist training manual was close [...]

Comment by William R. Cumming

March 29, 2009 @ 9:18 am

The comment of JD Anderson raises some interesting questions. See 10 US Code Sections 331-334.

Also of interest is Article IV of the Constitution, Section.4. “The United States shall guarantee to every STATE in the 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.

Personally I believe the sections cited by JD Anderson and the above should be the subject of full and extensive Congressional oversight and legislative hearings. While Congress has chosen to implement in part this language in Title 10 of the US Code–specifically Armed Forces–the question I would ask is why? Possibly other than use of military forces would often be appropriate. Time to get busy Congress!

Pingback by Border talks: Governors seek to exchange constitutional responsibility for cash | Homeland Security Watch

June 30, 2009 @ 5:28 am

[...] Bellavita addressed this issue in a Saturday post.   Back in March I gave it some [...]

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