Lawfare Daily: Can State Laws Protect Against Misuse of the National Guard?

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Soldiers are trained to fight and destroy an enemy. They are not trained to de-escalate conflict in a way that respects constitutional rights. So using them for law enforcement is dangerous, it's dangerous to public safety, it's dangerous to the soldiers themselves.

“For a person who cares about national security, you should be concerned about domestic military operations,”

pulling personnel resources, time and attention away from all of the military's other responsibilities. Today we're talking about the state laws governing the national guard, what they allow, what they prohibit, and what it means for domestic deployments in the United States. So let's begin by setting the scene a little bit. We're here to talk about the national guard, and that's in part because there have been a number of high-profile deployments happening domestically. There's Los Angeles, Chicago, here in DC, but as we've been tracking, at law fair, there are actually quite a few more,

and for folks who are interested, you can look on our website for current deployments of the national guard. All over the country, they're under different legal authorities, and they are deployed for several different purported purposes.

So I want to start at the very highest level before we dig in, and Lauren, I'm going to come to you first.

Just remind everyone, you know, what is the national guard, how are they different from the regular forces, and what is this business about state active duty versus Title 32 versus Title 10 status? When we think of the national guard, they are originally the national guard of their states, right? And that means when they are in state active duty status, they respond to their governors, their commandic control goes to their governor. What missions they do fall under state law, whether that be the Constitution or statute, they can also be federalized under Title 10,

and that is what your active duty military does, and so your active duty military operates under Title 10, but your national guard can as well, and then their commandic control goes through the president.

“And that's what you saw in Los Angeles, that's what you saw try to happen in Portland and in Chicago.”

Now, what makes this tricky is there is this, what we call hybrid status called Title 32. And in that status, they retain the governor as the command structure, but they're doing a federal mission. They're also getting federal funding for this mission. And so in that status, we call it a hybrid status, because they technically still respond to their governor, but they're doing a federal mission. That is what you're seeing happen in Washington, DC, that's what you're seeing in Tennessee, and that's what you're seeing in Louisiana right now.

Okay, so that's a really helpful framework, and today we are going to be focusing on two of those three statuses. The state active duty, which is the regular militias, you were describing Lauren and Title 32, this hybrid status that presents as we will talk about a lot of legal challenges. And this brings me to you, Joseph and Liza, and the work that you all did with colleagues at the Brennan Center, a really peculiar effort to compile state laws regarding the national guard. So as Lauren was describing the sort of default status of the national guard is under state control, makes sense entirely that it would be controlled by state law.

Sure, we actually had the idea for this project several years ago, the Brennan Center has been working on emergency powers since 2016, 2017, and we really see domestic deployment authorities as a type of emergency power. Because in ordinary circumstances, the military isn't deployed domestically. The military gets deployed domestically when there is some kind of crisis, whether it's a natural disaster, or whether there is civil unrest at a level that overwhelms the capacity of civilian law enforcement.

So we really do see this as a form of emergency power, and we initially started out looking at the laws that govern how the president can use the federal armed forces.

But the reality is that most of the time the military is deployed domestically, it's being deployed, it's we're talking about the national guard, being deployed by governors.

That is by far the bulk of domestic deployments of the military, and when that happens is happening under state law, and it's not going to happen. So we wanted to turn to that, we just ended up there were so many things to focus on, even just within the presidents use of the military, that sort of went on the back burner for a while. Last year when we started seeing these deployments of the national guard under state command and control in DC, in Memphis, in New Orleans, in completely unprecedented ways under section 502F.

We realized that this really needed to come to the front burner, so we doubled down and produced this resource.

“It was very precious. So I think the 502F is a statute we've talked about quite a bit in other law fair podcasts, but let's just remind people of that statute.”

Joseph, can I turn to you, explain what that is, why it's relevant here and what it has to do with title 32, hybrid status. So as Lauren was setting up a few moments ago, tell us the new status is this middle ground where the national guard is under state command control still, but they're receiving federal funding, federal benefits, all of that stuff. In section 502F is the authorizing statute for title 32 status. It's in its sort of basic form, it's been around for a very long time since if memory serves the maintenance of 502F was conceived as allowed in Congress to put the bill for all of the training requirements that it imposed on the state's national guards, which seems a fair and sensible deal.

“So saying you have to train your national guard in such an such way, with such a frequency, but we're going to pay for it.”

Over time as Congress added the subsection F and the expanding subsection F, the ways in which title could you status can be used to change and moved away from just training missions to include sort of operational duties.

