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- By Professor Victoria Sutton
The military, the National Guard, the states and the federal government in a complex sovereign relationship
Guest Opinion. The National Guard is typically thought of as the militia for the state with the state governor in command, often called out for natural disasters — floods, earthquakes, hurricanes and tornados — to help with recovery efforts. Each state constitution describes the governor’s powers in an emergency which are often carried out by Executive Order. Governors exercise this power through the state adjutants general.
Title 10 vs. Title 32
However, you may recall historically, a few states with their own militias decided to secede from the Union in 1860 and thereafter, each state commanding its own militia with no federal option, did not seem like a good idea. Federal statutes ensure that there is always the option of a federal command of state militia. Title 32 of the U.S. Code provides that the governor of a state can activate the National Guard in their state with consultation with the President, and it is paid for by the federal government. Title 10 of the U.S. Code is the authority for an order from the President to be under federal control and this can be either within the United States or outside the U.S.
When do you use Title 10?
The President will wait for the governor to officially ask for assistance with deployment of the National Guard using federal funding. However, on rare occasions, the President can deploy the National Guard without the governor’s permission when the disaster has damaged the state governance structure so that it is not functioning to protect the citizens. The last time this happened was in 1965 when President Lyndon B. Johnson federalized the National Guard of Alabama to protect civil rights marchers in Selma.
On August 29, 2005, Hurricane Katrina hit New Orleans and submerged 80% of the city underwater. The governance structure was disrupted and people were struggling to survive. There was rumor that the federalization of the National Guard over the objection of the Democrat governor was needed, yet President Bush held back because he did not want to violate the sovereignty of the state and the constitutional federalism relationship between states and the federal government. This caused widespread criticism of the President for not sending help soon enough, although the press overlooked this requirement for a governor to first ask.
So too, in the “summer of love” when Minnesota was on fire from rioting in the aftermath of the George Floyd incident, President Trump was reluctant to send in a federalized National Guard to provide support for the law enforcement personnel. Fortunately, a few city mayors with Gov. Walz activated the National Guard under Title 10 on May 28, just a few days after the George Floyd incident. However, federal buildings were being threatened by the rioters which would have given the President authority to take steps to protect federal personnel and property. President Trump’s Secretary of Defense confirmed there had been no request from Gov. Walz for federal support. Yet, law enforcement were told to stand down under the governor’s command on at least one notable occasion with the burning of a police precinct station. The 500 million dollars in damage to the city resulted and it is still to recover.
This failure in Minnesota may have been on the mind of President Trump when he signed the Executive Order to federalize the National Guard to save the City of Los Angeles from rioting in response to the Trump Administration’s policy of enforcing immigration laws. The governor of California, Gov. Gavin Newsom, objected to President Trump exercising the Title 10 federalization of the National Guard, saying it was “unwarranted” and “exceeded his Title 10 authority,” on June 9, 2025. On that basis, he vowed to sue the Trump Administration in federal court.
On June 19, 2025, the U.S. Court of Appeals, Ninth Circuit, opined in favor of the Trump Administration, reversing the temporary restraining order (TRO) entered by the federal district court in favor of California, and entering a stay against the TRO. The federal court found the decision of the president should receive deference and that it was likely that the defendants would succeed on the merits of that decision to order a Title 10 command of the National Guard. The complaint by California that the order had to be made through the governor of California was met by the adjutant general who has the authority to enter an order for the Governor of California, did so, meeting the statutory requirement. Further, the limited nature of the Title 10 federalization of the National Guard to protect federal personnel and federal property also favored the successful outcome for the Trump Administration. The Governor of California has vowed to continue the litigation.
In addition, the military was also deployed to assist ICE in enforcing immigration law, and in one instance the Marines detained a man temporarily and handed him off to personnel from the Department of Homeland Security. According to Reuter’s news, a spokesperson for the U.S. military's Northern Command spokesperson said active duty forces:
"may temporarily detain an individual in specific circumstances. . . Any temporary detention ends immediately when the individual(s) can be safely transferred to the custody of appropriate civilian law enforcement personnel," a spokesperson said.
Following the opinion from the Ninth Circuit, U.S. Court of Appeals, Judge Breyer, who had been reversed by the Ninth Circuit opinion, not giving up, asked attorneys for the parties to brief the question of whether Posse Comitatus had been violated and whether a federal district court or appellate court could enter an injunction under the Posse Comitatus Act.
Next week, in unintended consequences, the Posse Comitatus Act will be discussed.
To read more articles by Professor Sutton go to: https://profvictoria.substack.
Professor Victoria Sutton (Lumbee) is a law professor on the faculty of Texas Tech University. In 2005, Sutton became a founding member of the National Congress of American Indians, Policy Advisory Board to the NCAI Policy Center, positioning the Native American community to act and lead on policy issues affecting Indigenous communities in the United States.
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