Under what circumstances can state governors authorize National Guard arrests and detentions?
Executive summary
State governors can authorize their National Guard to detain or arrest only when the Guard is serving under state control—typically State Active Duty or Title 32 status—and acting under state law or direct gubernatorial orders; federal Title 10 status generally bars Guard personnel from performing core law‑enforcement functions like arrests, absent narrow statutory exceptions such as an Insurrection Act invocation or other federal law specifically authorizing it [1] [2] [3]. Recent 2025 deployments and court battles show those boundaries are contested in practice: courts have blocked or limited federal deployments that exceeded statutory authority, and Justice Department filings and news outlets disagree over how broadly Guard law‑enforcement roles can be read [4] [5] [2].
1. How duty status controls arrest powers — the legal hinge
The key determinant of whether Guardsmen can make arrests is their duty status: when the Guard is on Title 32 (state control with federal pay) or State Active Duty, governors retain authority to assign law‑enforcement support roles, and courts and reporting have treated Title 32 as permitting some law‑enforcement activity; by contrast, Title 10 federalization generally prohibits Guard members from core law‑enforcement functions such as arrests under Posse Comitatus principles [2] [1] [6]. Reporting on the Washington, D.C., mission noted troops were on Title 32 orders, which “meaning[ed] they are authorized to conduct law enforcement activities,” while a WGN explainer emphasized Title 10 Guardsmen “cannot arrest people” except in very narrow safety or interference situations [2] [1].
2. Governor authority versus presidential/federal authority — a contested border
Governors can deploy their state Guards to perform security, patrols, and in some cases detentions under state law; however, when the federal government seeks to federalize or deploy Guard forces without gubernatorial consent, state sovereignty and statutory limits can block or constrain arrests and detentions. Multiple 2025 lawsuits and injunctions illustrate courts policing the line: a federal judge ordered a halt to a national Guard deployment to D.C., finding the administration “exceeded the bounds of [its] statutory authority,” showing judicial enforcement of those boundaries [4] [7]. Movement Law Lab and League of Women Voters analyses highlight legal disputes when the White House sought to federalize Guard units or use them in law‑enforcement roles without governors’ consent [3] [6].
3. Federal exceptions and statutory tools — Insurrection Act and Title 32 nuance
The Insurrection Act is the principal statutory exception allowing the president to deploy troops for domestic law enforcement by temporarily suspending some Posse Comitatus constraints when there is an invasion, rebellion, or inability of state authorities to enforce the law; Movement Law Lab explains invoking the Insurrection Act can temporarily permit military law‑enforcement functions [3]. Separately, Title 32 §502(f) has been argued by Justice Department attorneys to allow the president to direct certain “other duty” assignments for Guardsmen under Title 32 in specific circumstances, a contention contested in court filings and media coverage [5] [2].
4. Courts, DOJ, and watchdogs disagree on scope — competing viewpoints
The Justice Department has argued the Guard could legally make arrests or otherwise support law enforcement in some recent deployments, claiming Title 32 language and support roles permit such functions; at the same time, courts have issued injunctions finding administrations exceeded statutory authority, and advocacy organizations caution against broad federalization of the Guard for policing [5] [4] [3]. News outlets reported that DC Guard troops were placed on Title 32 to allow law‑enforcement activities, while at least one federal judge found such federal actions unlawful in that instance — showing active legal disagreement over the reach of statutory language [2] [7].
5. Practical limits: training, rules of engagement, and mission scope
Even where legally authorized, Guardsmen typically serve in “support” roles and official filings and news stories emphasize they “have not engaged core law‑enforcement functions” in practice; commanders often restrict arrests, searches, and seizures to civil authorities unless specific orders or legal authority are provided [5]. Local officials and governors also play pragmatic roles: governors can withhold consent to federalization, courts can block deployments, and public backlash or legal challenges can curtail missions — as seen when Tennessee and D.C. deployments were litigated in 2025 [8] [4].
6. What this means for citizens and policymakers
For citizens, the operational takeaway is straightforward: authority to arrest or detain flows from legal status and orders, not simply the physical presence of Guardsmen [1] [2]. Policymakers should expect continued litigation and political pushback whenever federal or state executives attempt expansive uses of the Guard for domestic policing; recent 2025 cases show courts will weigh statutory text, state sovereignty, and the Posse Comitatus implications before allowing arrests by military‑affiliated personnel [4] [3].
Limitations: this summary uses the provided reporting and legal analysis fragments; available sources do not mention every statute or court opinion in full detail and do not provide definitive legislative text for every cited provision [1] [5].