This is in six most importantly, Congress added section 502F to A, which is really what those people are talking about when they say 502F, but 502F to A takes a long time to say.

This allows a governor to deploy his or her national guard to support a federal mission at the request of the president or secretary defense. And that's almost the entirety of what those added stands. There is very little in the text itself to indicate what Congress intended authorize or didn't intend to authorize.

“We do know from the Center's largest sort of history, however, that Congress was not intended, I think, to authorize literally anything that the president could lawfully ask.”

The national guard to do instead the focus was on the guard's traditional sort of traditional function and responding to things like natural disasters and facilitating federal funding for those sorts of missions. And also to facilitate federal funding for other specific national guard functions that are already authorized elsewhere in Title 32. Things like support for counter drug operations that are also authorized by 32 US code section 112. I mean, one of the reasons why this resource is necessary is because the Trump administration has not taken this narrow view of section 502F that we think is is more consistent with congressional intent.

and in Memphis and New Orleans, something that is never properly a military function, and that this started with the first Trump administration.

“So Trump invited governors of 11 states where at least 11 states agreed to send their national guard forces to D.C. to police the protests against the killing of George Floyd.”

And that was unprecedented to use 502F to suppress civil unrest. And then in this administration, obviously, the President Trump has really doubled down on using 502F in partnership with willing governors to involve the military in policing street crime, or at least that's the ostensible purpose.

I live in D.C., the national guard in D.C., they are everywhere in every neighborhood. There's almost 5,000 national guard forces in D.C. right now. They're pretty much just standing there.

Well, they did by lemonade from my kids lemonade stand to this weekend.

“That only cost the taxpayer about a million dollars that day.”

So, but you're kicking a fuck out of it, so that's good. But, and I don't mean to say that because they're doing nothing, it's somehow not problematic to have them here.

I mean, and they're not doing nothing, that's overstanding it. They are doing some things that are concerning.

But if nothing else, it is a show of military force on the streets of D.C. And there is a reason for that. There's a reason why the President wants people in the city to see the military everywhere they go. This is an attempt among other things to normalize the use of the military as a kind of domestic police force, even though there's really nothing for them to do here in D.C. One of the things that is really significant about 502F and makes it a useful tool for any executive that should wish to use powers expansively for domestic use of the military is that because the national guard

are still in a state command and control situation, the Posse Comitatis Act, which is of course the legislation that we are all familiar with at this point, that restricts the use of military force for law enforcement purposes. By its own terms does not apply that statute applies to federal officials, not to state officials, and while entitled to 32 status, national guard are not federalized, that only happens under Title 10. Lauren, I want to turn to you to just talk a little bit more about what it means, perhaps what it is supposed to mean versus what it is looking like,

to be under command and control of a state governor and yet pursuing a federal mission. I mean, how does that work? It's we think in a layman sense think of command and control as someone who is, you know, there is a chain of command where someone is aware of what's going on on the ground and is issuing orders accordingly, but that seems like what's not happening if there is a federal authority that is running operations. Yeah, so the first thing I'll say is that it really varies based on the circumstance, but the original concept behind it was basically that you were getting federal funding to do a mission that we thought, you know,

the national guard should be doing, for example, some of the natural disaster relief type stuff. And so the funding was coming in federally, but all of the guidance and oversight on what you were doing where and how and the control was happening at the state level.

“For some of the other missions, I think you know, Joseph mentioned the counter drug mission or, you know, there's also a homeland defense mission entitled 32 those types of things.”

You might sometimes see like a partnership between active duty and national guard. You might even have like a dual status commander that oversees both. The idea would be that like the structures are separate, but what I will say, you know, people throughout the phrase command and control, right? Like there's actually various different pieces of command and control there. And so what we're seeing and what's coming up and like the DC context is, you know, administrative control, which is like, you know, the paperwork type administrative side of the house.

You have tactical control and then operational control. You know, tactical. So that's like, you know, the people on the ground while you're conducting a mission, operational is like, this is how we're doing it. This is how we're structuring it. Here's our priorities.

But both tactical and operational control for the DC deployment is going through the DC national guard and that federal chain.

“And so you have, you know, basically DC national guard and that joint task force and federal authorities saying, National guards, this is how we're going to use you.”

