Texas Democratic politicians, such as Rep. Joaquin Castro and failed gubernatorial and Senate candidate Beto O’Rourke, are urging President Joe Biden to seize control of the Texas National Guard, which Republican Gov. Greg Abbott has mobilized to help secure the Texas border.

Abbott did so in the face of the deliberate and intentional inaction by the Biden administration to make sure the border stays open so millions of illegal aliens could continue to flood across from Mexico.

Under the circumstances, any such move by the president would be an abuse of the applicable law.

A number of federal statutes govern the National Guard, which is the modern equivalent of state militias and a reserve component of our military. Under 10 U.S.C. § 12301(a), the secretary of defense (and thus the president) is given the authority in “time of war or of national emergency declared by Congress, or when otherwise authorized by law” to order National Guard units to active duty.

But they cannot be called to active duty by the president “without the consent of the governor of the State.” If the governor consents, the unit called into federal service under Title 10 reports to the president as the commander in chief while in federal service. (RELATED: JOSH HAMMER: Don’t Mess With Texas)

State governors, however, like Abbott, remain the commanders in chief of their state National Guard units, such as the Texas National Guard, unless they have consented to the president’s call for those units to be in active federal service.

The only exception to the consent requirement is contained in subsection (f) and it only applies if National Guard units are needed for active duty for overseas........

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