National Guard 101 – The Legal Basics of our Unique Service

By Miguel Alejandro Laborde

Miguel Alejandro Laborde is a former NCO in the 160th SOAR (A), and a subject matter expert on defense aviation programs, capabilities and platforms, with decades’ worth of experience in the aerospace industry supporting the joint force. 

One of America’s most flexible tools of military power and capability – for defense of the nation abroad and in supporting domestic missions at home – is the U.S. National Guard. Composed of elements from both the Army and Air Force, our National Guard is a unique entity in our arsenal of national power and emergency response. That said, despite the positive presence of the Guard across all 54 states and territories, and widely held public understanding of the Guard’s patriotic contributions to the country, the exact structure of the National Guard and the legal authorities that it operates under are not as broadly known.

U.S. National Guard

2020 and 2021 saw record deployments of Guard forces across the nation for a wide variety of missions, from border security to covid-19 response, to quelling civil instability. And, we may be seeing more of that now in 2022. Recognizing the growing role that the Guard has played in so many enduring aspects of current American life, a refreshed understanding of the various legal authorities that allow the National Guard to be activated and deployed may be of increased importance to the citizenry.

The National Guard operates under three different legal authorities – State Active Duty, Title 32 National Guard Duty and Title 10. Each of these duty status types is largely determined by how the Guard is activated or requested for activation for specific missions, how that duty is paid for, and under what governmental command Guard units operate.

At the most local level, a Governor can activate National Guard units or personnel to “State Active Duty” (SAD) for things like natural disasters, or other domestic operations. SAD is predicated on State statute and policy and under this status, Guard expenses are covered entirely by State budget funding – no federal money is used for Guard operations. Moreover, Guardsmen and women remain entirely under the command and control of the Governor under SAD.

The next type of status is under Title 32 of the U.S. Code. Title 32 gives the President or the Secretary of Defense the authority to put the National Guard in full-time duty status under the command and control of the Governor – but their state mission is federally funded, rather than funding from State coffers. This activation status has often been in support of major natural disasters or similar wide-arcing crises in the homeland where the deployment of Guardsmen and women is for extended duration. Most importantly here, Title 32 activation requires a request from a Governor with approval from the Department of Defense.

Lastly, the third status falls under Title 10 of the U.S. Code – Active Duty under Federal government missions. This status essentially gives the President the authority to “federalize” National Guard units. Under Title 10 authority, Guard units can be called into Federal service, ordered to active duty with command and control over units transferred to the President from State Governors. It is Title 10 that is the primary statutory title that authorizes the National Guard to be activated for military operations abroad.