This is going to be your missions. Here is where you're going to go. Here are the rules that you're going to follow. Here's what you're going to do with, you know, if something goes wrong, here's the steps. And so they're at, you know, a very strong control in a way that you wouldn't think when you hear, oh, command control retain, you know, is retained by the governor. And on the ground, it actually looks very different.

And that is not necessarily unique to DC, although DC is unique and that the president is always in command and control of the national guard even when it hasn't been technically federalized.

And so other states when they send their national guard forces to DC, they are coordinating with the DC national guard and that means that they're basically reporting up through a federal chain of command. And other states to the extent that a deployment of the national guard in title 32 status might be part of a joint task force operation that includes federal law enforcement, for example, in in the best case scenario under title 32 50 to F guard forces might be acting. Not under sort of the tactical command and control of the federal government sort of operationally, the mission is being defined by.

And so national guard forces are to some degree acting at the direction of the federal government, the president or secretary of defense.

“And that's why it's so concerning that the Pasi Kamatatus Act does not apply and instead guard forces are any constraints on their activities would have to come from state law.”

And as our project as our companion shows in general to generalize some states are different, but the there are fewer limitations on the use of national guard for for law enforcement purposes under state law than under federal law. I want to turn to that now, I think, you know, we've set up the tension that I think exists between, you know, as learned was describing in a realistic on the ground sort of way. A lot of the rules of engagement for lack of a better term that the national guard are being presented with while on a federal mission under title 32 are coming from a federal chain of command.

But they're still operating under state law. And that is, as you say, Liza, where this companion becomes very useful because if there is not a Pasi Kamatatus Act, for example, or there are not other sorts of restrictions at the federal level. Or if, as we're seeing now, the federal authorities are interpreting certain statutes extremely broadly to allow more than critics might think is reasonable under the statute. The only other mechanism for sort of serving as a counterweight would be these state laws.

So let's talk about what you guys found in this report. You've sort of previewed that there are fewer restrictions than one might think.

“But talk about first, what sorts of restrictions were you looking for, what were the sort of categories of state laws that you were thinking about in compiling this report?”

Joseph, can I come to you on that? Yeah, absolutely. One thing this companion doesn't do is capture every single state law that mentions the national guard, because that would just be sort of overwhelming and not a super useful resource. So, you know, we don't most states have either a sort of copy of or modified copy of the uniform code of military justice and their state laws. We haven't included those. We haven't included laws related to retirement and benefits. As you teed up, we're focused on laws that relate to how the guard can be used and we centered our inquiry on a few things.

One, how does the state or territory law address basically when we're in why the governor can deploy the guard or put more simply deployment criteria?

The second thing and then I would sort of go through the more detail is the law enforcement powers. What law enforcement powers do the guard have when they're deployed and what restrictions if any are on those. The second thing that's important about state defense forces, we focused on these points because we think they're really the key ones. The first one being probably the most important overall is does state law articulate, you know, a set of specific circumstances, when the governor can deploy the national guard or does it instead leave that question up to the governor's discretion.

Law enforcement powers was probably the most challenging thing to code, partly because in a kind of running theme from this project.

“The law is often quite ambiguous and vague. All states at least imply some kind of authority to use the national guard for law enforcement.”

And there's a relatively few states clearly articulate the boundaries of of that power and a no state retardatory has an equivalent to the posthum talismar. A subsidiary question when we're talking about law enforcement powers is whether members of the national guard are considered peace officers under state law. Peace officers are being a term for someone who's kind of a general law enforcement authority to, you know, do things like make arrests. And here there was a lot of variety. Some states have pretty strict rules about what kind of national guardsmen can be.

Peace officers say maybe only qualified military police MPs can be peace officers. Others to use to examples Missouri and Arkansas make every member of the national guard of peace officers by default.

“Whenever they're on duty, regardless of whether that national guardsmen has any training related to law enforcement.”

So there's a sort of huge variety there as well on the question to marshal law. Marshal law has no established definition in American law. But the term generally refers to a power that in an emergency allows the military to push aside and supplant civilian authorities and to exercise jurisdiction directly over the civilian population. That kind of power is very difficult to reconcile with United States Constitution. The Constitution is, you know, the premise on the idea of civilian control of the military. It is premised on the idea of their being a set of right to guarantee is that are invaluable. That said, the Supreme Court has in a set of now very old cases recognized a state power to declare marshal law if doing so is authorized by a state law.

