The National Guard and the Militarization of DC: A Constitutional Crises?
Don McGregor (MG USAF -Ret)
March 20, 2021
Fox News recently published a story entitled Defense Secretary Austin overruled National Guard chief on keeping troops at Capitol: memo. To the average media watcher, this may appear to be a sensationalized article throwing fuel on the embers of an already charred military issue in our Capitol. But the story captures the growing and troubling divide between the Secretary of Defense (SecDef) and the Chief of the National Guard Bureau (CNGB) over the appropriate use of the National Guard. But, amid this distressing break in ranks, the story reveals a much larger and more concerning dilemma.
And it is what our founding fathers feared most.
Defining the Problem
The article references a defense memo—in military terms a “coordination sheet”—normally used to “concur or non-concur” on issues within the Department of Defense (DoD). In this instance, a policy coordinating memo from the SecDef requested an “Extension of NG [National Guard] support to U.S. Capitol Police” with an additional 2280 guardsmen to support the United States Capitol Police (USCP) security detail beyond March 12.
This type of request is not easy. It usually requires a stringent justifying rationale and reason that explains the request’s urgency. Each appeal is officially petitioned through a formal request for assistance (RFA) and sent to the DoD’s executive secretary where it is staffed for coordination—an arduous process involving rigorous approval criteria that can take weeks.
And here is where the problems begin.
The latest USCP request to extend the NG support was not only hastily coordinated (2 days) but also failed to give a convincing case for approval. Laying out its rationale to the DoD, the USCP referenced the Department of Homeland Security’s (DHS) National Terrorism Advisory System, particularly the January 27 threat bulletin, as the chief reason for the augmented security support.
The bulletin summary describes a “heightened threat environment” using words like “believes” or “suggests” that “ideologically-motivated violent extremists [domestic violent extremists (DVE)] …could continue to mobilize to incite or commit violence.” The bulletin goes on to link without evidence the El Paso, Texas DVE attacks in 2019 to the Capitol riots, saying “Some DVEs may be emboldened by the January 6, 2021 breach of the U.S. Capitol Building”—a dubious threat association that has no place in the USCP RFA.
The problems do not stop here.
Federal statutes and defense directives come into play when the military is used in direct support of law enforcement, which is the case here. Posse Comitatus and section 275 of Title 10 USC are federal laws limiting the powers of the federal government using service members to “execute the laws” including “search, seizure, arrest, or other similar activity.”
What is more, the DoD’s Defense Support for Civil Authorities (DSCA) directive provides ruling guidance for any DSCA support. The defense regulation has six approval criteria to “examine” and “assess” the need for support. If we use the regulation’s six criteria (Legality, Lethality, Risk, Cost, Appropriateness, and Readiness), a legitimate argument can be made that any one of them would disqualify the USCP application—a troubling DoD miscue.
Yet, as disturbing as this is, it is not the larger concern.
What the Founding Fathers Feared Most
General Hokanson’s non-concur (dissent) to the USCP demand gave two reasons: (1) the NG is already maxed out with supporting COVID relief, natural disasters, civil disturbance operations, and ongoing overseas deployments and (2) to involuntarily activate the NG for any DoD mission, the SecDef must have the governors’ consent. Yet, as the memo mentioned, “numerous Adjutants-General and Governors have expressed their unwillingness to order the involuntary mobilization of NG personnel to man the mission.”
Leading us to the grander dilemma.
Within the Fox News article is a related story claiming that the DoD is reportedly considering issuing involuntary activation orders to keep the National Guard troops stationed at the U.S. Capitol. The problem with this is that the SecDef possesses no legal authority to involuntarily activate the NG in a Title 32 status. Any attempt would be unlawful and create a constitutional crisis.
In accordance with Title 32 law, the secretary can request, from the governors, NG members to perform “other duty” in “support of [SecDef] operations or missions.” But the Secretary cannot order them to perform “other duty” in “support of [those] operations or missions…” Only a governor can order a non-federalized NG member to perform duty. To avoid the need for governors’ consent and Posse Comitatus restrictions would require an Insurrection Act declaration—a rare Presidential decree allowing federal troops to quell rebellion and enforce laws but only in dire situations.
Based on current threat assessments, this action would be unwarranted.
If attempted, the SecDef’s indiscriminate act would constitute an illegal end-run around Posse Comitatus and congressional legislative powers. The SecDef would have to ignore Congress’s constitutional authority under Article I to “make all laws”, including Posse Comitatus, section 275 of Title 10, and the exception to these laws, the Insurrection Act. Furthermore, the Defense Secretary’s action would encroach on Congress’s constitutional power of the purse by spending money on unlawful purposes, a “purpose of obligation” or fiscal offense under the Purpose Statute and Anti-Deficiency Act.
So, what conditions or threats justify creating a constitutional quandary?
Are the circumstances in DC serious enough to push a defense secretary to breach the law or a president to invoke a rarely used insurrection law? Is there a legitimate threat assessment with evidence of groups mobilizing to incite or commit violence—not merely to ‘suggest’ or ‘believe’ in such sedition? Have there been any violent or anarchist actions since January 6 to justify the extreme need for involuntarily activating our guardsmen?
An obvious lack of evidence would tell us no…so, where does this bring us?
General Hokanson is sending a subtle message to the SecDef warning him of his impending missteps. The risk the DoD is taking, either by attempting to involuntarily activate the NG in Title 32 without the governors’ consent or by ordering them to “execute the laws” without an Insurrection Act declaration, sets a worrying precedent that undermines U.S. law and, more importantly, what our founding fathers feared most, the use of the military to control the people.
A serious but avoidable constitutional crisis.
The constitutionality of these acts threatens the long-term stability of the republic. Using the military to police the citizenry was anathema to our founders. It is, for example, the reason Article I of the Constitution grants Congress the power to “raise an army;” not maintain it. The founders knew that without these critical separations of authority, at some point the military might be turned on the people. A homogenized military force under the control of an unchecked federal government or a corrupted Congress would be the end of our constitutional protections.
The Founding Fathers designed the system to keep the standing military relatively small, distributing a substantial portion of the armed forces across the states (and later the territories and districts) in the form of a state-controlled, organized militia. The diffusion of military power among the sovereign states helps prevent the federal government from using the military to control the domestic population.
When governors are complicit in the coopting of their sovereign militia by the federal government, to be used as an illegal domestic police force (as is the case here), it distorts the vertical balance of power between state and federal governments. Further, it abdicates the states’ responsibility, granted by the Constitution, to protect the liberties and freedoms of their citizens.
The defense secretary is ignoring the law, circumventing regulations, and potentially spawning an unnecessary constitutional crisis—a decision that should strike fear into the hearts of freedom-loving Americans. What our founding fathers feared most was a president or military chief indiscriminately coalescing military forces to police its citizens—just one of history’s tragic paths to tyranny and oppression.
Donald McGregor, Major General, U.S. Air Force, Retired, is an accomplished national security leader, fighter pilot and career Air Force Officer with a diverse career, and expertise in Homeland Defense and National Guard issues. He was a former lead advisor to the Chief of the National Guard Bureau, who is a member of the Joint Chiefs of Staff. In this lead advisor role, he was the National Guard’s Director of Strategy, Policy, Plans, and International Affairs, developing overall strategy, Secretary of Defense (SECDEF) policy, and civil support planning for the National Guard’s warfighting, homeland, and international partnership missions.
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