The National Guard and the COVID-19 Pandemic Response

The National Guard and the COVID-19 Pandemic Response

Updated March 12, 2021
The National Guard and the COVID-19 Pandemic Response
National Guard
members on SAD receive state pay and benefits. Federal
Today’s state militias trace their lineage from colonial-era
funds are not available for SAD unless and until the
militias that predate the United States. The Constitution
President declares an emergency or a major disaster. After
grants the Congress and President limited authority over a
such declaration, and if authorized under federal law, the
state’s militia (U.S. Const., Art. I, §8; Art. 2, §2). State and
Federal Emergency Management Agency (FEMA) may
territorial governors serve as Commander in Chief of their
provide federal funds to an eligible requesting state.
militia. Federal law establishes two classes of militia:
organized militia and unorganized militia (10 U.S.C. §246).
Emergency Management Assistance
The unorganized militia consists of specified individuals
Governors may order their National Guard to provide NGCS in
who are not in the organized militia. The organized militia
another state. Such support is subject to reimbursement and
consists of the National Guard and Naval Militia. There are
governed by state and federal law (P.L. 104-321). This type of
54 organized militias: one in every state, in addition to
support is performed through an Emergency Management
Guam, Puerto Rico, the U.S. Virgin Islands, and the District
Assistance Compact (EMAC).
of Columbia (DC). The National Guard is subdivided into
the Army National Guard (ARNG) and the Air National

Guard (ANG). The ARNG and ANG are also two of the
Federal Activation
seven reserve components of the armed forces of the United
The militia may be federalized to perform federal service as
States, denoted as ARNGUS and ANGUS.
a component of the U.S. armed forces (U.S. Const., Art. I,
§8, cl. 15.1). The National Guard may be mobilized to
The Organized Militia’s Maritime Element
perform active duty as a reserve component of the armed
The 54 organized militias have an ARNG and ANG as land and air
forces of the United States (U.S. Const., Art. II, §2, cl.
elements. Approximately 30 have a Naval Militia; all but six are
1.1.2). With gubernatorial consent, the National Guard may
dormant. The Navy included Naval Militias among its reserves as the
be federalized to perform full-time duty (FTNGD) as an
National Naval Volunteers in 1914, but it eliminated this reserve
autonomous force in the service of the United States (U.S.
force before World War II.
Const., Art. I, §8, cl. 16.1). Governors remain in command
of FTNGD forces. Command of all other federally activated