It should emphasize that those cases are very old. I don't think it's entirely clear that they're still good law, especially looking with a sort of modern eye at the Constitution and how we understand it now. And there was a period of time in American history between roughly the start of the Civil War and the end of World War II, where it was not uncommon for state governors to declare marshal law in that roughly 80 year period. No state governor has declared marshal laws since the governor of Maryland did in 1963, but many states still have laws in the books that authorized the governor to declare marshal law.

So that was another thing we wanted to capture. And then this final area of focus was state defense forces. State defense forces are a kind of auxiliary militia that Congress allows the states to maintain under 32 US code section 109C. They cannot be federalized and they also cannot receive any federal funding.

As a consequence of that second fact, they tend to be very small for those states that do maintain them.

And they are often entirely volunteer organizations. Volunteer not in the sense of you sign up for it, but in the sense of you don't get paid. And for a number of state defense forces, you actually have to pay for your own uniform. But whether a state authorizes them or maintains when it's still significant because they are the only category military force in our country that there's essentially no federal oversight or influence. And, you know, the fact that the states that do maintain them tend to keep them pretty small and sort of don't typically use them for anything nefarious.

“So a choice that's being made in a kind of relative vacuum of wall that I think makes them still significant to pay attention to.”

Okay, so I want to zoom out for just a second because I think we've referenced several times this wall that is supposed to exist except with very few exceptions between military and law enforcement. And I want to just give voice to why that matters, right?

More than as a tradition in American life, you know, roots in the Revolutionary War and British control of the colony isn't all of that sure, yes.

But we still care about this. It's 250 years later. So let's just articulate a little bit. What are the concerns with having the military involved in law enforcement? What does that mean?

Including things like immigration enforcement and crime reduction or crime control as you said lies on in DC. What is the objection really to the military undertaking these sorts of activities?

Let me come to you first, but I'd love to hear from all of you on that. Yeah, yeah. So the principle that the military should not be involved in law enforcement goes back hundreds of years in Anglo-American law and thought it is not it actually isn't something that we came up with in this country, but it's something that has been a driving principle since the founding.

“It's the principle that's enshrined in the Pasi-Khamatata sacked, which was passed in 1878, but it's been around for so much longer than that and you can find it. You can find it built into the constitution to some degree.”

Although certainly Congress can authorize the use of the, can authorize the president to call the militia to execute the law in certain circumstances.

But the general principle that, as it, as in normal times, the military should not be used for a law enforcement is really a core value, as well as a legal principle in this country. And the reason for that is because if an army can be turned inward against the people, it can very quickly become an instrument of tyranny and oppression.

“And even if the military isn't being used explicitly for that purpose, it can still chill the exercise of constitutional rights by the people.”

So that's the fundamental concern here and the fundamental role that this separation of military and civilian law enforcement plays is to protect democracy and individual liberty. Now there are also practical reasons for it. Soldiers are trained to fight and destroy an enemy. They are not trained to deescalate conflict in a way that respects constitutional rights. So using them for law enforcement is dangerous. It's dangerous to public safety. It's dangerous to the soldiers themselves. And one point that I want to sort of flag as far as that's concerned is something about the evolution of the national guard.

Because of course the Pasi Kamatata sacked applies to federal armed forces active duty armed forces also the National Guard when they're federalized. But one of the reasons why you maybe, why you don't see a equivalent to the Pasi Kamatata sacked in state law. These laws in the states and their constitution certainly are very old and they predate a kind of evolution in the National Guard. Historically there's been a significant distinction in the mission and culture of the National Guard and the active duty armed forces.

“Our professional soldiers who are ready at a moment's notice to deploy overseas and do battle. National Guard forces historically have been seen as citizen soldiers.”

They have regular jobs during the week and then they train on the weekends. They have always been a reserve force that could be used overseas when necessary. But that was pretty rare.

Look, for example, the Vietnam War fewer than 1% of the troops that were deployed in that war were drawn from the National Guard. Things have changed significantly since the Vietnam War after the end of the draft. The defense department set about to really integrate the National Guard and the reserve forces into the armed forces as a whole and particularly starting in the late 90s intensified that effort. That today, National Guard forces not only train alongside active duty armed forces and have that same training but they increasingly are deploying overseas and in combat roles.

If you look at post 9/11, for example, almost a half of the troops that were deployed in Iraq and Afghanistan were National Guard or reserve forces. And that has really changed the nature of the National Guard. I think over a million National Guard members actually have done these combat tours at this point. And so, to the extent that part of the concern about using the military for law enforcement is because they come into that role with the mindset and training and experience of battle. That is increasingly true for the National Guard as well. So that's another reason why it's important that states may be rethink the limitations on the roles that the National Guard can play domestically.

