This article first appeared at Lawfare.
The National Guard plays a crucial role in the United States, both in its capacity as a reserve component of the armed forces and as a versatile asset that state governors can call on in times of civil unrest, natural disaster, or even the coronavirus pandemic. Section 502(f) of Title 32 of the U.S. Code is a long-standing authority that facilitates a range of important domestic National Guard missions. In the summer of 2020, however, the Trump administration made unprecedented use of this law to bring unfederalized, out-of-state Guard troops into Washington, D.C., to respond to protests following the murder of George Floyd. In doing so, the administration put forward an unbounded interpretation of § 502(f) that risks subverting the broader statutory scheme Congress has created to govern domestic deployment of the military. In addition, if a future president were to rely on this interpretation of the law to ask governors to send unfederalized Guard personnel into a nonconsenting state—as opposed to a non-state jurisdiction like D.C.—that deployment would violate the Constitution.
Section 502 is the primary statute that authorizes the National Guard to operate in “Title 32 status,” one of the three different duty statuses in which members of the Guard may serve at any given moment. In “State Active Duty status,” Guard personnel carry out a state-defined mission, under state command and control, and with state funding and benefits. By contrast, in “Title 10 status,” the Guard has been “called into federal service,” or “federalized,” by the president. When federalized, Guard forces carry out federal missions under federal command and control, and with federal funding and benefits. Title 32 status occupies a middle ground between State Active Duty and Title 10 status, featuring both federal and state involvement. In this hybrid status, the Guard remains under state command and control but can perform federal missions, is paid with federal funds, and receives federal benefits. Crucially, because Guard personnel in Title 32 status are under state control, they have not been federalized and are not subject to the Posse Comitatus Act. That means they are not barred from participating in civilian law enforcement activities.
Although Title 32 status was originally conceived to allow the federal government to foot the bill for the extensive training requirements that Congress requires each state and territory’s National Guard to fulfill, the purposes for which it may be used have expanded over time. Today, § 502(f) allows the Guard to carry out a wide range of nontraining, operational missions in Title 32 status. But the authority that the law provides has its limits.
The 2020 National Guard Deployment in Washington, D.C.
In early June 2020, thousands of National Guard troops from 11 states were deployed to Washington, D.C., as part of the Trump administration’s response to largely peaceful protests following the police killing of George Floyd in Minneapolis, Minnesota. At the time, there was a great deal of confusion and controversy over the legal authority under which these soldiers had been brought to D.C.
In a letter to D.C. Mayor Muriel Bowser, who had publicly objected to the deployment, then-U.S. Attorney General William Barr offered the following explanation: “At the direction of the President, the Secretary of Defense … requested assistance from out-of-state National Guard personnel, pursuant to 32 U.S.C. § 502(f), which authorizes States to send forces to assist the ‘[s]upport of operations or missions undertaken by the member’s unit at the request of the President or Secretary of Defense.’” According to Barr, these troops had been given broad responsibilities, including authority to participate in certain law enforcement activities:
“Consistent with the President’s direction, the Secretary of Defense assigned to out-of-state National Guard personnel the mission of protecting federal functions, persons, and property within the District of Columbia. That mission includes the protection of federal properties from destruction or defacement (including through crowd control, temporary detention, cursory search, measures to ensure the safety of persons on the property, and establishment of security perimeters, consistent with the peaceful exercise of First Amendment rights); protection of federal officials, employees, and law enforcement personnel from harm or threat of bodily injury; and protection of federal functions, such as federal employees’ access to their workplaces, the free and safe movement of federal personnel throughout the city, and the continued operation of the U.S. mails.”
