Government

Private National Guard Field Trips To The Border May Be Useless But At Least They're Also A Constitutional Crisis!

Governors whipping up private armies is a very bad thing.

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The federal government is telling South Dakota to send another 125 National Guard troops to the Mexican border. I’m sure that’ll do it. Nothing plugs up a thousand miles of land like 125 people!

But this latest request feels like the federal government throwing South Dakota a lifeline to avoid confronting the constitutional crisis ginned up by the governor in recent weeks. Media coverage of South Dakota’s border hijinks over the past few days frame everything within the context of Governor Noem “approving a federal request” which was decidedly not the discussion when this story first hit. That’s unfortunate, because there’s reason to fear that the nascent crisis of the last couple weeks will continue to come up until we have a real reckoning.

The official federal request for 125 troops comes after Noem originally declared that she was sending “up to 50” guardsfolk to Texas on her own authority to respond to a request from the governor of Texas all on the dime of a Republican megadonor. If privately funded commandeering of the armed forces to enforce Tucker Carlson’s fever dreams sounds like a dystopian nightmare, then you are paying the appropriate amount of attention.

Lawyers Defending American Democracy thinks this is a problem too, highlighting the disturbing conceit that patrolling an international border is “state” business as opposed to a federal prerogative with massive foreign policy implications. And when it comes to private funding, military law expert Eugene R. Fidell prepared a full statement on behalf of LDAD. “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,” Fidell says. “Democracies do not have private armies.”

But it will be cool to spice up our nation’s military uniforms with some corporate sponsorship! Today’s brutal crackdown of a peaceful protest is brought to you by Swanson’s Frozen Foods… give peas a chance, not peace.

Ideally this misadventure in performative federalist stunt work would end with the Department of Defense pulling rank and ordering everyone back to South Dakota. But instead the administration appears to be papering over the problem by retroactively making it legal. I hear that ignoring misbehaving children always works out!

Buckle up, everybody. If the feds are willing to give these clown car antics pass, it’s only a matter of time before the next state with a governor eyeing the White House turns the National Guard into a fundraiser to run empty missions to engender coverage. It’s a dangerous precedent to set.

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HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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