Earlier this month, the Biden administration released its Statement of Administration Policy (SAP) for the 2023 National Defense Authorization Act (NDAA). In it, the administration opposed Section 516 of the bill, a crucial reform provision that responds directly to abusive Trump-era deployments of the National Guard. In short, section 516 would prevent the president from borrowing National Guard troops from a friendly governor to use them as a domestic police force in another jurisdiction without its consent. The administration’s objections to Section 516 are nonsensical in light of existing statutory restraints, and they ignore the true constitutional issues at stake.

The Legal Framework for National Guard Missions

For any given operation, members of the National Guard might serve in one of three different legal statuses. The first and most common is “State Active Duty” (SAD) status, in which they carry out a state-defined mission at the state’s expense and under the command and control of the state governor. Second, in “Title 10” status, National Guard personnel are “called into federal service,” or “federalized,” by the president. When that happens, they serve under the president’s command and control, and they temporarily become part of the federal armed forces. Finally, there is a hybrid option known as “Title 32” status, in which Guard forces remain under the command and control of the governor but are paid by the federal government and perform missions authorized by Congress. Title 32 status is used to fulfill the Guard’s federally mandated training requirements and also, under 32 U.S.C. § 502(f), to carry out other missions undertaken “at the request of the president or Secretary of Defense.”

One important consequence of the status under which Guards units operate is the applicability of the Posse Comitatus Act (PCA). The PCA bars federal military forces from participating in civilian law enforcement activities unless doing so has been expressly authorized by Congress. In general, that means the president cannot use the military to suppress civil unrest unless he invokes the Insurrection Act—a move that risks significant political blowback. But the PCA applies to National Guard troops only when they are federalized, and not when they are acting in SAD or Title 32 status.

Section § 502(f) and the Trump Administration’s Posse Comitatus Act Loophole

In June 2020, Donald Trump sought to deploy troops in Washington, D.C. to suppress the largely peaceful protests that erupted after the police killing of George Floyd. He was able to deploy the D.C. National Guard without obtaining the consent of D.C.’s mayor, and without adhering to the PCA, because unlike all other National Guard forces, the D.C. National Guard is under the president’s command and control even when not federalized. (That’s a whole other problem, which we’ve discussed here previously.) But he also greatly augmented that military police force by making requests to 15 states’ governors under Section 502(f) to deploy their Guard forces into Washington, D.C. Eleven governors agreed to this request and sent thousands of their National Guard personnel into Washington—against the strong objection of D.C.’s mayor. To our knowledge, this is the first time any governor acting under Title 32 has deployed their National Guard troops into another jurisdiction without that jurisdiction’s consent.

Trump’s actions here must be distinguished from the scenario in which a president federalizes the National Guard and sends Guard forces into other, potentially unwilling states. When called into federal service, National Guard personnel are effectively members of the U.S. armed forces, and the president may deploy them wherever they are needed. However, the PCA would apply to any such deployment. Thus, if the deployment were for the purpose of conducting law enforcement, the president would need to invoke the Insurrection Act or another statutory exemption to the PCA.

Among many other problems, interpreting Title 32 to allow interstate Guard deployments without the host jurisdiction’s consent raises stark concerns over the president’s authority to use the military as a domestic police force. Governors are free to decline federal missions requested under Section 502(f). The prerogative not to deploy is not only an inherent component of command and control; it’s an important means of ensuring adherence to the principles reflected in the PCA. If the president could force governors to deploy National Guard troops under Title 32, he could evade the intent of the PCA by acting through unwilling state intermediaries. But a governor’s ability to decline a federal mission loses its meaning if the president can simply send in forces from a willing neighboring state. Indeed, if there were no need for the host jurisdiction’s consent, the president would rarely need to federalize the National Guard—and would thus rarely be bound by the PCA. All he would need to use Guard forces anywhere in the country is one willing governor.

