Skip to comments.Understanding the Guard’s Duty Status (put them on the border?)
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 states 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 , 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.
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:
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.
Under the law, that would be sufficient.
Of course it would be the end of the Republic, but that may be over in any event.
That would set off a second civil war, and it’s the federal authorities who possess the WMD’s and the will to use them on their enemies, foreign and domestic.
I think that is the major problem, Texas does not want to pay for the activated Guard salaries knowing that they will not be paid back. Also, there would be a command crisis if Obama ordered them to stand-down. I don’t think Perry wants to go that far. Still, he could call up the State Guard or Sheriff’s posses to police the border.
As Commander in Chief, he can federalize the Guard to take it away from state activities and control.
I highly doubt that anyone would nuke Texas. Besides, if Texas goes other states will, but good timing for Obama, Virginia has a Dem Governor right now.
when soetoro tries to take command they say "screw you".
Obviously soetoro cares nothing about the Constitution or the rule of law and is purposely undermining the Republic.
It is treason and this is for real.
The Texas State Guard would be pretty much useless.
At least if 0bama ordered the NG to stand down, he would show his true colors. His approval ratings are already in the tank, and if he pulled such a stunt, they’d drop to near zero.
Maybe the congress critters wouldn’t be so timid to impeach a president nobody seems to like anyway.
If Obama took control, then those Guardsmen would be U.S. Army units, they wouldn't care what the governor said to them.
Why put them on the borde? They will have no authority whatsoever to apprehend or detain illegals. They won’t even be allowed to repel Mexican Cartel paramilitaries
Then he would show his true colors and even more Americans could see what he is up to.
It would be militia time.
I doesn’t matter, when the NG is on the border they are not allowed to be armed and I would not ask anyone to serve here that is not armed. They are also not allowed to actually stop anyone, they have to hand anyone they might encounter to Border Patrol. Putting the NG on the border is theater, that is all. If it worked like it should it would be a great idea.
Since, as a taxpayer, I am going to pay for all these illegals to be in Texas, I would not mind my tax dollars being used to keep them out. I also would not mind if Texas used a chunk of its Rainy Day fund to pay for the Guard. I would rather use the money for that purpose than to keep funding the worthless public schools and their union or to fund even more welfare payments than we already are.
I do wonder how many minutes it would take Obama to tell them to stand down and what the fallout from that decision would be. Of course if New Mexico and Arizona did this at the same time it could certainly change the political landscape pretty quick.
Just wish Perry would do it to force Obama’s hand.
All I know is that when Bush put the NG on the border illegal traffic stopped almost overnight.
Personally, I think we are all screwed as no one has the guts to put their foot down. This circus is going to go on till Nov 2016 and then the real fun will be begin.
Point well taken.
Border-crossers are now seeking out "the green uniforms" and essentially surrendering to them. They want to be taken into custody.
They know that Obama's policy of "deferred action" means that, in time, they'll be released into the population and told to return for a court date. Fat chance.
In particular, the Unaccompanied Alien Children (UAC) from countries other than Mexico cannot be refused entry. By law, they must be taken into custody -- where they become subject to "deferred action".
What are the National Guard...or State Guard...or DPS...or county sheriffs to do? Other than assist the BP in rounding up the border-crossers? Under current law, they cannot repel them.
NG don’t transform into Army as far as I know. He could put them under federal control but Rule of law and the Constitution don’t matter to soetoro so why should it matter to the governors or us for that matter?
We the people are the Militia. The Guard is the Federally recognized Militia. SAD and Title 32 gives the Militia law enforcement capability. When the Guard was put “on the border” before, I don’t think they were called up under either provision so they could not do law enforcement. If there is a question, they also could be deputized. There are a lot of unemployed people that would be glad for some sort of paycheck under SAD. Unemployed ex-military and ex-law enforcement (or retired) come on down. We will set up a paid rotation schedule that fits your needs. Bring your own weapon and ammo; we will provide a chair, food, drink and regular breaks. Just a suggestion.
The problem with the state Governor calling out the guard for duty on the border is two-fold:
1. How long can these folks stay away from jobs and family since the duty of guarding the border in the absence of Federal actions to defend the border of the country seems to be off the table?
2.Is there any guarantee that the State will be reimbursed for conducting an action that is properly the concern of the Federal government but contrary to the President’s policy on illegal entry into the country?
As far as I know they do, for instance 40% of our WWI troops were Guard.
The Guard and active duty are seamless when called to active service, for instance Green Beret units, regardless of whether they are currently active, or Guard, are the same when called up.
Here is the misunderstanding. This is what I was responding too. Guardsmen can be federalized but they do not become Army.
Same thing, if a guardsman doesn’t become part of the U.S. army when he goes active, then what is he?
Active Duty/ Guard ping.
I’m trying to understand this. Some up thread said the NG couldn’t be armed. However, the article includes:
“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 states Governor.”
Given Posse Comitatus doesn’t apply and they have the ability to “act in a law enforcement capacity”, if they are under control of the Gov and are in compliance with Texas state laws (not sure about the law regarding the NG, but I know TX is open carry), I’m trying to understand why they couldn’t be armed.
Incorrect. Unless they are activated under Title 10 the State has authority to direct Guard forces in support of law enforcement activities. A State can authorize the State National Guard to enforce state law, if the States law allows it.
3-2. State Policy
State laws and policies govern the use of National Guard Soldiers and Airmen in support of domestic law
enforcement support and mission assurance operations while serving in state active duty and US Code, Title 32
statuses. State laws and policies authorize National Guard members in either Title 32 or state active duty (SAD)
status to support law enforcement agencies and are implemented through state plans and policies. As most National
Guard operations in support of law enforcement and mission assurance are conducted in a non-federalized status, a
clear understanding of applicable state policies is critical to mission success. It is strongly recommended that state
commanders receive a legal briefing addressing state specific laws, policies, directives and executive orders from
their Judge Advocate General prior to conducting domestic law enforcement support and mission assurance
operations within their respective states.
NGR 500-5/ANGI 10-802 August 18, 2010
a. Criteria for the use of the National Guard operating in a state status in support of domestic law enforcement
and mission assurance operations are defined within the laws, policies, directives and executive orders that govern
the specific state in which operations are conducted.
b. Department of Defense policies and directives do not address National Guard assets in a non-federalized
status conducting state operations approved by the Governor in support of local and/or state civil authorities.
However, there exists potential for such state operations to result in confrontation, use of lethal force, or national
media attention. Therefore, the Adjutants General shall inform the Chief, National Guard Bureau (CNGB) of such
support. The CNGB shall then inform the Secretary of Defense, Chairman of the Joint Chiefs of Staff (CJCS), and
the Joint Director of Military Support (JDOMS).
When operating under SAD or Title 32 they are only restricted by state law. A Governor can activate and direct the forces to use force if necessary, to enforce law, etc if the states laws allow it. Posse Comitatus as you listed does not apply and if State law allows it they can most certainly be armed.
OK so Perry calls up the National Guard on his own authority as governor and sends them to the border. Who is responsible for paying their salaries, food, fuel for their vehicles and helicopters, so on and so forth? Based on that chart it looks like the state is.
The states are. Since states receive money for Guard pay from the Government, the money for SAD would come out of the general fund or emergency fund.