Federal Control of the National Guard Not in Federal Service

Federal Control of the National Guard Not in Federal Service

INSIGHTi
Federal Control of the National Guard Not in
Federal Service
November 24, 2021
This CRS Insight discusses federal authority over state militia practices that diverge from Department of
Defense policy and may adversely affect readiness of the National Guard of a state or the National Guard
of the United States to perform federal missions under title 32 or title 10 of the U.S. Code, respectively.
Background
The federal government has broad authority over the National Guard. Congress may exercise its
constitutional power to arm, organize, and discipline the militia as it considers necessary (U.S. Const., art.
I, §8, cl. 16). The President of the United States must issue orders and regulations necessary to govern,
organize, and discipline the National Guard (32 U.S.C. §110). The President’s governance of the National
Guard includes policy that applies to al states and National Guard members (Assoc. of Civ. Tech. v.
U.S.A., USCA D.C. Cir. Case No. 09-5153 (Apr. 30, 2010), §II, p. 8).
This federal authority is not exclusive: the National Guard is unique because it simultaneously possesses
federal and state attributes making it responsible to both national and local sovereignty (Lipscomb v.
FLRA, USCA 5th Cir. Case No. 02-60060 (Jun. 24, 2003), §II, p. 2). It is a single organization established
as two entities—one state (National Guard), the other federal (National Guard of the United States) (In re
Sealed Case, USCA D.C. Cir. Case No. 07-5251 (Jan. 6, 2009), §I, p. 2). Yet, the National Guard’s
functions and capabilities are almost exclusively funded and stipulated by the federal government
(Perpich v. DOD, USSC Case No. 89-542 (Jun. 11, 1990), §II, p. 18 (351)). Whether state or federal
authority controls the National Guard depends on both relevant law and the particular facts; using federal
funds for their proper purpose can often be a primary consideration when making this determination (31
U.S.C. §1301(a)(d), see NG Fiscal Law Guidebook).
Congress appropriates funds to train the National Guard and maintain its readiness for federal missions
(32 U.S.C. §§106, 107, 708). The objective of the National Guard training policy “is to train units that can
mobilize, deploy, fight, and win anywhere in the world ... with a minimum of ... training time” (NGR 350-
1, para 1-5). The Army and the Air Force have “broad discretion ... to regulate” National Guard training
(B-176491, Comp. Gen. Jul. 17, 1972).
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IN11808
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Forfeiture of Federal Support
Members of the National Guard of a state have a dual role as members of the National Guard of the
United States, which provides a reserve component of the Army and the Air Force (10 U.S.C. §§10105,
10111, 12107(b)). When not on active duty, members of the National Guard of the United States are to be
trained, equipped, and administered as members of the National Guard of a state (10 U.S.C. §§10107,
10113). If a state does not comply with a requirement under title 32, U.S. Code, or its implementing
regulations within a period specified by the President, the National Guard of that state can be barred from
receiving funds or any other federal y authorized aid, benefit, or privilege (32 U.S.C. §108).
Withdrawal of Federal Recognition
National Guard members must be federal y recognized through regulations issued by a service secretary
(see ARs 135-100, 601-210). To be eligible for federal recognition a member shal possess the
qualifications prescribed in these regulations (32 U.S.C. §§301, 307(a)(2)). National Guard officers also
are subject to suitability standards established under the authority of the President (3 U.S.C. §302; 32
U.S.C. 307(a)(3); NGR 600-100). Taking a dual oath of service that recognizes the authority of both the
President and a state’s governor is required for membership in the National Guard (32 U.S.C. §312).
If a National Guard member no longer qualifies for federal recognition, or is not assigned to a federal y
recognized unit, the member’s recognition is to be withdrawn (32 U.S.C. §323(a)). A National Guard
officer’s “capacity and general fitness ... for continued Federal recognition may be investigated at any
time” (32 U.S.C. §323(b)). If a board of officers investigating a National Guard officer’s suitability for
federal recognition makes unfavorable findings that are approved by authority of the President, the
officer’s recognition is to be withdrawn (3 U.S.C. §301; 10 U.S.C. §10503(8); NGR 635-101, §IV).
Trial by Court-Martial
A state’s National Guard typical y has a code of military justice (CMJ) enacted as state law that wil
include punitive articles and their punishments (see P.L. 107-314, §512(e), Models for State Code of
Military Justice). CMJ offenses resemble Uniform Code of Military Justice (UCMJ) offenses, such as
contempt toward officials and failure to obey order or regulation (see UCMJ and model CMJ arts. 88,
92). National Guard courts-martial are constituted like those in the Army and the Air Force and both
federal and state officials may convene them (32 U.S.C. §§326, 327(b), see model CMJ arts. 22, 23, 24).
The President and certain Army or Air Force commanding officers are designated as convening
authorities under federal law (Title 32); the governor and similar commanding officers in the National
Guard are designated under state law (state CMJ).
Although Congress enacted the present form of concurrent federal and state discipline authority over the
militia in 1916, it is unclear if a federal convening authority has ever court-martialed a member of the
National Guard not in federal service (P.L. 64-85, §§102-108 (Am. by P.L. 107-314, §512(b)), see Digest
of Opinions of the JAG of the Army (1912-1940), §1273). If such court-martial were convened, it likely
would be conducted pursuant to rules and procedures in the United States Manual for Courts-Martial
(MCM) (R.C.M. 504). However, any charges referred by a federal convening authority to a National
Guard court-martial could only be for state CMJ offenses and the punishment associated with these
offenses also would be governed by state law (32 U.S.C. §327(a), see H.Rept. 107-772, p. 643).

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Author Information

Alan Ott

Analyst in Defense and Intelligence Personnel Policy

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IN11808 · VERSION 1 · NEW