The deployment and Barr’s subsequent justification raise two crucial questions about the scope of § 502(f). The first is whether § 502(f) authorizes the use of National Guard personnel to perform any mission the president could conceivably request. The Guard’s June 2020 operation in D.C. was unprecedented; § 502(f) had never before been used for a federally requested deployment in response to civil unrest. Historically, when presidents have desired to deploy the military for this purpose, they have invoked the Insurrection Act and deployed either active-duty federal troops or federalized National Guard. The District of Columbia’s unusual status within the United States’s federal system presents a second question: whether the deployment of unfederalized, out-of-state Guard troops into a nonconsenting jurisdiction would be lawful if that jurisdiction were a state. The answer to both of these questions is no.
Section 502(f): a Broad Authority, but Not an Unlimited One
Section 502 of Title 32 of the United States Code addresses “required drills and field exercises”—that is, the particulars of how often and in what manner National Guard units are required to train each year. Its first provision, § 502(a), establishes the normal training requirements for the Guard, commonly summarized as “one weekend a month and two weeks a year.” Section 502(f) sits at the end of the statute and has two prongs. The first, § 502(f)(1), allows Guard personnel to be ordered to perform “training or other duty” above and beyond the standard training regimen described by subsection (a). The second, § 502(f)(2)(A), provides that this “training or other duty” may include “[s]upport of operations or missions undertaken by the member’s unit at the request of the President or Secretary of Defense.”
The word “request” in § 502(f)(2)(A) is significant. The president or the secretary of defense may ask a governor to deploy National Guard troops, but the governor is under no obligation to acquiesce. This reading is supported by 32 U.S.C. § 328, which makes clear that a governor is the party empowered to order National Guard troops to duty under either prong of § 502(f). A governor’s right to refuse was evident in the summer of 2020—the Trump administration asked a total of 15 governors to deploy their Guard personnel into Washington, but four declined to do so. This point is discussed further below.
As for the question of what kinds of missions § 502(f) is intended to authorize, the statute itself offers little guidance. The words “other duty” in § 502(f)(1) plainly permit the National Guard to carry out non-training-related missions. The critical question is how broadly “other duty” should be interpreted. Barr and the Trump administration appear to have assumed that “other duty” means any duty—that under § 502(f)(2)(A), National Guard troops provided by a willing governor may be used to perform any mission the president could request. As Barr explained, the out-of-state Guard forces in D.C. had been assigned a wide range of duties, including law enforcement activities such as “crowd control, temporary detention, [and] cursory search.”
Such a broad reading, however, is inconsistent with the statute’s legislative history, its place in the statutory scheme, and judicially established rules of statutory interpretation. In effect, it allows an end run around the procedures and guard rails that Congress has created to govern domestic deployment of the military. Section 502 was originally enacted as part of the codification of Title 32 in 1956, but subsection (f) and the “other duty” language within it were not added until 1964. On paper, the addition of subsection (f) opened the door for National Guard personnel to perform operational missions under Title 32. However, the legislative history of its adoption suggests that it was intended principally to provide funding and authorization for training-related duties beyond the specific exercises cited in the law. The provision was not used for operational missions until 1989, when Congress added specific statutory authority for one kind of § 502(f) “other duty” in particular: drug interdiction missions under 32 U.S.C. § 112.
Another type of operational mission was added in 2004, when, amid the broadening war on terror, Congress added an entirely new chapter to Title 32—Chapter 9—that authorized National Guard personnel operating under state control to be federally funded under § 502(f) while engaging in certain “homeland defense activities.” But state governors struggled to obtain Department of Defense approval for these missions because of the requirement that missions under Chapter 9 respond to a “threat … against the United States” as a whole. In 2005, Hurricane Katrina devastated the Gulf Coast and exposed disastrous shortcomings in the federal government’s ability to respond to natural disasters. The next year, Congress responded to both of these problems by further expanding the potential nontraining uses of § 502(f), this time by amending the provision itself rather than adding any new sections to Title 32.
