The Maryland National Guard was recently activated to quell the riot-induced violence in Baltimore. The National Guard’s roles, responsibilities, powers, and chain of command differ significantly from other military components in that they provide military services to support overwhelmed civil authorities under the command and control of the state governor.
The U.S. National Guard is the oldest component of the military and is a descendant of the colonial militias. Deriving their powers from the U.S. Constitution’s Second Amendment, the Guard plays a diverse and vital role in both domestic and foreign operations. Domestically, the Guard protects the United States from foreign invaders, protects life and property, prepares for and responds to domestic emergencies, secures the homeland, protects the borders, quells violence, and conducts law enforcement operations. On foreign soil, the Guard conducts peacekeeping missions and engages in combat as well as combat service and support. The Guard has proved to be a valuable force to governments of all levels.
A Dual Purpose Force
However, the National Guard is different from its federal military counterparts because: (a) it has a unique dual mission with both state and federal responsibilities; and (b) is both a state and federal asset. The United States was created around the concept of federalism, which embraces the principles of shared governance and balance of power between the sovereign states and the supreme national government. Due to distinctive constitutional, legal, organizational, and historical reasons, the Guard operates as a dual-purpose force within the federal government system: separate state and federal missions; and separate and independent command and control authorities.
As a result, the National Guard oath requires Guardsmen to pledge allegiance to both state and federal governments. This simultaneous dual enlistment was implemented in 1933 to avoid the limitations of the militia clause and to broaden the powers of Congress; it represents part of the transition from the original militia to the modern National Guard. The National Guard Mobilization Act of 1933 made the National Guard of the United States a component of the Army at all times, which could be ordered into active federal service by the president whenever Congress declared a national emergency.
Additionally, the Act defined the difference between the “National Guard of the United States,” in a federally mobilized status, and the “National Guard of the several States,” in a state active duty status. In part, the oath states that Guardsmen will “support and defend the Constitution of the United States and the State of ___ [emphasis added] against all enemies, foreign and domestic ... [and to] obey the orders of the President of the United States and the Governor of ___ [emphasis added].”
Command & Control
Normally, National Guard units are assets of their respective states, under the command and control of state governors and adjutant generals, commonly referred to as the “TAG.” In this capacity, the Guard units perform a variety of state missions as determined by the governors. However, in certain cases, the Guard may be federalized, usually for expeditionary missions or training. While federalized, the Guard is controlled by the combatant commander of the respective theater, and ultimately by the U.S. president.
The Guard should not be confused with the Reserves, which are the reserve component of the regular, federal military forces and exist in each of the four branches of service. Similar to the Reserves, most of the approximately 350,000 in the Army National Guard and 105,000 in the Air National Guard are citizen-soldiers and serve in a part-time capability and often train one weekend a month and two weeks a year. Unlike the Reserves, the Guard only consists of the Air National Guard and the Army National Guard. There are 54 individual National Guard organizations: one for each state in the Union plus the Commonwealth of Puerto Rico, Guam, the U.S. Virgin Islands, and the District of Columbia. Each state’s Guard is commanded by its state’s adjutant general. TAGs primarily report to the governors, not to any federal agency – not even the Department of Defense – except when federalized. See Figure 1 for a depiction of the integrated command structure.
Most adjutant generals are appointed by state governors, with the exception of: (a) Vermont, where the TAG is elected by state legislature; (b) South Carolina, where the TAG is elected by the citizens; and (c) Washington, D.C., where the senior Guard military officer is appointed by the president and called the “commanding general.” In all states, adjutant generals have primary responsibility over the Guard but, in many states, the TAG also serves as the director of emergency management and/or the director of homeland security.
Although TAGs are mostly autonomous and independent from the federal government in their reporting structure, there is a federal headquarters component of the Guard. The National Guard Bureau (NGB) is a joint Army-Air Force command, which is part of the Department of Defense. The NGB allocates missions and resources for the federal missions of the Guard and conducts all the Guard’s administrative matters.
