Two missions, one key role: National Guard

Is it the uniform? There’s just something about watching National Guardsmen doing the Macarena. You can’t help but smile.

It is the uniform — juxtaposed against ongoing protests and rising tensions. On that evening in Atlanta captured on video gone viral, music and dancing worked better to defuse and pacify than rubber bullets.

If you’re confused about the exact role of the National Guard (beyond leading a quirky dance), you’re not alone. The community “weekend warriors” of the Army National Guard have a unique dual mission, with both state and federal roles. Trying to break it down is difficult enough for presidents and law professors, let alone mere writers.

Caveat aside, here we go:

Two masters. Composed primarily of part-time (with some full-time) service members, the Army National Guard comprises a significant portion of active-duty military and responds to domestic emergencies, overseas combat missions, counterdrug efforts, reconstruction missions and much more.

As provided in the U.S. Constitution, each state has its own National Guard. The governor commands them and can call them into action during local or statewide emergencies, such as storms, fires, earthquakes or civil disturbances.

State active duty. Their presence at Atlanta and other protests exemplify the Guard’s “state active duty.” Such missions are controlled by the governor, at state cost.

Federalizing. The president can also activate the National Guard in certain circumstances, such as when peace-keeping units were deployed to the Middle East, and to help after Hurricane Katrina (when multiple authorizations for Guard assistance were used) — all at federal cost.

When “federalized” this way under Title 10 of U.S. Code, Guard units answer to the president and secretary of defense, commanded by the combatant commander of area where they’re operating, according to the National Guard website.

Sometimes that’s been closer to home, such as when Bush and Obama each called the Guard to aid Border Patrol at the U.S.-Mexico border. Since the Posse Comitatus Act was enacted in 1878 after the Civil War, the National Guard and other U.S. military units have been used sometimes for domestic law enforcement, within limits.

At times, the federalized Guard situation can get uncomfortable. Federal commanders don’t always understand the communities and state situations they’ve been ordered to command. Disagreements can arise. Guard personnel sometimes report feeling conflicted.

Limits. Presidents can’t just call up the military for any domestic situation. That’s where it gets murkier, and not just for us civilians.

George Mason University law professor and U.S. Army veteran Tim MacArthur explains that a military performing a federal function like that can’t perform “civil law enforcement” functions. No search and seizure. No arrests.

They can, however, surveil, provide equipment and training, and keep the peace in a supportive role — anything that’s “passive.”

Apparently they can also do the Macarena when it serves a purpose.

Governors can just say no. Even when a president orders the Guard to do something, governors, as the commanders in chief of each state’s Guard, can refuse to allow it. Yes, the president can declare a national emergency to sort of override that, but again — only in a “passive” role. The Posse Comitatus Act still limits the National Guard’s ability to stand in for law enforcement.

Title 32 — the hybrid approach. According to the Congressional Research Service, the third way to mobilize the Guard is under U.S. Code Title 32, which provides federal funding to activate Guard units during a national emergency but leaves them under a governor’s jurisdiction.

Title 32 can be used when (1) the U.S. or its territory is in danger of invasion by a foreign nation; (2) there’s a rebellion against U.S. authority, or (3) the president is unable to execute the laws of the United States. In these cases, orders are issued through the state’s governor.

The Title 32 method has been used to mobilize more than 30,000 National Guard troops during the COVID-19 pandemic.

At first this approach was very sticky from a “unity of command” perspective — thorny especially when different military or law enforcement units occupy the same space. In 2010 a new position called the dual-status commander, or DSC, was created who had dual authority to command state (reporting to the governor) and federal (reporting to the secretary of defense) forces.

Most of the time, however, the National Guard remains under the control of individual states with the governor as commander in chief, and often plays a critical role in both war and peacetime emergency situations — “passive” by definition only.

For more information see Nationalguard.mil or search “national guard” at crsreports.congress.gov.

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Sholeh Patrick is a columnist for the Hagadone News Network. Contact her at Sholeh@cdapress.com.