Who Commands The National Guard? Governors Vs. Presidents

The use of the National Guard for law enforcement is a contentious issue in the United States. While the National Guard is typically under the command of state governors, who can deploy them within their respective states or territories, there are certain situations where the President can assume control and use them for civilian law enforcement. This was seen in 2020 when President Trump deployed the National Guard to police protests in Washington, D.C. Governors have also been known to support or challenge laws that impact their authority over the National Guard, such as the Montgomery Amendment, which gave the federal government more control over the deployment of National Guard troops for training outside the US.

Governors can use the National Guard for law enforcement if it's consistent with state law

The use of the National Guard for law enforcement is a complex issue that involves the interplay between federal and state laws. While the National Guard is typically associated with military functions, there are indeed scenarios in which governors can utilise the National Guard for law enforcement purposes, provided it aligns with state law.

The Posse Comitatus Act, which restricts the use of federal military forces in domestic law enforcement, does not apply to the National Guard in the same way. Members of the National Guard are generally exempt from this Act because they report to their respective state or territory's governor. This means that governors can deploy the National Guard for law enforcement purposes within their state, as long as it is consistent with the laws of that state. This exemption from the Posse Comitatus Act is particularly relevant when the National Guard is not under federal control, as the governor assumes the role of commander-in-chief of the units within their state.

However, it is important to note that there are exceptions and complexities. For example, the District of Columbia National Guard is always under the control of the President, which grants them the ability to use the DC Guard for law enforcement purposes. Additionally, there is a legal middle ground (Title 32 status) where Guard personnel are paid with federal funds and can perform missions requested by the President while remaining under state command. This loophole was notably exploited in 2020 when President Trump deployed the DC National Guard and requested 11 state governors to deploy their Guard personnel into Washington, effectively utilising a federally controlled military force for civilian law enforcement while bypassing the Insurrection Act.

The National Guard also plays a role in counter-drug activities and demand reduction efforts. Governors have the authority to withhold or recall National Guard forces from these activities and can enter into agreements with law enforcement agencies to provide personnel, equipment, and support for such initiatives.

Historically, there has been tension between governors and the federal government regarding the command and deployment of the National Guard. The Montgomery Amendment, enacted in 1986, gave Washington the final say over the deployment of National Guard troops for training outside the US, sparking legal challenges from several states. This highlighted the ongoing debate over the extent of a governor's authority in utilising the National Guard.

The Posse Comitatus Act does not apply to the DC National Guard, allowing the President to use it for law enforcement

The Posse Comitatus Act (PCA) is a United States federal law that limits the powers of the federal government in the use of federal military personnel to enforce domestic policies within the United States. The Act bars federal troops from participating in civilian law enforcement except when expressly authorized by law.

The PCA, however, does not apply to the District of Columbia (DC) National Guard. Unlike other state and territorial National Guards, the DC National Guard is always under presidential control. This unique status of the DC National Guard creates a loophole in the PCA, allowing presidents to use it for law enforcement purposes. The Department of Justice has long asserted that the DC National Guard can operate in a non-federal, "militia" status, which is not subject to the PCA. This interpretation gives the president the authority to deploy the DC National Guard for law enforcement activities, as seen in 2020 when President Trump sent the DC National Guard to police protests in Washington, D.C.

The PCA's exclusion of the DC National Guard from its scope has significant implications for the use of military force in domestic affairs. The president's ability to utilize the DC National Guard for law enforcement without the constraints of the PCA raises concerns about the potential erosion of civil liberties and the balance of power between the federal and state governments.

To address this loophole, some have proposed legislative changes to clarify that the PCA applies to National Guard forces whenever they are under a federal chain of command, regardless of their official status. These proposals aim to uphold the principle of civilian control over the military and prevent the executive branch from circumventing congressional checks and balances.

Additionally, the PCA has another loophole related to the Title 32 status of the National Guard. In this status, Guard personnel receive federal funding and may carry out missions at the president's request while remaining under state command. This middle ground between state and federal control allows presidents to exert influence over the National Guard's activities, potentially blurring the lines between civilian and military authority.

