Posted on 07/03/2014 7:44:55 PM PDT by doug from upland
Many events trigger responses across multiple jurisdictions and different levels of government. The National Guard is exceptionally suited for its Homeland Defense role due to its geographically disperse forces with links to local communities and ties to state and local governments. These relationships allow for rapid and integrated responses in times of emergency. Because of its unique dual constitutional authority, the National Guard serves to bridge the “zone of ambiguity” across State and Federal government boundaries.
The National Guard is the only United States military force that operates across both State and Federal responses, leveraging State Active Duty (SAD), Full-Time National Guard Duty (Title 32) and Active Duty (Title 10). While SAD, Title 32 and Title 10 are different statuses and roles, they provide mutually supporting capability.
In the 2010 National Defense Authorization Act, Congress passed legislation which partially eliminated mutual exclusivity with regard to Chain of Command, allowing specially designated National Guard officers to command forces in both Title 10 and Title 32 statuses – designated as a Dual Status Commanders.
State Active Duty (SAD)
The Governor can activate National Guard personnel to “State Active Duty” in response to natural or man-made disasters or Homeland Defense missions. SAD is based on State statue and policy as well as State funds. Soldiers and Airmen remain under the command and control of the Governor. A key aspect of this duty status is that the Posse Comitatus Act does not apply, giving National Guardsmen the ability to act in a law enforcement capacity within their home state or adjacent state if granted by that state’s Governor.
Title 32 Full-Time National Guard Duty
“Full-time National Guard Duty” means training or other duty, other than inactive duty, performed by a member of the National Guard. Title 32 allows the Governor, with the approval of the President or the Secretary of Defense, to order a member to duty for operational Homeland Defense activities in accordance with the following sections of U.S. Code (USC):
1. 32 USC 502 (f): This statue allows member of the National Guard to be ordered to full-time National Guard duty to perform operational activities. It was used for the Airport Security mission after 9/11 and also for Hurricane Katrina and Rita response effort. 2. 32 USC § 901: The term “Homeland Defense activity” means an activity undertaken for the military protection of the territory or domestic population of the U.S., or of infrastructure or other asset of the U.S. determined by the Secretary of Defense as being critical to national security and at risk of a threat or aggression against the U.S. 3. 32 USC § 902 - Homeland Defense activities: funds. (a) The Secretary of Defense may provide funds to a Governor to employ National Guard units or members to conduct Homeland Defense activities that the Secretary determines necessary and appropriate for participation by the National Guard or members. The key to this instance is that Federal Law provides the Governor with the ability to place a soldier in a full-time duty status under the command and control of the State but is directly funded with Federal dollars. Even though this duty status is authorized by Federal statue, this section is a statutory exception to the Posse Comitatus Act; the Governor may use the Guard in a law enforcement capacity while the chain of command rests in the State.
Title 10 Active-Duty
“Active duty” means full-time duty in the active military service of the U.S. Title 10. It allows the President to “federalize” the National Guard forces by ordering them to active duty in their reserve component status or by calling them into Federal service in their militia status in accordance with the following USC sections:
1. 10 USC § 12301 (d) - Voluntary Order to Active Duty: At any time, a member of the National Guard may be ordered to active duty voluntarily with his or her consent and the consent of the Governor. 2. 10 USC § 12302 – Partial Mobilization: In time of national emergency declared by the President, the Secretary concerned may order any unit and any member to active duty for no more than 24 consecutive months. 3. 10 USC § 12304 – Presidential Selected Reserve Call Up: When the President determines that it is necessary to augment the active force or any operational mission, he may authorize the service secretaries to order any unit and any member to active duty for not more than 365 days. 4. 10 USC § 331 – Federal Aid to State Governors: Whenever an insurrection occurs in any State against its government, the President may, upon the request of its legislature or of its Governor, if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection. This section is a statutory exception to the Posse Comitatus Act. 5. 10 USC § 332 – Use of Militia and Armed Forces to Enforce Federal Authority: Whenever the President considers that unlawful obstructions, combinations, assemblages, or rebellion against the authority of the U.S., make it impractical to enforce the laws of the U.S. in any State or Territory by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces as he considers necessary to enforce those laws or to suppress the rebellion. This section is a statutory exception to the Posse Comitatus Act. 6. 10 USC § 333 – Interference with State and Federal Law: The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy if it: a. So hinders the execution of the law of that State, and of the U.S. within the State, that any part or class of its people is deprived of a right, privilege, immunity or protection named in the Constitution and secured by law, and the constituted authorities of that State are unable, fail or refuse to protect that right, privilege, or immunity, or to give that protection; or b. Opposes or obstructs the execution of the laws of the U.S. or impedes the course of justice under those laws. In any situation covered by clause (1), the State shall be considered to have denied the equal protection of the laws secured by the Constitution. 7. 10 USC § 12406 – Air and Army National Guard: Air and Army National Guard call into Federal service in case of invasion, rebellion or inability to execute Federal law with active forces.
