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What legal procedures and approvals are required to federalize a state National Guard unit for domestic law enforcement?
Executive summary
Federal law gives the president a clear statutory path to place state National Guard units into federal service—primarily under Title 10 (including 10 U.S.C. § 12406 and related Insurrection Act authorities)—and the National Guard Bureau and DoD have historically federalized Guard forces for domestic missions on at least ten occasions through 2025 (National Guard counts and a recent 2,000-person federalization are documented) [1] [2]. Courts, state governors, and legal experts disagree about limits: governors argue consent is required and have sued; DoD and some analysts say governors do not have a veto under the statutes the president has invoked [3] [4] [5].
1. How federalization is authorized: Title 10, 10 U.S.C. § 12406 and the Insurrection Act
The primary federal route is to call Guard members into federal service under Title 10, which transforms state-controlled Guard units into federally commanded forces; recent presidential action cited 10 U.S.C. § 12406 as the authority to federalize Guard personnel to protect federal functions and property [6]. Historically, presidents have invoked statutory authorities—including the Insurrection Act—to federalize the Guard in domestic crises; the National Guard Bureau’s count shows at least ten such federal mobilizations through 2025 [1] [2].
2. Who approves or implements the move: president, Secretary of Defense, and coordination with governors
The formal trigger is a president’s order; the White House directive in 2025 delegated identification and ordering of Guard units into federal service to the Secretary of Defense, while also directing coordination with governors and the National Guard Bureau [6]. The administration’s position, echoed by some commentators, is that the statute supplies the president the authority to federalize without a governor’s consent in qualifying circumstances [3].
3. The legal limits and courtroom battles: competing views and recent litigation
States and governors have contested federalizations in court, arguing such moves amount to commandeering state institutions and violate federalism principles and sometimes the Posse Comitatus Act; California and other states sued after the 2025 federalizations, calling some actions unlawful, and courts have issued mixed rulings including temporary restraining orders and appeals [4] [5]. Lawfare’s legal analysis stresses statutory and constitutional traditions that, in its view, do not give governors a veto over federalization to execute federal law [3].
4. Posse Comitatus, Title 32, and practical workarounds
The Posse Comitatus Act limits use of the federal military as domestic police; Guard forces in Title 32 status remain under state control and are not “federalized,” allowing them to perform certain domestic law-enforcement-support tasks without triggering Posse Comitatus constraints [7] [8]. Critics say Title 32 is a loophole that can be used to achieve federal aims while avoiding legal limits; defenders say it preserves state control while allowing federal funding and missions [8] [7].
5. Precedent and frequency: uncommon but not unprecedented
Although federalization without governor consent is rare, it is not unprecedented: DoD and National Guard histories document multiple federalizations for domestic missions, and official summaries note that a unilateral federalization without a governor’s permission occurred prior to 2025 and again in 2025 [2] [1]. Contemporary reporting notes deployments in several cities in 2025 that led to legal challenges and judicial orders limiting or pausing some deployments [9] [10].
6. Practical steps and approvals an administration typically follows
Based on recent practice, the sequence has included: [11] presidential memorandum or executive order invoking a Title 10/Insurrection Act authority (citing §12406 or related statutes); [12] delegation to the Secretary of Defense to identify and order Guard units into federal service; [13] coordination or notice to governors and the National Guard Bureau (as the White House directive in 2025 stated); and [14] potential federal deputization or task-force arrangements with law-enforcement agencies—steps that have nonetheless triggered court challenges [6] [5] [10].
7. What the sources do not settle and continuing disputes
Available sources do not provide a single judicially established boundary that resolves all disputes over when federalization is lawful versus when it violates the Constitution or statutes; instead, the record through 2025 shows active litigation, divergent legal scholarship, and contested factual claims about whether thresholds for rebellion, invasion, or inability to execute federal law have been met [3] [4] [5]. Experts and advocacy groups remain sharply divided over how broad presidential power should be in this arena [15] [7].
In short: statutory mechanisms (Title 10, §12406, and the Insurrection Act) enable federalization and DoD implements such orders, but governors, states, and courts have vigorously contested the limits—producing an unsettled legal landscape where practical implementation often proceeds amid litigation and political dispute [6] [4] [3].