How have governors used National Guard deployments to respond to federal immigration operations?
Executive summary
Governors have used the National Guard both to cooperate with and to resist federal immigration operations, leveraging different duty statuses, lawsuits, and public orders to shape outcomes [1] [2]. The result is a patchwork of state responses—Republican governors often deploying Guard units to aid ICE under Title 32 or state orders, while Democratic governors have resisted federalization and litigated over presidential attempts to federalize forces [3] [4].
1. Governors as partners: using Title 32 and state orders to support federal immigration actions
Some governors have proactively placed Guard personnel in roles that assist federal immigration authorities, typically by maintaining state command while accepting federal funding under Title 32 or by deploying Guardsmen on state active duty to support operations at the border or in the interior [1] [3]. Reports show National Guard troops in at least 20 states—described as led by Republican governors—were authorized to assist ICE through Title 32 arrangements and state commitments, and some governors publicly pledged forces to support federal enforcement [1] [5]. Governors who send Guard members in this way can argue they preserve state control and avoid Posse Comitatus constraints while still enabling federal missions through federal funding and logistical support [2].
2. Governors as check: lawsuits, refusal, and demobilizations when the White House tries to federalize
When the administration has attempted to federalize Guards over gubernatorial objections, several governors fought back in court and in public, with litigation and demobilizations following conflicting orders [4] [6]. Oregon, California and Illinois resisted federalization of Guard troops intended to protect federal immigration operations; the troops were federalized over the governors’ objections and later some were returned to state service amid judicial rulings and appeals, including a Supreme Court decision that declined to overturn a lower court order in the Illinois case [4] [6]. Governors have used lawsuits as a blunt instrument to challenge presidential authority to federalize Guard units and to reclaim command and control over their forces [6].
3. Legal levers and limits: Title 32, Title 10, Insurrection Act and 10 U.S.C. §12406
Governors’ authority to accept or refuse Guard deployments hinges on legal distinctions: Title 32 or state active duty keeps Guards under gubernatorial control (even if federally funded), while Title 10 federalization places forces under presidential command—a step governors can resist and litigate [2] [7]. The administration has also relied on an obscure statutory route, 10 U.S.C. §12406, and other emergency authorities to federalize Guard troops for immigration-related missions—a rarely used power with historical precedents but subject to legal challenge and political controversy [8] [2]. Legal analysts note governors retain significant leverage: the president can request but not compel state governors to deploy Guard forces in many statutory contexts, and court disputes have become a primary forum for resolving those clashes [2] [7].
4. Political signaling and asymmetric responses across states
Deployments and refusals have become political signals: governors aligned with the administration have sent Guards to the border or interior to support DHS and ICE, framing the move as public-safety policy, while governors who oppose the federal approach have resisted or sued and framed federalization as unconstitutional overreach or a politicization of the Guard [3] [9]. Advocacy groups and legal organizations have responded sharply—some condemning Guard deployments as an abuse of power that endangers civil liberties and community safety, others pushing for statutory clarity to allow presidential action when governors “block” enforcement—making governors’ choices both operational and symbolic [5] [10].
5. Practical consequences: patchwork operations, demobilizations, and uncertainty
The interplay of cooperative deployments, refusals, and court rulings has produced a uneven on‑the‑ground picture: some states have Guard members actively assisting ICE operations under state or Title 32 authority, while in other places federalized troops were demobilized or remained the subject of litigation and appeals, creating operational uncertainty for both federal and state missions [1] [4]. Historical operations like Operation Jump Start show governors have also requested Guard support for border missions in the past, underscoring that cooperation is not new even as contemporary federalization disputes highlight tensions over command, legality, and the Guard’s traditional disaster-and-civil-support role [11].