Can state governors refuse federal orders to mobilize the Guard and what legal remedies exist?
Executive summary
The legal fight over whether a governor can refuse a federal order to mobilize the National Guard is active and unsettled: federal statutes give the president some unilateral authorities to federalize Guard forces (notably 10 U.S.C. §12406 and parts of the Insurrection Act), while other statutes and precedent recognize strong gubernatorial control under Title 32 and related provisions (32 U.S.C. §328 and §502(f)), producing conflicting legal views and a wave of court challenges in 2025 [1] [2] [3]. Courts have both blocked and allowed deployments in recent cases, and states have sued; remedies include immediate federal-court injunctions, district court rulings finding federalization unlawful, and appeals that can stay or reverse those orders [3] [4] [5].
1. The statutory battleground: competing federal authorities
Congress has given the president several statutory tools to call Guard troops into federal service. Advocates for broad presidential power point to 10 U.S.C. §12406 and related Title 10 authorities that the administration has invoked as permitting federalization when the president deems it necessary [1]. By contrast, Title 32 mechanisms and statutes such as 32 U.S.C. §328 and §502(f) allocate mobilization and deployment decisions to governors in many state-support missions, and the Brennan Center emphasizes that governors remain able to refuse requests for state-ordered Title 32 missions [2].
2. How courts are treating the conflict in practice
Federal courts in 2025 have split responses. Judges have issued injunctions blocking some deployments, and at least one judge found a federal deployment to Portland “likely unlawful” and later permanently blocked it, reasoning deployments exceeded presidential authority when not requested by the governor [3]. Other courts have stayed such rulings or permitted federal control in part, producing a patchwork of temporary and appeal-stage outcomes [4] [3].
3. Constitutional and statutory interpretation disputes
Legal commentators disagree about whether governor consent is legally required. Lawfare’s analysis contends that statutory history and 10 U.S.C. §12406 mean a governor’s consent is not a legal prerequisite for certain federalizations, and that the statutory language that orders “shall be issued through the governors” does not create a substantive veto right [1]. By contrast, scholars at institutions like the Brennan Center read the statutory regime and Title 32 framework to preserve significant gubernatorial control over when and how Guards are mobilized for domestic missions [2] [6].
4. Remedies available to governors and states
When a governor resists or when a president asserts federal authority, the primary legal remedies used in 2025 have been: (a) state-filed lawsuits seeking declaratory relief and injunctions to bar federalization or deployment; (b) emergency motions in federal district courts to block deployments; and (c) appeals to circuit courts and potentially the Supreme Court if certiorari is sought. These remedies have yielded mixed results—some district judges issued blocks, others were stayed on appeal—and litigation cycles continue [3] [4] [5].
5. Practical limits, political dynamics, and historical context
Historically, interstate federalization of state Guards without governors’ consent is rare; prior to 2025, the last comparable instance dated to the Little Rock crisis and Eisenhower’s 1957 action, underscoring how extraordinary recent events are [7] [8]. Political dynamics matter: governors and states have framed suits as defending state sovereignty and civil liberties, while the federal government frames deployments as necessary to protect federal personnel or enforce federal law—each side brings different factual narratives and possible political motives to court [9] [10].
6. Limits imposed by other statutes and doctrines
Plaintiffs have invoked the Posse Comitatus Act and separation-of-powers concerns when arguing federal troops were used for domestic law enforcement, and at least one federal judge concluded a prior deployment violated Posse Comitatus [4] [5]. The availability and force of these statutory constraints depend on how a court characterizes the mission and which title (Title 10 vs Title 32) governs the troops’ status [2] [5].
7. What this means going forward for governors, the White House, and courts
The 2025 litigation shows governors can—and have—used the federal courts to try to block deployments; those suits can achieve injunctions but are vulnerable to appeal and stays, and statutory ambiguities mean the Supreme Court may ultimately resolve core questions if circuits split [3] [1]. Governors seeking to resist federal orders currently rely on litigation, public political pressure, and relying on Title 32 frameworks to assert state control; the federal government is relying on Title 10 authorities and, in some cases, the Insurrection Act—each path invites more judicial review [1] [6].
Limitations: available sources do not mention any exhaustive final Supreme Court resolution as of the cited reporting; ongoing cases and appeals mean legal positions remain in flux [3] [4].