How Section 516 of the NDAA Closes this Loophole

Section 516 of the NDAA, introduced by Representative Mikie Sherrill (D-NJ), is a commonsense reform that will close this unintended gap in current law. It would add language to Section 502(f) providing that missions requested by the president or Secretary of Defense under the provision require the consent of “the chief executive officer of each State [defined to also include U.S. territories and possessions] in which such operations or missions shall take place,” or, if the mission will take place in D.C., of “the Mayor of the District of Columbia.” With this modification, a president would no longer be able to call on a friendly governor and ask to borrow their National Guard to use it as a domestic police force in an unwilling jurisdiction. Instead, a president who wished to use the military to enforce the law would have to follow the procedures established by Congress and incur the political costs of invoking the Insurrection Act.

In the SAP released for the NDAA earlier this week, the Biden administration objected to this provision, saying:

The Administration opposes section 516 because it would permit non-Federal officials to disapprove use of National Guard personnel carrying out DoD operations and missions in a certain title 32 duty status, even when those personnel are performing their duty on Federal lands and at Federal facilities. Section 502(f) of title 32, United States Code, is used to permit National Guard personnel, under the command and control of their respective governors, to carry out DoD missions, including DoD support to other Federal departments or agencies.

This explanation of the administration’s opposition to Section 516 fails on its own terms. Non-federal officials can already disapprove certain National Guard operations in Title 32 status, regardless of whether the Guardsmen are performing their duty on federal property, because, as noted above, Section 502(f) deployments require the consent of the state or territorial governor whose National Guard forces are being deployed. In June 2020, multiple state governors availed themselves of this power and rejected Trump’s request under Section 502(f) to send their Guard personnel to Washington. As far as we know, no administration has ever suggested that a governor could be forced to deploy troops under Title 32, and the administration’s SAP does not appear to make this claim.

Moreover, the administration’s statement misunderstands the constitutional issue at play. Section 516 does not involve a question of state versus federal power, but rather codifies a constitutional rule about state versus state power (and extends it to apply to U.S. territories and the District of Columbia). Basic constitutional principles dictate that one state cannot deploy its National Guard troops into a different, unwilling state in Title 32 status, any more than it could if the troops were in SAD status. This is because every U.S. state is a sovereign entity. Like foreign sovereigns, their power is territorially defined. As the Supreme Court explained early in the country’s history, “the jurisdiction of a state is coextensive with its territory, coextensive with its legislative power.” It is a function of the states’ co-equal and territorially limited sovereignty that one state’s courts cannot reach into another and adjudicate the affairs of people living there unless they have sufficient “minimum contacts” with the forum state. For the same reason, one state cannot send its National Guard forces into another state without the latter’s permission. Put simply, U.S. states may not invade one another.

The Supreme Court has made clear that un-federalized National Guardsmen are state officers exercising state authority. Indeed, this is the reason why the PCA does not apply to National Guard personnel operating in SAD or Title 32 status—because these soldiers are not “part” of the federal armed forces. Guardsmen in Title 32 status cannot freely operate in another state without its consent, no matter who requested their presence or who is paying them, just as a state court could not exercise jurisdiction over another state’s citizens solely because the president had asked them to and Congress will pay the judge’s salary. This is true even if the Guardsmen are being sent into the other state to perform their duty on federal property located there. If doing so means that the Guardsmen will be traveling across another, unwilling state’s territory, then the mission is beyond the sending state’s power.

Importantly, Section 516 would not affect the president’s ability to call the National Guard into federal service in appropriate circumstances. For instance, if there were an attack on federal property that exceeded the capacity of law enforcement to handle, the president could invoke the Insurrection Act and federalize the Guard. At that point, as noted, the president could deploy the Guard into any state or jurisdiction, with or without consent.

In sum, the Biden administration’s objections to Section 516 reflect a profound misunderstanding of both the current statutory framework and the constitutional principles at issue. The administration should rescind its opposition to the provision, and, if it fails to do so, Congress should give it no weight.

IMAGE: Members of the DC National Guard are deployed outside of the US Capitol in Washington DC on January 6, 2021. – Donald Trump’s supporters stormed a session of Congress held today, January 6, to certify Joe Biden’s election win, triggering unprecedented chaos and violence at the heart of American democracy and accusations the president was attempting a coup. (Photo by ANDREW CABALLERO-REYNOLDS/AFP via Getty Images)