The stability of the United States’ federalist system relies heavily on the principle that law and order is primarily a matter of state concern under the U.S. Constitution. State and local governments retain significant constitutional and operational powers that act as a crucial check against potential federal military overreach. The framers of the U.S. governance system sought a balance reflecting both the risks and the occasional necessity of domestic military deployment, ensuring that the federalist system remains undisturbed by unchecked federal military action. A key component of these state checks on federal military power involves the dual-status forces of the National Guard.

The Governor’s Veto: Refusal of Aid (Title 32 Status)

The National Guard is the sole branch of the military that serves both state and federal governments, acting as the modern incarnation of state militias. This unique structure provides state executives (governors) with a critical lever to resist federal policy objectives implemented through military force.

The National Guard operates under three statuses, two of which involve state control: state active duty and hybrid status.

• Hybrid Status (Title 32): This allows National Guard troops to carry out federal assignments and be paid by the federal government, while technically remaining under the command and control of their respective state governors.
• Exemption and the Check: Troops in hybrid status are not subject to the constraints of the Posse Comitatus Act (PCA), meaning they may perform federal missions, potentially including law enforcement activity, that are prohibited for active federal forces.
• Refusal of Aid: Crucially, troops cannot move into hybrid status without the approval of their state governor. This power allows the governor to refuse a deployment request, preventing the president from directly ordering National Guard personnel to duty under Section 502(f). For example, during civil rights protests in 2020, four states refused an attempted hybrid deployment ordered by President Trump. This refusal power prevents the president from having total power to void the PCA in that state.

Local Accountability and Legal Recourse

If the federal executive branch attempts to circumvent legal restrictions on domestic deployment or fails to uphold justice, the responsibility shifts to the local level to maintain the rule of law.

Citizens and states have mechanisms for legal recourse and oversight:

• State Criminal and Civil Liability: A soldier deployed domestically may face state criminal law if their actions are determined not to be reasonably within the scope of their federal duties. Similarly, if their conduct is unrelated to federal duties, they can be held liable under state civil law. A Ninth Circuit holding supports that a soldier performing an illegal act, which a reasonable soldier would recognize as illegal, is not immune from state prosecution.
• Section 1983 Claims: Citizens retain the right to bring a Section 1983 claim seeking monetary damages against state National Guard members who violate their constitutional rights, although the success rate of such claims may vary.
• State Oversight: Because National Guard troops operating under Title 32 (hybrid) status remain technical agents of their states, state laws restricting their conduct still apply. States can deploy their attorneys general or other law enforcement personnel to actively monitor the conduct of their National Guard troops.
• Ultimate Recourse: If federal executive officials fail to hold perpetrators of abuses accountable, it ultimately falls to the states, local officials, the media, and the American public to hold those perpetrators and those giving the orders accountable.

Call for State-Level Posse Comitatus Act (PCA) Reform

While federal law governs National Guard forces when they are federalized (Title 10 status) or performing federal missions (Title 32 status), governors currently retain vast authority over their Guard forces when acting in State Active Duty status.

• Absence of State-Level Checks: Currently, no state has adopted its own equivalent to the Posse Comitatus Act (PCA). Existing federal law does not substantively restrict how states may use their own National Guard forces for law enforcement purposes when they are in State Active Duty status, though state actors are still bound by the rule that they cannot violate constitutional rights or federal laws.
• Suggested Reform: Experts advocate that state legislatures should consider codifying principles similar to those found in the federal PCA. This action would establish that civilian authorities are, by default, responsible for domestic law enforcement, and military use must be subject to restrictions. State legislatures are also encouraged to set clear rules governing when out-of-state National Guard units are permitted within their borders.

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Sources

1. Excerpts from "Limiting the Military's Role in Law Enforcement.pdf - Brennan Center for Justice":
   ◦ This was the primary source detailing the constraints on the domestic use of military forces, specifically focusing on the National Guard's hybrid (Title 32) status.
   ◦ It provided the core argument that no state has adopted its own equivalent to the Posse Comitatus Act (PCA), and supported the recommendation that state legislatures should consider codifying similar principles to limit gubernatorial use of the Guard for law enforcement.
   ◦ It supported the claim that state laws (such as those providing legal recourse via Section 1983 claims) still apply to National Guard members in Title 32 status, as they remain agents of their respective states.
2. Excerpts from "The Authoritarian Playbook.pdf | Protect Democracy":
   ◦ This source established the context that when the executive branch fails to hold perpetrators of abuses accountable, accountability falls to the "states, local officials, the media, and the American people".
   ◦ It provided the conceptual framework of aggrandizing executive power and weakening checks and balances.
3. Excerpts from "Civil control of the military - Wikipedia":
   ◦ Used to support the foundational principle that the system of governance is structured on the subordination of the military to civil authority.
4. Excerpts from "Congress, Civilian Control of the Military, and Nonpartisanship.pdf - www.congress.gov":
   ◦ Used to reinforce the structure of civil control and the balance within the federal system.
5. Excerpts from "Trump Calls for Using US Cities as 'Training Ground' for Armed Forces in Unusual Speech to Generals | Military.com" and "Trump, Hegseth rally troops at rare meeting, rail against "woke" standards - CBS News":
   ◦ These sources provided the context for the specific controversies regarding domestic deployments, such as the deployment of the National Guard to cities and the need for governors to provide consent for Title 32 missions.
6. Excerpts from "Trump Creating 'MAGA Military' With Purge of Generals, Veterans Group Warns - Newsweek":
   ◦ Provided context on the political threats that necessitate strong state-level checks.