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“Learn any other thoughts on the distinction between law enforcement and military and why there has been this prohibition or why it's important?”

I think Lysa did a good job of tracing a history back, but just as Americans, the power and size of the military as it exists today. And the idea of using that domestically, in any situation, it's not an extreme circumstance, right? I think it's just one that gives, you know, Americans pause. And so I just, you know, think that we need to be aware of what it means when you can use the military domestically and trace that history and understand why that risk exists. Not just from a legal standpoint, but as Lysa said, from a practical standpoint of how we've used the military and what the military is trained to do and what, you know,

they're used to doing and how different that is to being on the streets of an American city without an enemy instead thinking about things like American citizens going about their daily life.

“I think people realize that in some sense, but I don't think people always realize all of the risk that's associated with that.”

Joseph, how about you, any thoughts on this? A couple of quick things to add, one, which is, I think, a principle that was running through everything that Lysa and Lauren said,

is that I think we can take it as a first principle that any free society, the course of power of the state should be limited.

The government's actual physical capacity to use course of force should be limited in a free society. And there is no greater force multiplier than the military. The ability to ring and military forces into the domestic sphere massively increases the government's capability to, of course, and citizens. I think that is in itself a problem and is something that should be carefully confined to emergencies. Moving to an issue that I think is a secondary importance, but still worth mentioning is, you know, as Lysa and Lauren said,

domestic law enforcement is not the military's job. They, in fact, have another job that many people think is rather important. And every military service member who is deployed domestically in response to something whatever it is, is doing that instead of whatever their ordinary job is.

“And I think if you're a person who cares about national security, you should be concerned about domestic military operations, pulling personnel resources time and attention away from all of the military's other responsibilities.”

Yeah, I think these are all great points. The only one that I'll add as a former criminal defense lawyer is there is a significant problem. This is not only a lack of training, but just a practical aspect as well of having military members who are not trained in the law, being involved in things like arrests, right? Their individuals, criminal defendants have due process rights. I saw a national guard detaining someone outside of DuPont Circle Metro, not that long ago. That person's case will become very difficult.

It is just an area of crossover that is difficult, if you are, as Lysa you said, in a sort of battle mindset, you're not exactly thinking about due process rights of the people that you're engaging with. And that's on top of the chilling effect that you were describing.

Are they engaged in the training that they would otherwise be engaged in in terms of being ready to respond to foreign threats, where threats from foreign enemies of the country.

Or being deployed overseas, where they would otherwise be deployed overseas.

“But also, the National Guard is not being used right now to step in in a civil unrest situation that has exceeded the capacity of civilian authorities on a temporary basis, right?”

You know, for a few days or however long as it takes to respond to this civil unrest to support civilian law enforcement and then go back home.

Instead, we are seeing these extended, seemingly indefinite deployments president Trump just said that the National Guard is going to stay in DC until January of 2029, interesting month to choose. And, you know, these are these National Guard members have jobs in their communities and these other states that they are coming from.

“They are teachers, their healthcare workers, they are, you know, storekeepers, they serve vital roles in their communities and they're being pulled away from those roles for extended periods of time.”

For so-called crime control purpose, basically to present a show of military force on the streets of DC.

And that is harming the communities that they are coming from, not to mention, of course, their families that they're being asked to leave for these extended periods of time. I just wanted to add something quickly when we were talking about the situations that they may be put in, and you know, they may not necessarily be thinking about certain rights, but I just, you know, want to put out there that, you know, by and large, you know, these National Guard people, these active duty troops are good people, they want to do the right thing.

The issue here is one is sometimes the law is more complex than is clear, especially when it funnels down to to the tactical level, and that they are, you know, not prepared for these situations, you know, if you ask somebody what's the difference between arrest and detention and what are you allowed to do. We're probably not going to get the legally correct answer in many circumstances, because as we've said, you know, this is not the core function, the war fighting function that we've seen in so many cases, and so they're not trained on these types of things, or it's, you know, one hour a year in a classroom, right, and those types of things.

So I just don't want to overlook the fact that I think like these are genuinely good people trying to do the right thing, but we are putting them in very, very difficult situations without the appropriate resources and oversight, and so, you know, we're not setting them up for success. And you know, I talked to the National Guard Forces that I see around DC, I asked them where they're from, I have often asked them, is this what you thought you would be doing when you made the choice to serve, is this what you thought you would be doing.

