Private Armies Attack the Rule of Law

June 28, 2021

July 12, 2021

Editorial credit: Hayk Shalunts

The challenges to American democracy have, in the last few years, been many and varied.

Generally, these threats to democracy have been clear, such as the efforts to subvert and overturn the 2020 presidential election, and the spate of post-election copycat state measures seeking to suppress voting by members of racial minorities.

There are also recent controversial developments that likewise threaten democracy, yet receive insufficient attention. A pair of recent and related examples are: (1) Texas Governor Greg Abbott’s deployment of his state’s National Guard to protect Texas from migrants coming from, or through, Mexico, and (2) South Dakota Governor Kristi Noem’s June 29 announcement that her state would accept funding from a private donor (not a South Dakota resident) for that state’s National Guard to augment the deployment ordered by Governor Abbott. 

Weird, you might say, but a threat to democracy? No doubt about it.

American democracy is like a clock: there are many moving parts. In responding to the Big Lie of election fraud, we focus on such democratic principles as our election system, freedom of speech, freedom of the press, and the complex interplay among the three Branches of government.

But American democracy has another dimension: the country is a federal union, and the Constitution takes pains to protect the states as sovereigns while also ensuring that, within its sphere, federal law is supreme. When a state gets out of its lane, it undermines federal supremacy, and with it, the vitality of our democratically-elected and democratically-accountable national institutions.

Texas and South Dakota are way out of their lane.

Prof. Stephen I. Vladeck of the University of Texas Law School has written:
[T]his entire episode is an empty, partisan stunt—with Abbott purporting to take over for the federal government as the first line of border security. But as the Supreme Court reiterated as recently as 2012, it’s the federal government, and not the states, that makes immigration policy.

As Justice Anthony Kennedy wrote for the court in Arizona v. United States, states “may have understandable frustrations with the problems caused by illegal immigration while that process continues, but [they] may not pursue policies that undermine federal law.”

Thus, although Texas, like any state, can support federal immigration enforcement, it cannot supplant it. Reasonable minds will surely disagree about the current state of federal immigration policy. But hopefully we can at least agree that leaving immigration policy up to each state is not just precluded by the Constitution’s supremacy clause but is, in practice, a recipe for disaster.

Border control and the regulation of immigration are federal responsibilities. The responsibility for policing the boundary between Mexico and Texas lies with the federal government. Texas can do as it chooses with respect to policing violations of state law by persons who have crossed into the state from Mexico (or Louisiana, Arkansas, Oklahoma, or New Mexico, which it also borders), but keeping people out is none of its affair. 

Taking military steps along an international border, and addressing international migration, are both functions that have significant foreign policy implications and are the business of the federal government.

One can easily imagine how a border state’s meddling—much like that of self-appointed vigilantes elsewhere in the Southwest—could frustrate American foreign policy. Imagine what mischief could result if the other land-border states–New Mexico, Arizona, California, Washington, Idaho, Montana, North Dakota, Minnesota, Michigan, New York, Vermont, New Hampshire, Maine, and Alaska–decided to adopt their own immigration and border control programs.

Civilian control of the armed forces is a key feature of American democracy. Article I, section 8, of the Constitution empowers Congress to “provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” The Second Amendment contemplates “a well-regulated Militia.” The National Guard is the modern-day militia. A militia cannot be a private army. That is what makes the fake “militias” that have developed in some parts of the country so disturbing. 

Gov. Noem’s spokesperson has cited two general provisions of her state’s code (§§ 5-24-12 and 34-48A-36) that permit state acceptance of private donations as authority for using private money to fund the posse she has offered Gov. Abbott. These provisions do not specifically authorize the state to accept private funding for the state’s National Guard or its operations.  But even if private funding is permissible under state law, accepting it for the purpose of a state’s unconstitutionally meddling in international border control and immigration would set a dangerous precedent, effectively allowing well-heeled, unaccountable individuals to privatize a public force while preserving the semblance of its public character.

Democracies do not have private armies. Gov. Noem should think again before sending 50 of her state’s National Guard members to interfere in matters constitutionally committed to the responsibility of the federal government – with or without private funding. 

Lawyers Defending American Democracy strongly opposes the South Dakota mini-deployment to Texas. This action by Texas, aided and abetted by South Dakota, serves to frustrate federal policy and needlessly complicates the task of the federal officials who are charged with its enforcement. 

The Biden administration should demand that these states cease and desist. If they refuse, the administration should federalize their National Guards and order them to remain in their barracks, while seeking injunctive relief from the federal courts. 

If Governors Abbott and Noem persist, they will earn the same ignominious footnote to history as Governors Ross Barnett of Mississippi, George Wallace of Alabama, and Orval Faubus of Arkansas - governors who sought to frustrate another important element of the federal Constitution: desegregation.

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