Posted on Apr 7, 2018
What do you think of the recent POTUS decision to activate National Guard units for border duty in the south-west?
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Under law he would have to federalize the troops. Can the state governors refuse to provide the troops?
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JAG
JAG
Posted >1 y ago
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POTUS doesn't call up the Guard, Governors do, except in case of "National Emergency", which this isn't. What we have here is a mission statement by POTUS and request for Governors to chip in. DoD is picking up the tab. That's why you see Texas and Arizona stepping up and Cali and Oregon not interested. Interesting thing is the call up by LBJ on the school segregation mess was likely illegal as no way the Governor would go for it. The more recent ones by Obama and Bush were for humanitarian or support without arrest authority. Again, mission, money, and a request to Governors.
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Imagine they think they can- and legally they could be right, but as Governor, would you want your NG units to be a the bottom of the Federal Budget bucket for the next 3 yrs?
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I think it would depend on whether he can actually call them up. Doing a little research I read from an article titled, "Why President Trump Can't Directly Order National Guard Troops To U.S.-Mexico Border". It said that the details matter because the president can't just call up military forces on a whim to do domestic law enforcement. It's barred by a federal law dating back to the period after the Civil War, a law known as posse comitatus. I read where the Oregon Governor said she would refuse the order. I also read that it becomes a Title 32 verse Title 10 matter. It will be interesting to see how this plays out.
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MSG Louis Alexander
Federal Law
18 U.S.C. ss 1385. Use of Army and Air Force A posse comitatus Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years or both.
10 U.S.C. ss 375. Restriction on direct participation by military personnel The Secretary of Defense shall prescribe such regulations as my be necessary to ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel) under this chapter does not include or permit direct participation by a member of the Army, Navy, Air force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.
Governors have the authority to call out National Guard Troops
18 U.S.C. ss 1385. Use of Army and Air Force A posse comitatus Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years or both.
10 U.S.C. ss 375. Restriction on direct participation by military personnel The Secretary of Defense shall prescribe such regulations as my be necessary to ensure that any activity (including the provision of any equipment or facility or the assignment or detail of any personnel) under this chapter does not include or permit direct participation by a member of the Army, Navy, Air force, or Marine Corps in a search, seizure, arrest, or other similar activity unless participation in such activity by such member is otherwise authorized by law.
Governors have the authority to call out National Guard Troops
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COL (Join to see)
Presidents have the authority to Federalize them. Logistics support, engineer support, aerial surveillance and observation are not violations of the Posse Comitatus Act.
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CPT Lawrence Cable
The difference is that under Title 32 orders, the National Guard are exempt from the restraints of Posse Comitatus and can be used as law enforcement. Although officially it says that the President may "request" that the Governors activate units under Title 32 orders and must maintain a dual command structure, changes in the law since 9/11 seem to give the Director of Homeland Security the power to activate units under Title 32 as long as the duty is inside American territory. Even the dual command structure would not mean that the governor of Oregon would be in the loop, the rules are that the command structure from the state the unit is deployed into provides the chain of command, so in this case, Texas and Arizona.
It's important to recognize that most of the funding for the National Guard is still Federal, so any Governor that gets too pushy could easily find that he lost units/funding. States are often in serious competition for units that allow them to have Brigade or higher headquarters in the state, lots of homes of upper rank NCO's and Officers. Loss of a Brigade or BCT, or Division can cost a state a lot.
It's important to recognize that most of the funding for the National Guard is still Federal, so any Governor that gets too pushy could easily find that he lost units/funding. States are often in serious competition for units that allow them to have Brigade or higher headquarters in the state, lots of homes of upper rank NCO's and Officers. Loss of a Brigade or BCT, or Division can cost a state a lot.
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