“And almost to a person, the answer has been no, they have answered the question and they have said no.”

This was not their idea of what service was going to look like. Let's go back to the report, the compendium that you all put together at the Brennan Center, and what you found, where the laws in your mind are the most problematic, given this tension that we're seeing right now, and what you think should be done about it. Joseph, let me start with you on that. So we came away in terms of our analysis of all of these laws, we came away with three general themes that I can girl concerning in their own way.

The first is that state and territorial law governing use of the National Guard is simply often vague and underdeveloped, and particularly with respect to the guards participation law, or spent, there is often just not a lot of law there to interpret, but even even beyond the question of law enforcement, if you look at a state like Wisconsin, for example, or New York is another channel. In both cases, there just isn't a lot of law, and the law that is there is often quite vague, and I think, you know, we're all lawyers, I don't need to tell any of us that, you know, the vague, that's in the law is a problem, and that, you know, creates room for mischief room for miscommunication and misunderstanding.

So I think, you know, a crucial thing that a lot of state legislature is simply to review their laws and make sure that they clearly articulate when the governor can use the National Guard, what the governor can use it for, and particularly when the guard can participate in law enforcement.

So I'm going to give a couple of specific examples here.

The law in Illinois, 20 Illinois compiled statutes, 1, 8, 0, 5, slash, 8, 4, that purports to allow the National Guard whenever it is deployed in response to civil unrest, to arrest any person or persons in view without process and to then detain them indefinitely. And I've said purport intentionally because whatever Illinois law says, no, you can't do that because of the 4th, 6 and 14th amendments and also the constitutional right to petition for the rid of habeas corpus.

“So, you know, that is a law that I think is unconstitutional, it's face, but still in the books.”

Another sort of out there example in Iowa, Iowa Code section 29 A.46, purports to allow the governor to set up military tribunals to prosecute civilians and areas of the governor's place in the martial law. Now, this authority, I think, conflicts with both the section 14 amendments. Obviously, there is this extent Supreme Court case law about the idea of declaring martial law and suggesting that states can do so.

Where the Supreme Court has almost always drawn a hard line of provision when it comes to martial law in its few cases is the idea of prosecuting civilians by military tribunal.

And cases like expert in miligan and doesn't be crown of mocha, which had been a leap both involved federal declarations of martial law. The courts found that that was not permissible. I think they would probably make the same ruling, even in a theoretically permissible state declaration of martial law that even if martial law could be fair that that is taking things too far. I think those are, those are two examples of really kind of shockingly out there laws, but I'll mention with the Iowa law that it also violates the Iowa constitution.

And this ties into a broader theme, many of these states that have a statute authorised in the governor declare a martial law. Also, having provision in their state constitution stating that the military is shall be or must be subordinate to the civil power.

“And that's what a French constitution provision is, in my view, not compatible with an authority to declare martial law.”

Iowa is one of those states. There are 13 states that have that statutory constitutional conflict, particularly involving statutes authorised in martial law. Tennessee is one state where the conflict is even more stark, where rather than the state constitution framing it as the military shall be subordinate to the civil power. The Tennessee constitution actually says that declaring martial law in those terms is prohibited. And yet, a Tennessee statute reports to allow the governor to declare a martial rule, martial rule is a term that is synonymous with martial law, so that's another statute that is unconstitutional, it's face.

And yet, it's on the books. There's a kind of three primary themes that emerge. The generally underdeveloped sparse law, a few states have in laws that, in my view, conflict with the US Constitution, and a lot of laws, a lot of states having laws, those all occurs in martial law that conflict with their state constitution.

It's a clear statement rule that's to use lawyer jargon, which is basically if the president uses a military law enforcement, it has to be pursuant to an express authorization by the legislature.

And that's not a case by case authorization. It's not like every deployment has to be pre-authorized. It just means is there a statute that sets forth conditions that are met in that circumstance.

“Right. That's what the policy commentatus act is. There is no state that has a law that saying that a governor's deployment of the National Guard has for law enforcement has to be pursuant to an express statutory authorization.”

And that to me is is really surprising because whatever authorization the state came up with legislative authorization could be as broad as the state wanted. It's not, it isn't a draconian limitation to say that the deployment has to be pursuant to express authorization by the legislature. It's up to the legislature in that situation, but state legislatures have to some degree just abdicated that role to the governor.

state legislatures to do is to enact state level versions of the Poscomptala Act that are, you know, undoubtedly customized to suit their circumstances. And as was acknowledged, the idea here is not to prevent the National Guard from ever being used for law enforcement.

