April 1, 2020
The National Guard in the COVID-19 Pandemic Response:
Framework for Action
National Guard
the authority of federal law, pursuant to 32 U.S.C. §502(f)
The Guard is an adaptable tool at the disposal of State
(502(f)). Active service under the federal authority of
Governors and, when federalized, at the disposal of the
502(f) is not federal active duty (10 U.S.C. §101). The state
President to respond to a range of threats to the security of
government funds state active duty and the U.S.
the U.S. populace. There are National Guard entities in each
government funds FTNGD, but both are performed under
state and one in Guam, Puerto Rico, and the U.S. Virgin
the control, direction, and authority of a governor pursuant
Islands, each of which has a governor who serves as its
to state law. Claims arising from the negligent acts or
commander-in-chief. The National Guard consists of the
omissions of ARNG or ANG members performing state
Army National Guard (ARNG) and the Air National Guard
active duty are processed under state law and paid from
(ANG) (32 U.S.C. §101). The ARNG and ANG are under
state funds or insurance. Claims arising when ARNG or
the control, direction, and authority of a state chain of
ANG members are performing FTNGD are processed under
command and are subject to state and federal military law
the Federal Tort Claims Act (FTCA) and paid from federal
and regulation. The District of Columbia National Guard is
funds.
a federal entity with the President as commander-in-chief.
State Active Duty
National Guard and the Reserve Component
The National Guard is the only force among the Armed
The term Reserve Component (RC) means the seven
Forces authorized to perform state active duty, typically
reserve forces of the Armed Forces: the Army, Navy, Air
performed in response to disasters or emergencies. Federal
Force, Coast Guard and Marine Corps Reserves (Reserves),
funds are not obligated for state active duty unless and until
and the ARNG and ANG. Each reserve force has a national
the President declares an emergency or a major disaster and
security mission, but the ARNG and ANG are the only ones
the Federal Emergency Management Agency (FEMA)
that are part of a state government and have direct
approves a governor’s request for assistance under the
responsibility for responding to domestic disasters,
Robert T. Stafford Disaster Relief and Emergency
emergencies, and civil disorder.
Assistance Act (Stafford Act). The Stafford Act allows
FEMA to reimburse a state for state active duty pay and
National Guard and the Posse Comitatus Act
allowances disbursed.
The Posse Comitatus Act (PCA) does not apply to the
ARNG or ANG, but it does apply if they are activated
FTNGD
under title 10 of the U.S. Code (federal service). The PCA
The National Guard is authorized to perform FTNGD if
criminalizes the willful use of the Army or Air Force to
federal funding is available and it is approved by the
execute the law unless expressly authorized by the
Department of Defense (DOD). The purpose of FTNGD
Constitution or Congress (PCA includes the Navy, Marine
must be consistent with the purpose of the federal
Corps, and Space Force (10 U.S.C. §275)). The PCA
appropriation that funds it. DOD or a governor can cancel
prohibition covers civil government or law enforcement
FTNGD orders with superseding federal active duty orders
functions (18 U.S.C. §1385).
or state active duty orders, respectively. In 2006, Congress
amended 502(f) “... to better reflect the nation’s continuing
Federal Service
reliance on the National Guard ...” and expressly authorized
There are five federal statutes that authorize activation of
FTNGD for Operational Support (FTNGD-OS) missions
the RC: (1) Full Mobilization (10 U.S.C. §12301(a)); (2)
undertaken by a “... unit at the request of the President or
Partial Mobilization (10 U.S.C. §12302); (3) Presidential
Secretary of Defense.” (H.Rept. 109-452, p. 311.)
Reserve Call-up (10 U.S.C. §12304); (4) Domestic
Emergency (10 U.S.C. §12304a); and (5) Contingency
National Guard members can only perform duties for
Operations (10 U.S.C. §12304b). The fourth and fifth
mission requirements that are expressly authorized in the
statutes, both added in 2011, authorize activation of the
FTNGD-OS orders. National Guard members on FTNGD-
Reserves to respond to disasters and emergencies for up to
OS are available for Defense Support of Civil Authorities
120 days and of the RC to support Combatant Command
(DSCA) if a governor makes a formal request for DSCA
preplanned missions for up to one year, respectively.
authority (DOD Instruction (DODI) 3025.22). If approved
by the Secretary of Defense, support could occur under
State Service
§502(f), but the FTNGD-OS must be operational support
If not activated in federal service, the National Guard may
that is aligned with a federal purpose, not a state purpose.