The National Guard can be used for counter-drug activities and demand reduction

The National Guard has been used for counter-drug initiatives and demand reduction programs, such as the Drug Demand Reduction (DDR) program in West Virginia. The DDR program focuses on being present in schools to interact with students, providing positive role models for drug-free lifestyles and teaching students about making good choices. The DDR program has reached hundreds of thousands of students, aiming to inspire and motivate new generations each year.

The National Guard is a vital resource for states in addressing drug-related issues and plays a significant role in community safety. The respective state National Guards are authorized by the Constitution of the United States, which recognizes their role in executing federal laws, suppressing insurrections, and repelling invasions.

While the Posse Comitatus Act restricts the use of federal military personnel in law enforcement, it does not apply to the National Guard in the same way. Members of the National Guard typically report to their state or territory's governor and are free to engage in law enforcement as permitted by state law. However, when National Guard personnel are called into federal service, they become subject to the Posse Comitatus Act until they return to state control.

The President can deploy the National Guard for civilian law enforcement, as seen in the case of the DC National Guard's deployment during the 2020 protests. Additionally, governors can activate the National Guard for service in their states in response to a declared state of emergency. This activation is known as State Active Duty (SAD) and grants the governor command over their respective state's National Guard units.

The National Guard can be used for interdiction and mutual assistance and support agreements

The National Guard can be used for drug interdiction and counter-drug activities, including drug demand reduction, when not in Federal service. This is authorised by the laws of the State and at the request of the Governor of the State. The use of the National Guard in this way is in accordance with the State's drug interdiction and counter-drug activities plan. This includes the participation of National Guard personnel in training at National Guard counter-drug schools.

The National Guard of a State can be ordered to perform full-time National Guard duty for the purpose of carrying out drug interdiction and counter-drug activities. This includes the use of National Guard personnel in drug interdiction and counter-drug law enforcement activities, as well as drug demand reduction activities. The pay and benefits of the members of the National Guard while participating in this training are the same as those they are entitled to when performing duty for the purpose of carrying out drug interdiction and counter-drug programmes.

The National Guard counter-drug schools include:

• Multi-Jurisdictional Counter-drug Task Force Training (MCTFT), St. Petersburg, Florida
• Midwest Counter-drug Training Center (MCTC), Johnston, Iowa
• Regional Counter-drug Training Academy (RCTA), Meridian, Mississippi
• Northeast Regional Counter-drug Training Center (NCTC), Fort Indiantown Gap, Pennsylvania
• Western Regional Counter-drug Training Center, Camp Murray, Washington

These schools provide training in drug interdiction, counter-drug activities, and drug demand reduction strategies to National Guard personnel and other non-Federal governmental and private entities engaged in such activities.

The President can use the National Guard to enforce federal authority and suppress insurrection

The Posse Comitatus Act bars federal troops from participating in civilian law enforcement except when expressly authorized by law. However, invoking the Insurrection Act temporarily suspends this rule. The Act allows the President to deploy the military to assist civilian authorities with law enforcement, such as enforcing a federal court order or suppressing an uprising against the government.

The Insurrection Act has been modified twice. The first modification, in 1861, allowed the federal government to use the National Guard and armed forces against the will of the state government in the case of "rebellion against the authority of the government of the United States." The second modification, in 1871, added language to protect Black Americans from attacks by the Ku Klux Klan and enforce the Equal Protection Clause of the Fourteenth Amendment.

The Insurrection Act also allows the President, with or without the state government's consent, to use the military to enforce federal law or suppress a rebellion against federal authority in a state, or to protect a group of people's civil rights when the state government is unable or unwilling to do so. However, the Act does not provide a criminal penalty for insurrection, and there are concerns about the lack of clear standards within the Act, giving the President almost limitless discretion to deploy federal troops in cases of civil unrest.

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