As the senior uniformed National Guard officer, the chief of the NGB holds the rank of general, is appointed by the president, and is responsible for: developing all policies; advising the secretary of defense, through the chairman of the Joint Chiefs of Staff, on all matters involving nonfederalized National Guard forces; and advising the secretaries of the Army and Air Force on all National Guard matters. Figure 1 illustrates the National Guard chain of command in context to other Department of Defense organizations.
Calling in the Guard
There are three ways that the National Guard can be called into active service: (a) through state active duty; (b) Title 32 authority; or (c) Title 10 authority. Except when state forces are federalized, the Guard remains an asset of its respective state or territory under the control of the governor. The one exception is Washington, D.C., which is a federal asset under the control of the president at all times. The governor can call his or her state Guard into action – through state active duty or Title 32 – during local or state emergencies, such as natural or manmade disasters or civil disturbances, often when civil authorities are overwhelmed or need specialized support. There are two primary ways – state active duty and Title 32 – a governor can call upon the National Guard for service.
“State active duty” refers to when the governor activates members of the state’s Guard to a full-time status, usually to support civil authorities in time of crisis, disaster, or severe civil disturbance. These activated Guardsmen remain under the command and control of the governor and TAG. Likewise, they are paid by the state in accordance with state law. The Guard, under state control, has full law enforcement powers – including investigation, arrest, and incarceration, when authorized by the governor. This was the activation method for the Baltimore riots. If the National Guard is activated into federal service, they may lose their law enforcement powers as they become subject to the Posse Comitatus Act, which will be explored in more detail below.
Another possible method of activation of the National Guard is Title 32 activation. U.S. Code, Title 32, section 502(f) states that “a member of the National Guard may . . . without his consent, but with the pay and allowances provided by law . . . be ordered to perform training or other duty in addition to [inactive duty for training or annual training].” Title 32 activation allows the governor to retain control of his or her Guardsmen, like state active duty, but it authorizes federal pay, allowances, and entitlement to certain legal protections. Title 32 activation is requested by the governor and requires presidential approval through declaration of a national emergency.
Lastly, in certain cases the National Guard may be also activated and federalized by Title 10 authority. Article I, section 8 of the U.S. Constitution allows the federal government to call the Guard into federal service in order to execute the laws of the Union, to suppress insurrection, and to repel invasion. Under U.S. Code, Title 10, section 12304, the president can call up to 200,000 reserve troops, including the National Guard, into federal service in order to “augment active forces for any operational mission.” While federalized, the combatant commanders of their respective theatres – and ultimately the president – control the National Guard units. Serving under the president in a federal status, these forces may perform domestic or expeditionary missions. However, even when not federalized the National Guard still has a federal mission to maintain properly trained and equipped units, available for prompt mobilization. Table 1 summarizes the three National Guard activation methods.
Title 10 & Posse Comitatus
In a purely federal status under Title 10, National Guard members are stripped from their domestic policing powers and are subject to the Posse Comitatus Act, which was passed during the Reconstruction Era to prevent the Army from engaging in civil law enforcement activities. Specifically, its intent was to end the use of the Army to police elections in former Confederate states. One of the few exceptions to the restrictions of the Posse Comitatus Act is the invocation of the rarely used Insurrection Act of 1807, which empowers the president to suspend Posse Comitatus and employ federal forces, including the National Guard, within the United States to “suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy.”
In summary, the National Guard has a unique dual mission that provides military services in times of crisis to support overwhelmed civil authorities. The Guard can be activated in three primary ways depending on the nature and location of the deployment. When activated for civil disturbances, such as the riots in Baltimore, the Guard is usually activated on state active duty. In this capacity, the Guard falls under the command and control of the state governor and TAG, and retains law enforcement powers. As such, the National Guard’s presence is not a representation of federal military intervention, nor is it the militarization of civil law enforcement.