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What are the criteria for deploying the National Guard for domestic purposes?
Executive summary
The National Guard can serve domestically under several legal authorities: state activation by governors for state missions; federal activation under the Insurrection Act and related statutes (including 10 U.S.C. § 12406) for rebellion, invasion, or to “execute the laws of the United States”; and Title 32 arrangements where the Guard is federally funded but under state control — each pathway has different consent and Posse Comitatus implications [1] [2]. Recent 2025 deployments and ensuing lawsuits show these authorities are contested in practice: federal officials have used §12406 and Insurrection Act justifications that governors and courts have challenged [3] [1].
1. Two chains of command: state control vs. federal control
The basic criterion for domestic Guard use is who orders and controls them. Governors traditionally activate the Guard for state missions (disaster relief, public order) under state authority; federal activation places units under presidential or Defense Department control with different legal reach. Title 32 occupies a middle ground where troops are federally funded but remain under state control, changing the legal rules about what they may do [2] [4].
2. The Insurrection Act and 10 U.S.C. § 12406: the legal “escape hatches”
Statutes dating back to the early 20th century — most notably the Insurrection Act and 10 U.S.C. § 12406 — are the primary statutory bases a president can cite to federalize the Guard and deploy troops to enforce federal law, suppress rebellion, or repel invasion. §12406 expressly allows the president to call Guard units into federal service to stop an “invasion,” combat “rebellion,” or “execute the laws of the United States,” but courts and commentators emphasize these are meant for extraordinary conditions [1] [2].
3. Posse Comitatus and the limits on using armed forces for domestic law enforcement
Posse Comitatus generally restricts use of the federal military to perform domestic law enforcement; the Insurrection Act is a statutory exception. Legal analysts and courts assess whether circumstances meet the Insurrection Act’s thresholds (e.g., rebellion, inability of civil authorities to enforce the law) before allowing federal troops to take law-enforcement roles, and judges have recently scrutinized whether 2025 deployments satisfied those criteria [1].
4. Consent matters — and has been litigated
Whether state consent is required depends on which statute and mechanism are used. Historical practice has been to seek governors’ cooperation; when the federal government bypasses state consent (by federalizing Guard units or using Title 10 active-duty forces), governors and state attorneys general have sued. The 2025 deployments led to multiple legal battles over whether conditions in cities met statutory thresholds for federalization and whether presidential orders violated federal-state comity [3] [1].
5. Operational distinctions: Title 10, Title 32, and State Active Duty
Those distinctions are operationally crucial. Title 10 active-duty forces are fully federal and subject to Posse Comitatus constraints absent an Insurrection Act exception; Title 32 troops are federally funded but remain under the governor’s control and often have broader domestic law enforcement roles; State Active Duty is purely state-controlled and not federal [2] [5]. Lawfare’s tracker highlights recent federal domestic deployments and shows increased use of Title 10 and federalized Guard missions for law-enforcement–adjacent roles in 2025 [5].
6. What courts and experts are asking: “Is this what the statutes were meant for?”
Legal observers and federal judges have asked whether riots, protests, or spikes in crime rise to the level of “rebellion” or inability of civilian authorities to enforce the law — the statutory predicates for federal military intervention. In several 2025 cases, judges found the administration’s rationale contested, with one ruling forbidding use of military troops for civilian law enforcement in California and criticizing the deployments as not fitting the statutes’ intended scope [6] [1].
7. Political context and institutional pushback
Beyond legal texts, political and institutional dynamics shape deployments. Governors and the National Governors Association have pushed back against perceived federal overreach into Guard missions and readiness, and some governors and state officials are scrutinizing Pentagon directives that influence Guard training and federal readiness [7] [4]. Media and Pentagon reporting also show internal Guard personnel voicing concern about new domestic roles [8].
8. Practical criteria distilled
From the sources: federal deployment typically requires one of the Insurrection Act/§12406 predicates (invasion, rebellion, or executing federal laws where civil authorities cannot), or a Title 32/other federal arrangement with state cooperation; the choice of authority determines whether Posse Comitatus applies and whether governors’ consent is necessary; these legal determinations are now being litigated and debated in federal courts and among governors [1] [2] [3].
Limitations: available sources do not provide a single, definitive checklist issued by a neutral agency; instead, the criteria are statutory and interpreted in court and policy disputes, and recent 2025 deployments show those interpretations are contested [1] [3].