Today’s National Guard plays dual roles as both a continuation of the earlier state militias and the primary combat reserve of the U.S. Army and Air Force. The Guard protects life and property in our communities and deploys overseas to defend our national security. 

Each state’s National Guard operates under state-specific laws and a network of federal legal authorities that curtail the Guard’s use by the federal government. Those restrictions on federal use of the Guard have been placed under immense strain in recent years, blurring the line meant to separate the armed forces from law enforcement.

National Guard Authorities

The Constitution makes the president the Commander-in-Chief of our armed forces, but Congress has passed statutory constraints on domestic deployment intended to prevent the chief executive from abusing the awesome power of the military on American streets. These laws reflect long standing American wariness, dating back to the Declaration of Independence and reflected in the Constitution, around domestic use of the military. The most important of these laws is the Posse Comitatus Act of 1878, which prohibits the president from using the U.S. military for law enforcement purposes.

As a patchwork of state and territory-based militias, the Guard has a unique structure: it is the only branch of the U.S. military that has both state and federal responsibilities, and, as a result, the National Guard can be controlled by the governor or the president, depending upon its deployment status. There are three types of National Guard deployments:

State Active Duty (SAD) status

Under SAD, the National Guard carries out state-defined missions at the state’s expense and serves under the command and control of the state or territory’s chief executive. In these operations, state law determines in what manner a governor can deploy Guard forces. (The Posse Comitatus Act only applies to the president’s use of federal forces.) SAD deployments often occur in response to emergencies, civil disturbances, and other reasons authorized by state law, and are historically the most common form of National Guard deployment. Past examples include the responses to the Oklahoma city bombing in 1995 and the Los Angeles wildfires in 2025.

Title 32 (or “hybrid”) status

The Guard can be deployed in a hybrid status under Title 32 of the U.S. Code for state-based and some federally-defined missions, which are often training exercises. While still under the command and control of their governor or chief executive, National Guard personnel operating in Title 32 status are paid by the federal government and receive federal benefits. Troops under Title 32 status are generally not subject to the Posse Comitatus Act because they remain under their governor’s command, not the president’s.

Past, non-training uses of Title 32 status have included providing post-9/11 airport security, conducting relief operations after natural disasters such as Hurricane Katrina, and providing support to U.S. Customs and Border Protection at the U.S.-Mexico border. Several states have deployed Guard personnel operating in Title 32 status to Washington, D.C. to further the Trump administration’s purported crime-fighting agenda, while Tennessee Governor Bill Lee has utilized Title 32 to deploy members of his state’s National Guard to Memphis as part of a Trump administration-initiated task force similarly tasked with reducing crime. However, states cannot lawfully deploy their National Guard under Title 32 status into another state over the latter’s objection. 

Title 10 status

When called up under Title 10 of the U.S. Code, National Guard units are “called into federal service” — or “federalized” — by the president, and placed under federal command and control just as if the Guard personnel were members of the regular armed forces. As a consequence, federalized National Guard personnel are bound by the Posse Comitatus Act unless a statutory exception applies, such as the Insurrection Act. One notable past use of Title 10 authority was President Eisenhower’s 1957 federalization of Arkansas National Guard troops in Little Rock to enforce desegregation. President Trump has invoked Title 10 in multiple instances to deploy or attempt to deploy federalized Guard personnel to American cities, under the guise of protecting federal property and personnel.

Notably, in the District of Columbia, unlike in every other state or federal territory, the National Guard is always under the command and control of the president, even when not federalized. This arrangement is a holdover from before D.C. had its own government. As a result, the White House asserted questionable authority to deploy the D.C. Guard for law enforcement purposes without following the procedures under the Insurrection Act.

Regardless of deployment status, the National Guard must always comply with the U.S. Constitution: Their conduct must always respect and avoid infringing upon civil liberties, including but not limited to the freedom of speech, assembly, and association.

National Guard domestic deployment authorities have been politicized and abused in recent years

During his first term, President Trump sought to expand the domestic use of the National Guard — in unprecedented and unlawful ways. This dangerous trend has escalated dramatically in his second term. At the same time, governors have deployed the Guard for increasingly novel purposes that strain their traditional state role of disaster response and managing civil unrest.

As of Nov. 2025, Guard personnel under direct federal control have been deployed or directed to deploy to Los Angeles, Washington, D.C., Portland, and Chicago over the objections of state and federal leaders, the Tennessee National Guard has been deployed to Memphis under state control at Trump’s urging, and the president has threatened to deploy the military to several other American cities led by his political opponents.

Protect Democracy filed amicus briefs on behalf of former senior national security leaders highlighting the dangers of politicizing the military and domestic deployments in litigation arising from the deployments to Los Angeles, Washington, D.C., and Chicago.

Recent National Guard deployments have raised a series of complex legal questions surrounding domestic use of the military. As they have done in recent months, courts should continue to clearly enforce statutory and constitutional limitations on domestic deployment authorities and permissible conduct by deployed personnel. States also have extensive authority under our federalist system to mitigate future abuses through state legislation regulating deployments and conduct of personnel on their soil.