The newly added subsection (f)(2)(A), which authorizes National Guard support of federal operations or missions “at the request of the President or Secretary of Defense,” was undoubtedly meant to simplify and ease the process by which National Guard forces could perform domestic operational missions under Title 32. However, although the legislative history for the 2006 amendment does not clearly identify the exact bounds of what Congress intended to authorize, it does suggest that Congress was concerned primarily with facilitating homeland defense activities already authorized elsewhere in Title 32 as well as the National Guard’s traditional role in responding to natural disasters like Katrina.
Indeed, the Report of the House Armed Services Committee on the 2006 amendment hardly mentions the new authority it would create for governors to use their Guard forces to support missions requested by the president or secretary of defense, and instead focuses on discussing how other parts of the same amendment would allow “reserve component personnel performing active guard and reserve duty, as well as military technicians (dual status), to … train active duty members of the armed forces” and the limitations on this new authority. In short, it is highly unlikely that Congress intended to revolutionize the landscape of domestic deployment in the United States by giving the president an easy alternative to the Insurrection Act.
A narrower interpretation of Section 502(f) is also consistent with established principles of statutory interpretation. The Supreme Court explained in Whitman v. American Trucking that “Congress … does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.” Similarly, when the Court held in FDA v. Brown & Williamson that the Food and Drug Administration’s authority does not include power to regulate tobacco products as drugs, it said that “Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion.” In short, the Court generally assumes that Congress will speak to major issues directly.
There is no doubt that Congress meant for the 2006 amendments to § 502(f) to widen the scope of the activities it authorizes. Even so, it seems extraordinarily unlikely that Congress would have buried within a section of the U.S. Code that is primarily concerned with National Guard training requirements an open-ended authorization for American military forces to participate in domestic law enforcement activities at the behest of the president, notwithstanding the Posse Comitatus Act and without reliance on the Insurrection Act. Indeed, that would be the very definition of “hiding an elephant in a mousehole.”
State Sovereignty and Deployment of Unfederalized National Guard Personnel Into a Nonconsenting State
If the District of Columbia were a state, then the deployment of out-of-state National Guard troops into the District over its chief executive’s objections in June 2020 would have violated the Constitution. U.S. states are sovereign entities, although their sovereignty is limited and made subordinate to the federal government under the Constitution. Like foreign sovereigns, their sovereignty is territorially defined. As the Supreme Court explained on multiple occasions in the early republic, “the jurisdiction of a state is coextensive with its territory, coextensive with its legislative power.”
It is a function of the states’ co-equal and territorially limited sovereignty that one state’s courts cannot reach into another and adjudicate the affairs of people living there, unless those individuals have sufficient “minimum contacts” with the forum state. For the same reason, it cannot be the case that a state, solely under its own authority, may deploy its National Guard forces into another state without that state’s permission. Simply put, U.S. states may not invade one another.
The deployment of one state’s National Guard into another state in State Active Duty status without the receiving state’s consent would therefore be unlawful. Were this not the rule—if one state could freely reach into another and exercise governmental power there—then any kind of conflict between the states would have the potential to lead to a physical confrontation between their law enforcement agencies and National Guard forces, with potentially disastrous consequences.
The crucial remaining question is whether placing Guard forces in Title 32 status obviates this sovereignty barrier, making deployment into a nonconsenting state permissible. It does not.
The principal difference between State Active Duty status and Title 32 status is that the latter allows National Guard forces to operate at federal expense and to perform certain federal missions, all while remaining under state command and control. State command and control has legal as well as practical consequences. To start, it means that Guard personnel in Title 32 status have not been federalized. The federal courts have made clear that whether Guard personnel have been federalized depends solely on whether they are under state or federal command and control.
Further consequences of state control are apparent within Title 32 itself. As noted above, § 502(f)(2)(A) makes clear that governors are free to reject a president’s request for National Guard assistance. Likewise, 32 U.S.C. § 328 provides that for any § 502(f) deployment, the governor—not the president—issues the orders to mobilize and deploy. Barr’s letter to Bowser likewise acknowledges that § 502(f) “authorizes States to send forces” to support missions requested by the president.