state forces transfers to the President.
National Guard Civil Support
Full-Time National Guard Duty
The National Guard is a multi-role force at the disposal of
Activation to perform FTNGD occurs when a governor
governors and, when activated under federal law, at the
approves a request from the President for National Guard
disposal of the President. It has primary responsibility to
personnel to perform a federal operational support mission
support state and local government responses to disasters
(32 U.S.C. §502(f); H.Rept. 109-452, p. 311). Such
and emergencies (DODI 3025.21). Such responses are part
personnel receive federal pay and benefits and may perform
of the National Guard Civil Support (NGCS) mission,
only the duties that are authorized by their federal orders.
which is analogous to the Defense Support of Civil
Authorities (DSCA) mission for active duty units (DODD
Trump Administration FTNGD Policy
3025.18). NGCS is defined as “support provided by the
On March 13, 2020, then-President Donald J. Trump issued
National Guard while in a State Active Duty status or Title
a proclamation in which he declared a national emergency
32 status to civil authorities for domestic emergencies,
concerning the COVID-19 outbreak (Proc. 9994, 85 FR
designated law enforcement, and other activities” (CNGBI
15337). Such declarations normally are the first step in the
3000.04). NGCS includes support to law enforcement
process for authorizing FEMA to fund SAD. A few days
agencies during civil disturbances (NGR 500-5).
after the declaration, the Council of Governors advocated
that the Secretary of Defense develop a separate FTNGD
request and activation process for NGCS pandemic
NGCS in the District of Columbia
response missions, in lieu of SAD, and distinct from
The DC militia is equivalent to a state militia (32 U.S.C. §101), but
Department of Defense (DOD) DSCA policy for FTNGD.
the President is its Commander in Chief (D.C. Code §49–409). An
executive order issued in 1969 delegates command of the DC
On March 22, 2020, the President issued a memorandum
National Guard (DCNG) to the Secretary of Defense, but orders
that authorized 100% funding for FTNGD and directed the
calling out the DCNG for NGCS are “subject to the direction of
Secretary of Defense to request the National Guard from
the President ....” (E.O. 11485).
the three states listed in the memo (85 FR 16997) (45 states
were later added, along with DC and 3 territories). Such
State Activation
funding is uncommon as the National Guard customarily
supports disaster and emergency responses on SAD with its
When called out to state service by order of a governor, a
costs reimbursed from FEMA’s public assistance fund. The
militia activates to perform state active duty (SAD). Militia
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The National Guard and the COVID-19 Pandemic Response
following day, DOD indicated that the President’s
Administration’s policy “to combat and respond to COVID-
memorandum did not alter existing DSCA policy for
19 with the full capacity and capability of the Federal
FTNGD. DOD’s past practice was not to characterize a
Government ....” (86 FR 7481). The action memorandum
SAD mission for public health emergencies as a federal
includes a request that all state and territorial governors
operational support mission, and, even if it did, DOD
order their National Guard to perform FTNGD on a fully
would have the option to assign federal forces instead of the
reimbursable basis to fulfill missions assigned to DOD for
National Guard. Nothing changed, a state still had to
the purpose of supporting state, local, tribal, and territorial
convince DOD that its SAD mission was also a federal
emergency assistance efforts related to the COVID-19
mission for which its National Guard was best suited.
pandemic. The President also approved 100% federal cost
sharing for FTNGD on January 21, 2021, which superseded
Four days after announcing that there was no change to the
the previous Administration’s policy of 75%.
DSCA policy, DOD established a unique process for
pandemic response FTNGD, similar to the one requested by
Perspectives on the Two Policies
the Council of Governors. According to a March 27, 2020,
The full capacity and capability approach of the new
DOD statement, the new process featured a conditional pre-
Administration’s policy is similar to the whole-of-
authorization for National Guard mission assignment
government approach eventually adopted in the previous
requests. This was intended to fast-track funding for
Administration’s policy. Both approaches establish a
FTNGD that would “aid in whole-of-government COVID-
national operational support mission that permits funding
19 response efforts.”
for FTNGD. It is the implementation of the two policies
that differs. The previous FTNGD policy required
Trump Administration FTNGD Process
requestors to satisfy certain preconditions before they could
The Administration initially authorized FTNGD for specific
receive federal funding. Approved funding was for periods
National Guard units, but only for 30 day periods. If
of duty that necessitated regular extensions. These
approved for extension, the Administration would issue
extensions and other matters entailed frequent
new orders for successive periods of the same length.
administrative adjustments to the FTNGD policy; President
However, 30 day FTNGD orders do not qualify deployed
Trump issued 20 memorandums containing these
National Guard members or their families for DOD health
adjustments in 8 months. In the new policy however, there
care. On April 13, 2020, the Secretary of Defense
are no preconditions, so all 54 National Guard entities are
authorized longer periods that allowed access to the military
presumptively eligible for FTNGD funding. This gives the
health system.
Secretary of Defense broad discretion, “to the maximum
extent feasible and consistent with mission requirements,”
At the end of 2020, the Administration’s latest guidance for
to assign COVID-19 pandemic response missions to the
the FTNGD process required states or territories to have:
National Guard.
 An approved major disaster declaration or have
Biden Administration Federal Cost Sharing
submitted a declaration request for review,
The new policy also removes funding variances. It states
 Activated the lesser of 500 individuals or 2% of
that FEMA “shall fund 100 percent of the cost of activities
National Guard on SAD, and
associated with all mission assignments for the use of the

National Guard under 32 U.S.C. 502(f) to respond to
Issued a resource request and agree to the applicable
COVID-19 ....” Legislation introduced in Congress in
cost share.
January 2021 would also require 100% federal cost share
As of December 7, 2020, the Administration reported that
for FTNGD (S. 38; H.R. 324). In February 2021, President
approximately 18,000 National Guard members were
Biden issued a federal cost sharing policy for various
deployed on FTNGD and it had obligated over $2.7 billion
matters that includes a 100% federal cost share
for the National Guard’s COVID-19 pandemic response.
authorization for all prior FTNGD that was not fully
Trump Administration Federal Cost Sharing
funded, retroactive to January 20, 2020 (86 FR 8281).
In March 2020, FTNGD funding started at 100% federal
cost share. This included salary, allowances, travel, and per
Biden Administration FTNGD Missions
diem. In August 2020, the Trump Administration reduced
On February 24, 2021, President Biden continued the
the federal cost share for FTNGD to 75%, leaving states to
COVID-19 pandemic national emergency declaration
fund the remaining 25%. Some states, however, were not
beyond March 13, 2021 (86 FR 11599). Based on the
included in the August FTNGD cost share reduction. The
President’s National Strategy for the COVID-19 Response
Administration funded Arizona, California, Connecticut
and Pandemic Preparedness, issued in January 2021, it
and Louisiana at 100% through September 30, 2020. It
appears that the new FTNGD funding policy could endure
funded Florida, Iowa, and Texas at 100% through
through the emergency’s continuance. The strategy includes
December 31, 2020. For the period from January 1, 2021, to
NGCS roles and functions that may broaden the national
March 31, 2021, the Trump Administration approved all
operational support mission. Among other requirements,
FTNGD funding for the COVID-19 pandemic response at
the strategy includes National Guard assistance for clinical
75% federal cost share.
care staffing, reopening of schools, and federal vaccination
Biden Administration FTNGD Policy
center operations.
The day after assuming office, President Joseph R. Biden,
Jr. issued a Presidential Action Memorandum to the
Alan Ott, Analyst in Defense and Intelligence Personnel
Secretaries of Defense and Homeland Security stating his
Policy
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The National Guard and the COVID-19 Pandemic Response

IF11483

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