be activated in state service on state active duty under the
authority of state law. It may also be activated in state
service on full-time National Guard duty (FTNGD) under
https://crsreports.congress.gov
The National Guard in the COVID-19 Pandemic Response: Framework for Action
COVID-19 Pandemic Response
Modified 502(f) Activation Authority Approval
The Stafford Act allows the U.S. government to provide
Four days after issuing the information paper, DOD
assistance to state and local governments after a disaster or
modified the DSCA process to allow 502(f) activation
during an emergency, to include funding National Guard
authority approval similar to the separate process requested
state active duty for a state mission or FTNGD-OS for a
by the Council of Governors. According to DOD’s March
federal mission. DOD’s DSCA policy allows it to assist
27 statement, the modification creates a conditional pre-
states if reimbursed by another federal agency, such as
authorization in response to a FEMA mission assignment
FEMA (DOD Directive (DODD) 3025.18).
request to DOD and ensures accelerated federal funding for
National Guard 502(f) activation “... to aid in whole-of-
502(f) Activation Authority
government COVID-19 response efforts.” DOD designated
COVID-19 Pandemic and 502(f) activation milestones in
FEMA’s National Response Coordination Center as the
2020 include:
single point of entry for all requests for assistance. A pre-
authorization is subject to these conditions:
11 March – World Health Organization (WHO)
classifies COVID-19 outbreak as a pandemic.
The states and territories or FEMA must identify
13 March – President declares COVID-19 pandemic is a
specific requirements for COVID-19 support in
National Emergency.
accordance with the Stafford Act.
19 March – Council of Governors asks the Secretary of
For requirements originating from the states and
Defense to establish a separate DSCA 502(f) activation
territories, these requests must be submitted to FEMA.
authority approval process for governors.
FEMA provides DOD with a fully reimbursable mission
22 March – President Donald J. Trump issues a
assignment.
memorandum (President’s Memorandum) directing
FEMA reimbursement of DSCA 502(f) activation
The Secretary of Defense delegated authority to the
authority for some states.
Assistant Secretary of Defense for Homeland Defense and
23 March – DOD information paper explains there is no
Global Security (ASD(HD&GS)) to approve mission
change to DODI 3025.22 DSCA 502(f) activation
assignment requests meeting these conditions.
authority approval process.
27 March – DOD statement modifies DODI 3025.22
502(f) Funding Approval
DSCA 502(f) activation authority approval process.
The President’s memorandum requesting specific governors
30 March – FEMA guidance explains the process for
to activate their National Guard under 502(f) appears to
adding states to the President’s memorandum.
harmonize the purpose of state service in a FTNGD-OS
duty status with the purpose of federal funding for a
The President’s memorandum contained two directives:
national response to the COVID-19 pandemic. FEMA’s
March 30 guidance explains the Administration’s process
FEMA will fund National Guard activities in response
for including additional states in the President’s
to the COVID-19 Pandemic.
memorandum. The Administration will consider adding
states to this memorandum if a state’s request for 502(f)
DOD will authorize 502(f) activation for the California,
authority is based on certain criteria:
New York, and Washington National Guard on a
reimbursable basis and request their governors activate
A state must have an approved major disaster
the National Guard under 502(f) to fulfill FEMA
declaration for the COVID-19 response or have a major
missions assigned to DOD.
disaster declaration request pending with FEMA.
A state must have 500 members or 2 percent of its
The President later added Guam, Florida, Louisiana,
National Guard on state active duty for a COVID-19
Maryland, New Jersey, Puerto Rico, and Massachusetts to
response.
the second directive.
A state must submit a request through the FEMA
Regional Administrator to the FEMA Administrator for
502(f) Activation Authority Approval
502(f) reimbursement that identifies emergency support
DOD’s March 23 information paper describing the
activities the National Guard will conduct for COVID-
President’s memorandum states: (1) DOD can only
19 support, consistent with the Stafford Act.
authorize 502(f) activation for National Guard forces
FEMA will issue a fully reimbursable mission
performing a DOD mission or providing DSCA on a
assignment to DOD, including reimbursement for
reimbursable basis; and (2) DOD cannot authorize 502(f)
FTNGD-OS that fulfills the mission, for states approved
activation for a state mission. DOD approval of a FEMA
under these criteria.
mission assignment request will only result in a 502(f)
activation if reimbursement is available and DOD
The U.S government will fund a state’s 502(f) activation for
determines National Guard forces are the best option to
30 days from the date the Administration adds the state to
fulfill an assigned FEMA mission, which is consistent with
the President’s memorandum. The Administration will
DODI 3025.22. DOD retains its discretion to deny a FEMA
work with states approved under these criteria to assess the
mission assignment request or to refuse to fulfill a request
need for extending 502(f) activation authority.
with personnel and equipment from the active duty, 502(f)
activated National Guard, or activated RC (including the
ARNG and ANG on active duty in federal service).
https://crsreports.congress.gov
The National Guard in the COVID-19 Pandemic Response: Framework for Action
Alan Ott, Analyst in Defense and Intelligence Personnel
Policy
IF11483
Disclaimer
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https://crsreports.congress.gov | IF11483 · VERSION 1 · NEW