All of these factors point to the same conclusion: Although a deployment under § 502(f)(2)(A) is federally requested, defined, and funded, state authority is being exercised as a legal matter.
This conclusion is consistent with what the Supreme Court has said about what it means for members of the National Guard to be “federalized.” In Perpich v. Department of Defense, the Court explained that when Guard troops are federalized, they temporarily become part of the active-duty federal military. When not federalized, however, they remain state officers. The Perpich Court made clear that, when on active duty, a member of the Guard must be either a part of the federal military or a state officer—they can never be both at the same time. Since Guard personnel in Title 32 status have not been federalized, they are not part of the federal military and must instead be state officers operating under state authority.
For the purposes of the co-equal and territorially limited sovereignty of the states, then, there is no difference between State Active Duty status and Title 32 status. In both cases, National Guard personnel are state officers exercising state authority. That means they cannot operate in another state without its consent, no matter who requested their presence or who is paying them.
Conclusion
Congress should amend § 502(f) to narrow and clarify its scope. In the meantime, though, the law is not a blank check allowing the president to use military forces anywhere in the country and for any purpose so long as they can find one willing governor. Congress no doubt intended the creation of § 502(f)(2)(A) to make domestic deployment of the National Guard easier rather than harder, but it is highly unlikely that lawmakers meant to blow a gaping hole in the complex web of laws that govern the military’s domestic activities. Rather, § 502(f)(2)(A) was likely intended to facilitate missions that were already authorized by other statutes as well as traditional Guard functions like disaster relief.
Moreover, regardless of Congress’s intent, deployments of the National Guard in Title 32 status must in all cases respect the co-equal and territorially limited sovereignty of the states. As a constitutional matter, the deployment of unfederalized Guard personnel into a nonconsenting state is never permissible. If the president wishes to unilaterally deploy military forces into a nonconsenting state, then they must do so through the statutory mechanism that Congress has provided for this purpose since 1792: the Insurrection Act.
In all cases and regardless of the statutory device used, domestic deployment of the military should be treated as an option of last resort. There is a tradition in American law and political thought, with roots that can be traced to medieval England, that opposes any kind of military interference in civilian affairs outside of emergencies. This tradition recognizes the fundamental danger of turning an army inward to face its own country’s citizens. As the Eighth Circuit explained in Bissonette v. Haig:
“The use of military forces to seize civilians can expose civilian government to the threat of military rule and the suspension of constitutional liberties. On a lesser scale, military enforcement of the civil law leaves the protection of vital Fourth and Fifth Amendment rights in the hands of persons who are not trained to uphold these rights. It may also chill the exercise of fundamental rights, such as the rights to speak freely and to vote, and create the atmosphere of fear and hostility which exists in territories occupied by enemy forces.”
Domestic deployment presents risks for the military itself, too. While sometimes necessary, all domestic military operations distract and draw resources away from the military’s core national security responsibilities. Domestic law enforcement operations, in particular, are also broadly unpopular among military personnel, who did not enlist in the armed services to police their fellow citizens—a fact that is all the more significant as the military continues to struggle through a recruitment and retention crisis.
The National Guard is not immune to these risks. While the Guard certainly continues to fulfill its traditional role of providing local support in times of crisis, over the past three decades it has also been integrated into the broader United States armed forces. Today’s National Guard is a professional army and an essential piece of the Department of Defense’s “Total Force.” To be sure, Guard personnel are more likely to be trained in law enforcement than their active-duty counterparts, but many Guard units are frontline combat units trained and equipped to fight overseas, with comparatively little experience or training in responding to civil unrest.
Accordingly, when considering whether to use any part of the military domestically, leaders should not merely ask whether a deployment would be constitutional and authorized by statute. They should also ask whether it would be an appropriate use of limited military resources and whether it is consistent with the foundational American belief that domestic civilian affairs should be managed by domestic civilian authorities whenever possible.