“I think we all agree, I would mention almost everywhere agrees, that the National Guard does have a legitimate role to play in law enforcement under certain circumstances.”

The goal here is simply to flip the presumption, so that instead of a world where the governor has broad authority, broad discretion to decide when, where and why to use the National Guard. It is instead a case of the governor can only use the National Guard for law enforcement to pursue into specific sexual authorizations that have been acted by the state legislature.

The second sort of reform that we're encouraging states to look into is to emulate or adapt a bill recently enacted in Virginia.

So the Virginia bill, which is HB286, it does four main things. First, it requires the agitant general, the agitant general being the highest ranking military officer in any state's National Guard. To submit an annual report that details the status and activities of the Virginia National Guard with particular attention paid to federal funding and the use of National Guard resources by federal authorities. The second thing it does is it slightly narrows the governor's flowman authority in one area. This is, this amounts to basically striking out, but not limited to following the word including that the start of the list of all-hurst appointments.

So it's not enormous change, but it is slightly narrow the aperture.

Third, the law reinforces Virginia's already strong prohibitions on election interference by emphasizing that the National Guard may not be used to violate those laws.

And lastly, it directs the creation of a working group to consider additional reforms. It's not dramatic changes in, you know, the Virginia bill, it's not a panacea, and it doesn't even represent a huge shift in the state law.

“But it does do something that I think is very important, where it starts the process of the Virginia state legislature, re-asserting an interest in and control over the Virginia National Guard.”

There is an attitude in many state legislatures of the National Guard, that's not our business, that's the Pentagon's business. You know, what do we have to do with the National Guard?

But that's simply not true, and that's not in line with how things have always worked in this country.

And I think it's important to understand that the various National Guard did not replace the state militias. They are the state militias. And within, you know, the broader history of Anglo-American law, the tradition of legislative control over the military is more than 800 years old. And the same way that oversight of the Federal Armed Forces is a primary duty of Congress, oversight of the National Guard in its activities is a duty of state legislatures. What is so encouraging about this Virginia bill is that it starts this process of sort of re-asserting that legislative role in overseeing the National Guard its activities.

It's funding all aspects of its operation, which is something that the state legislatures should absolutely be doing. Yeah, and Lauren, I want to come to you on what takeaways you have from all of this or what you've found surprising. But I will just note that one thing I also want to add to the oversight and the involvement of the legislature that you were just describing, Joseph, is one thing we have found, particularly in Lauren's work, mapping current domestic deployments,

“is a sort of to me at least shocking lack of information and transparency about the details of these deployments, including basics, like under what legal authority are these deployments happening?”

Is it title 32? Is it title 10? Is it 502F? Is it something else? Also lack of definition of what the mission is? How are you to determine if your state national guard is operating according to state law as they are required to do under title 32? If you don't even know what they're doing, and you can't figure it out.

But with apologies for that intervention, Lauren, what sort of things did you find interesting from this compendium?

“I think what was most surprising to me was the conflict with constitutional provisions.”

I had already known from various states that the laws were all they were vague, but the idea that there are still statutes on the book at the state level, that are just clear violations of our constitutional rights, is to me something that just shows you like the priority in reform in this space. I know that there are so many different reform and protection efforts going on now, but that to me is just like a very, very clear example of risk that this Brennan Center work has found that I don't feel like is adequately being addressed.

And I know Joseph mentioned what has happened in Virginia, but I'm talking about some of these other areas where there's clear risk to constitutional rights in such a way.

And I just would really encourage people to be tracking that and even looking up what your state laws are in this compendium and seeing what it is, because I don't think anyone realized quite how acute that risk was until this came out.

“And I think, you know, we can't count on, you know, the remedy of going into court and saying this violates the constitution.”

I mean, you know, you might imagine, well, what's the rush to take care of these conflicts, because of course the constitution is going to prevail. And so you can just go into court and the judge will say, "No, this is on constitutional." So why don't we just let the courts take care of that?

The problem with that is first of all, courts can take a while. And in the meantime, these horses are deployed doing something that is unconstitutional that violates the rights of the people.