Additional Laws and Authorities
Stafford Act (42 USC § 5121) - designed to bring an orderly and systemic means of federal natural disaster assistance for state and local governments in carrying out their responsibilities to aid citizens. Congress' intention was to encourage states and localities to develop comprehensive disaster preparedness plans, prepare for better intergovernmental coordination in the face of a disaster, encourage the use of insurance coverage, and provide Federal assistance programs for losses due to a disaster.
Posse Comitatus Act (18 USC § 1385)
Because the President is the Commander-in-Chief of the Armed Forces of the United States, he possesses the power to federalize any National Guard unit and place it under his direct command. He could the order the National Guard unit to enforce his will, and any attempt to refuse his orders would be mutiny, punishable under the Uniform Code of Military Justice.
So this doesn’t apply?
State Active Duty (SAD)
The Governor can activate National Guard personnel to “State Active Duty” in response to natural or man-made disasters or Homeland Defense missions. SAD is based on State statue and policy as well as State funds. Soldiers and Airmen remain under the command and control of the Governor.
A good example is when Presidents Eisenhower and Kennedy federalized National Guard units in the Southern states to enforce integration, rather than enforce segregation, as the governors of Arkansas and Alabama intended.
Here is your example from 1954.
“On May 17, 1954, the United States Supreme Court ruled that racial segregation of public schools was unconstitutional in the United States. That ruling would focus the spotlight of national attention in the United States upon the Arkansas National Guard and the Integration of Central High School. The Arkansas National Guard was drawn into the conflict when Governor Orval Faubus ordered them to “Preserve the Peace” by turning away the black students who were attempting to integrate into Little Rock’s Central High School. President Dwight D. Eisenhower reacted to this use of the Guard to foil the court-ordered integration by federalizing the entire Arkansas National Guard and using it to protect the nine black students integrating Central High School.”
The actual Arkansas Guard events happened in 1957.
“By order of the president, the National Guard was thus directed to support the integration rather than block it as the units had been before. On the 24th [1957], elements of the 101st Airborne Division began arriving at Little Rock to provide additional support and took up positions around Central High.”
Eisenhower also deployed the 101st Airborne to Little Rock with bayonets drawn to “adjust the attitudes” of the Arkansas National Guard and the white citizens of Little Rock.
Yes, but the law has changed since then. Faubus was “preserving the peace.” In this case, it appears that the governor can act “in response to natural or man-made disasters or Homeland Defense missions.” This is clearly a Homeland Defense mission. I don’t think this has ever been tested. It almost looks like the case can be made that they are under command and control of the governor in that circumstance.
I guess a Governor can tell the Guard what to do, until their Commander in Chief tells them differently.
Bingo!
ok
I think the governor could activate the National Guard to protect the border, but it’s doubtful he could get the federal government to pay for it or provide any support.
0bama might even order the National Guard to stand down. Then what?
The National Guard and the Air National Guard are components of the Federal Reserves subject to the orders of the Federal commander-in-chief when on Federal active duty, but they are also subject to orders of the Federal commander-in-chief under certain limited circumstances established by decisions of the Supreme Court of the United States (SCOTUS).
State Defense Forces were supposed to be a state military or naval force which cannot be commissioned into Federal service like the Natonal Guard or Air National Guard, but the SCOTUS decisions still permit the Federal commander-in-chief to command the State Defense Forces under the Constitution’s provision for the President to command the militia operating in active state service and not active Federal service.
See the Wikipedia articel about State defense force:
https://en.wikipedia.org/wiki/State_Defense_Forces
Well that would be an interesting situation. I would like to see a governor start the ball rolling. Who’s got the guts to do it.
He could do what Eisenhower did.
The refusal of a federalized National Guard unit to obey the Commander-in-Chief would constitute mutiny, punishable under the Uniform Code of Military Justice. The President would have no choice but to send in the Regular Army or Marines to bend the Guard unit to his will.
Think in terms of what Eisenhower did in Little Rock in 1957 when he feared that the Arkansas National Guard might refuse his orders and obey Gov. Orval Faubus instead.
Eisenhower was enforcing federal court orders.
The only orders 0bama could claim to be enforcing would be his own.
Better yet, send the National Guard to DC and institute some American Regime Change
We need a constitutional amendment that says that the Guard can be federalized only by an act of Congress. If the President needs more troops fast, he can call up the reserves.
The Guard must stay under state control unless called up by Congress. This would by a check against Presidential tyranny.
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