With All Due Respect, Mr. President, We're Not Going to Follow That Order: How and Why States Decide Which Federal Military Rules Apply to State National Guard Personnel

By Stirling, Dwight; Lovato, Corey | Texas Review of Law & Politics, Fall 2017 | Go to article overview

With All Due Respect, Mr. President, We're Not Going to Follow That Order: How and Why States Decide Which Federal Military Rules Apply to State National Guard Personnel


Stirling, Dwight, Lovato, Corey, Texas Review of Law & Politics


Introduction

When a governor activates state National Guard service members pursuant to a presidential request, a question arises as to how much command authority the president exercises over the activated National Guard personnel. The scenario raises the specter of a conflict of law situation. When Guard personnel are operating in a state status, can the president order them to engage in, or refrain from engaging in, certain conduct? What if the Guard personnel's governor issues contrary instructions? Which orders are legally binding? Because Guard members can serve in two statuses, state and federal, it is essential that all parties understand the role the federal chain of command plays when Guard personnel serve in a state status. The existing legal literature is not helpful in answering the question, a by-product of the sparse scholarly treatment the National Guard has received generally. As knowing which rules and orders are compulsory and which are merely suggestive is critical to the efficient administration of a military organization, this is no trivial matter.

The answer is that when National Guard personnel are serving in their traditional "Title 32" state status, the president has no command authority over them whatsoever. Neither he nor federal military officials can direct or enjoin their behavior in any way. Under the Constitution's carefully crafted balance between federal and state sovereignty, the president's power over state service members is strictly normative, limited to setting administrative standards, providing equipment, and establishing operational criterion. Neither the president nor any official in the federal military establishment possesses legal authority to dictate the behavior of state National Guard personnel.

State officials possess exclusive and plenary power to govern the Guard forces assigned to them. This power is exercised by state governors, the commanders-in-chief of state Guard troops. State legislatures, for their part, are authorized to make rules for their assigned Guard personnel. The rule-making power is shared with the president, Congress, and federal military officials. Should a state rule and federal rule conflict, state officials determine which one takes precedence. The power to govern a military organization subsumes the power to decide which rules apply to that military organization. Accordingly, federally promulgated rules and orders-even presidential orders-only apply to state National Guard personnel if state officials say they do. If not, the federal rules and orders can be ignored without legal consequence.

State officials' legal authority over their National Guard personnel flows from Article I of the United States Constitution.1 Known as the Second Militia Clause, it provides that governance and training of Guard troops, known historically as "the militia," is a state function.2 "The power of the States over the militia is not taken away," the Supreme Court said in 1820.3 "[I]t existed in them before the establishment of the constitution, and there being no negative clause prohibiting its exercise by them, it still resides in the States . . . ."4 Controlled by state officials, Guard personnel are considered "employees of the States" by the Supreme Court.5

This Article explores the legal authority states exercise over their assigned Guard personnel. Part I explains the powersharing arrangement outlined in the Constitutional framework, a set-up where both state and federal jurisdictions possess certain bundles of power. Part II proceeds to describe the structure of the National Guard, a design which faithfully reflects the nuanced power-sharing arrangement. Part III examines the concept of "federal recognition" of state Guard personnel, a certification process enabling states to receive federal funding for training and operations. Lacking command authority over state forces, withdrawal of federal recognition-and the federal monies stemming from it-is the primary mode of influence federal military officials have over state military policies. …

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