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Fact check: What is the legal authority for National Guard deployment on federal property?
Executive Summary
The core legal authority commonly cited for placing National Guard members on federal duty is 10 U.S.C. § 12406, which allows the President to call Guardsmen into federal service in limited circumstances — invasion, rebellion, or when regular forces cannot enforce the laws — and has prompted disputes about the Governor’s role and required procedures [1]. Recent actions and litigation in 2025 spotlight competing interpretations over whether the Defense Department can federalize Guardsmen by communicating directly with adjutants general without clear state concurrence, and whether statutory text or historical precedent constrains that practice [1].
1. Why 10 U.S.C. § 12406 is at the center of the fight over federalizing the Guard
Congress codified specific authority for presidential calls of the National Guard into federal service in 10 U.S.C. § 12406; the statute enumerates narrow triggers — actual or threatened foreign invasion, actual or threatened rebellion, or inability to enforce laws with regular forces — giving the President a statutory path to federalize Guard members [1]. Legal commentators and litigants now question whether the statute contemplates direct DoD-to-adjutant-general memoranda or requires a governor’s formal concurrence or a different procedural chain, an issue raised by recent lawsuits alleging bypass of Governors in California and other states [1]. The statute’s text, however, remains the touchstone for courts assessing any alleged process violations [1].
2. Litigation and allegations: Governors claim bypass, DoD points to statutory triggers
California’s lawsuit asserts the Pentagon unlawfully bypassed the Governor by sending a memorandum to a state adjutant general calling troops into federal service without appropriate consultation, arguing that this step may lack historical support and legal grounding in the statutory scheme [1]. Critics point to memos used in 2025 to federalize units for domestic operations in Portland and Los Angeles as concrete examples where process and precedent collide, and legal scholars highlight the tension between statutory triggers in §12406 and modern administrative practices used by the Defense Department [2] [1]. Both sides frame the dispute as a structural test of federalism and military authority.
3. Congressional responses: “Defend the Guard” and efforts to recalibrate deployments
In reaction, lawmakers introduced the “Defend the Guard” bill to redefine federal deployment powers, seeking to require congressional approval for certain overseas deployments and to tighten the conditions under which federalization can occur [3]. Proponents argue the bill restores state control and prevents executive overreach when Governors object, while opponents warn new constraints could hamper rapid federal responses to emergencies. The push for legislative change underscores that statutory interpretation controversies are inviting political remedies that would alter the balance between state governors and federal authorities over the Guard [3] [1].
4. Practical mechanics: memos, adjutant generals, and the ambiguity of practice versus text
Practices in 2025 involved Defense Department memoranda directed to state adjutant generals to activate units, raising questions whether procedural norms match statutory text or merely reflect administrative convenience [2] [1]. Where §12406 sets the legal triggers, it does not lay out every administrative step, producing a gap filled by habit, DoD guidance, and intergovernmental communications. Courts reviewing such actions will weigh the statutory language, historical practice, and whether governors’ rights under state and federal law were respected, with factual records about communications and approvals becoming decisive [1] [2].
5. Competing narratives: national security necessity versus state sovereignty
The federal executive frames federalization under §12406 as a tool for national security and law enforcement continuity when regular forces are insufficient, while Governors and state plaintiffs emphasize state sovereignty and constitutional guardrails against federal intrusion into state-controlled militia forces. These competing narratives are visible in both litigation and legislative debates: one side cites statutory triggers and emergency necessity, and the other cites historical practice and concerns about unilateral federal action without meaningful state consent [3] [1].
6. What to watch next: courts, Congress, and administrative clarifications
Expect litigation to clarify whether the Defense Department’s 2025 memoranda comport with §12406’s text and whether procedural bypasses of governors are legally fatal; court rulings will analyze statutory language, factual records of communications, and precedent about federalization [1]. Simultaneously, Congress may pursue the “Defend the Guard” route or narrower statutory fixes to explicitly allocate authority and procedural steps for federalizing Guard units, while DoD could issue administrative guidance to reduce disputes. The legal and political outcomes over the next months will determine whether current practice persists or is significantly constrained [3] [1].