But also it can be difficult to get into court with some of the jurisdictional sort of standing issues and other issues that sometimes make it difficult for for people to vindicate their rights in court. And so it really is important for legislators to clean up their laws and get rid of statutes that plainly violate either the US constitution or their own constitution. And following on with what long close with, I would encourage folks listening to look up the resource and check their own state. The something we haven't mentioned is the resource includes a very cool interactive map that I did not make them up, which is why it's I can say that it's very, very cool that allows you to sort of filter the very states by certain parameters and also click and see a summary of your state's laws.

“I think in most places that you might live, you will find something interesting, whether it's that your state's laws are you know,”

concerning linguist's power, whether that they grant concerning legal discretion, or maybe you will find something really shocking like the sort of Illinois and Iowa statutes that we've mentioned. Sometimes not not most of the time you might actually find that there is legal protection in those laws that might mean that what the National Guard is doing in your state is something they shouldn't be doing and that's pretty much what happened in Tennessee, which is that Tennessee is one of the few states that actually has very strict limitations on the use of the National Guard within the state.

And the deployment of guard forces in Memphis, the lower court found was in violation of those laws. Now that ruling has been placed on hold, pending appeal, but. Yeah, it's ironic, Tennessee is ironic because of the martial law issue I mentioned earlier, but the, and it kind of highlights some of this sort of sometimes tension between statutes and constitutions, where the Tennessee constitution is among the strongest in terms of placing limits. On how the National Guard can be used within Tennessee, but there are some statutory issues that the legislature needs to address.

Okay, Lauren, I'm going to give you the last word to talk about your and my and our colleague Molly's recent obsession with what all of this means for the upcoming elections. As we've touched on there are some serious loopholes and concerns about whether all of this can mean that there will be National Guard involved with. Elections and I'm wondering now with this compliment of thinking through state law, which is not something that we had talked about in our pieces. What do you think all of this means?

Yeah, I mean, the first thing I would say is when most people talk about restrictions on military intervention at polling sites, they're talking about restrictions that have to do with the federal military.

And in fact, during COVID times, we saw a number of states do that because they didn't have enough personnel to work the sites granted, you know, they were doing a very narrow role, right?

“They weren't trying to deal with interference, right, or those types of things, but you could see legally National Guard and state active duty doing things that are election related.”

But then we get into the even more complicated bucket, which is the title 32 bucket, and there is a lot of questions about what kind of legal argument could be made under 502F to support willing governors using their National Guard in some way at election sites. With the argument being that well in title 32s, we discussed earlier, they're not part of the federal military, and then that some of these prohibitions don't apply.

What I would say though is that the main prohibition that people talk about 18 USC, 592 also known as like troops at polls.

Well, it says, you know, no army or navy, it also talks about federal civil officers, right? So if it was a title 32 mission and you had the secretary of defense or the president being the one to say this is the federal mission that you will do, they would still be in violation under 592, even if the troops that were there were National Guard responsible to their governor. And so all that to say, there is a lot of concern that arguments could be made that things could happen that would be confusing to people on the ground.

And as Liza said earlier, you know, it takes time for these things to be figured out and hashed out and court and elections are short, right, even the counting that happens after you don't have you don't have the months. I just think that the concern there is valid, and it's something that we should all be paying attention to.

“I think, you know, a lot of attention is paid to to this particular troops that polls law, section 592, because it specifically mentions troops or other or other armed men, I guess armed women are okay, I don't know.”

Every state has laws and there is federal law that prohibits voter intimidation by anyone, it's not specific to federal troops, it's not specific to state National Guard forces, but it applies to them, it applies to everyone. And these laws do not depend on the intent of the deployment, it's just about the effect, if voters are intimidated, the law has been violated, and these laws can be enforced unlike section 592, these laws can be enforced through private action through private lawsuits. So whatever the laws in our compendium say about how governors can use National Guard, they cannot use National Guard, the National Guard to intimidate voters, because that would be a violation of state and federal law, and that law can be enforced.

Okay, I think that's a great note to end on, I think it really underscores this broader trend, this broader theme that we've talked about, which is that the National Guard legal parameters and framework is very complicated, it is a patchwork that is extremely hard to track up until the Brennan Center did this work of compiling all of these laws that have here to forben extremely difficult to sort out, and there is quite a lot of work to be done, quite a lot of concerns that we've identified. And quite a lot that could be done at the state legislature level to rectify that.

So we will put a link to the Brennan Center's work in the show notes, you can find it on their website, it's called state and territorial laws governing the National Guard. And I want to thank you, Liza, Joseph, and Lauren for joining me today. Thank you so much for having us. The Lawfare Podcast is produced by the Lawfare Institute.

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