Oregon’s Governor Kate Brown has said that she will refuse to send Oregon National Guard troops to the Mexican border if asked to do so by the President.
Can she legally do this?
She can refuse the President’s request to mobilize the Oregon National Guard. The governor is the commander-in-chief of the state national guard most of the time.
However, the POTUS can “federalize” the guard - that is, call it up for federal duty - under the 1952 Armed Forces Reserve Act, and at that point they come under the POTUS’ control, not the governor’s.
This happened a few times during the Civil Rights Era, when Southern governors refused to mobilize their NG units to protect protestors, marchers, etc., and Kennedy federalized them and sent them in under his own orders.
Interesting article from a year ago about this:
Oooh, also a previous thread:
For national emergencies, the President has the right to mobilize National Guard forces but it looks like in the below NBC article, he is using Title 32 authority (state retains control of NG troops) as opposed to Title 10, where the federal government takes control. If they stay under Title 32, then the states eat the cost of deployment as opposed to the Feds. I would argue that not having a giant, expensive boondoggle wall is not a federal emergency.
Yes, with a caveat. The National Guard is under the control of the state EXCEPT in time of war or insurrection. In 2007 though, the Feds added language to the insurrection act that includes natural disasters and gives more carte blanche power to the President. Prior to 2007, the governors had a lot more power over their guardsmen, but now the feds are taking more. To be honest, if she refused to release them, I think it would result in a court challenge and I think it’s possible that she’d win. If Trump wanted to ship them to Syria though, I think she’d lose. I think the Feds would want to portray the border situation as some sort of organized law-breaking which amounts to insurrection or invasion and thus under their control, but who knows?
Actually, the Federal government pays for Title 32 deployments, even though the Guard would remain under control of the governors. It is state active duty in which the state pays for mobilization costs, and the governor of course retains control.
The main difference is that Title 32 missions need to meet a Federally authorized purpose, for example, required training, counter-narcotics support missions, and a growing list of other stuff. State active duty missions would tend to be for all other miscellaneous stuff that isn’t subject to a Federal law authorization. Responding to a riot would be one example.
This article has a decent discussion of the Bush and Obama Administration’s deployments of National Guard troops to the border to assist CBP and explains that they stayed in Title 32 status during the deployment. I have to quibble with your post a little because, at least according to this Congressional Research Service report, suggests that a National Guard unit in Title 32 status stays under state command, but is federally funded (as opposed to Title 10 (fully federal) or “state active duty” (fully state)).
To address the OP, as the article explains, Bush and Obama both used their authority under 32 U.S.C. § 502(f), which provides that “a member of the National Guard may . . . be ordered to perform training or other duty” including “Support of operations or missions undertaken by the member’s unit at the request of the President or Secretary of Defense.”
Can a governor resist federal authority under Section 502(f)? I don’t think so. I think that the federal authority would be supreme.
Thus constituting what can be precisely described as “A well regulated militia”
It’s funny…the National Guard used to be the place where you could “get out” of going to war (W Bush, Clinton) but since then, the joke’s on those guys.
They thought they were signing up for paintball and ass grabbing on the weekends and found themselves in Fallujah.
That was by design of Colin Powel and a few others. They wanted to avoid some of the issues in Vietnam by having a guard component that would have to be activated.
Bill Clinton was never in the National Guard.
Moderator Note
Let’s avoid political and professional jabs in General Questions. No warning issued.
Colibri
General Questions Moderator
ETA:Saw mod instruction.
The draft was ended in 1973. People who want to get out of going to war can do it now by simply not joining the armed forces.
Notably State defense force can never be federalized and can only operate in their own state borders but only under half the states have them.
They also sound like a sitcom waiting to happen
By the late 1980s, however, a series of high-profile reports caused several states to shut down or significantly restructure their forces. In 1987, the governor of Utah removed all but 31 officers from its state defense force, the Utah State Guard, after a probe revealed that its ranks were “peppered with neo-Nazis, felons and mental patients.” Meanwhile, in 1990, the Virginia General Assembly launched an investigation and subsequent overhaul of its state’s force after receiving tips that the volunteers were “saving money to buy a tank.”
Who has control over The National Guard?
I DO!
And soon, all the World shall know it, and fear me!
BWA-HA-HA-HAAA!
Sir, have you ever served in an extreme rear area? Well I have!
Lets take a full look at that section of the law:
There’s two types of duty described under paragraph 2. One is training missions and operations “assigned” by applicable service Secretary. There’s no leeway given to Governors over those assignments. The constraints on those missions don’t make that an option for border security. The wording for the other type of mission is quite a bit different. It talks about missions at the request of POTUS or SECDEF. I don’t know of any court cases that constrain a Governor’s ability to deny National Command Authority requests. I’d be surprised if a court would interpret request as constraining a Governor from having a choice on whether they honor that request.
It predated Powell by a decent chunk and the claims of it’s purpose have largely grown after the fact. The design of the Total Force to effectively require the mobilization of Reserve Components for large wars is sometimes referred to as the Abrams Doctrine. That link looks at the debate that has grown up around the AC/RC split. That balance shifted during the cuts and reorganization that happened after Vietnam while GEN Creighton Abrams was the Chief of Staff of the Army. It is a point of debate whether the limitation was by design.
Correct with a caveat. The units can’t be federalized. The individuals can still be drafted into federal forces. SDF membership doesn’t offer special handling under federal law that enables a draft.
As a blanket statement, that’s incorrect. The response to Katrina saw eight SDF’s activated. Some were for hurricane response in their own state. Some assisted efforts of deploying Guardsmen but didn’t leave their state. Some deployed to affected states to assist with the response. There’s no federal constraint preventing use of SDF outside their own state. Some states constrain their SDFs that way. Some states don’t. If a Governor can legally offer their deployment, and the other Governor accepts, they can operate outside their home state.
Post 9-11 can be quite a bit different than the 1980s. Some states suddenly realized that their National Guard could be significantly deployed when needed and started looking at their backup more closely. While it’s very much a state by state issue don’t assume things haven’t changed at all.
As an example, in Michigan, they’d cut their previous force in 1998. It was reconstituted in 2004 as a response to the NG deployment tempo. I even know the current Commander. He was my Brigade Commander in the MI National Guard before his federal retirement. If the Michigan Volunteer Defense Force under COL Ewald fits all the pre-9-11 stereotypes I will dig out my old patrol cap and eat it. Things change.
Also the National Guard since it’s modern inception has been the combat component of the reserve forces. The Reserves are mostly support units while the National Guard has many combat arms units. Infantry, artillery, tanks, all in the National Guard. The perception that the Guard is where you go to hide from war began and ended with Viet Nam. That’s because LBJ made the political decision to not declare the state of emergency that is needed for a large scale mobilization. That was not the case in any conflict before or since Viet Nam.
Your answer in the first paragraph referenced me as the OP, where as I was solely refering to the now Abrams doctrine.
So much for thinking I had everything corrected after a touchpad error mid-post that had pieces scattered. :smack: My apologies.