THE NATIONAL GUARD IN TITLE 32 STATUS: HOW THE EXECUTIVE'S POWER BECOMES A CITY'S CRISIS.

• Author: Winnie, Kevin
• Position: National Guard Act of 1933

"In the environment in which Presidents must operate, it is not surprising that law' of any kind (the Constitution included) can easily become merely one more factor to be considered, or even an obstacle to be overcome. " Henry P. Monaghan, The Protective Power of the Presidency, 93 COLUM. L. REV. 1, 9 (1993). Introduction 1288 I. The National Guard: From State Militia to Federal Asset 1295 A. From Local Militia to Domestic Operational Force 1295 B. The Broad Modern Executive Use of the National Guard 1298 i. Title 32 Status: Procedural Requirements 1298 ii. The Executive's Modern Use of National Guard Units in Title 32 Status 1299 iii. The Executive's Broad Interpretation of Section 502(f) 1301 II. The Executive's Broad Interpretation of Section 502(f) will Prevail Over an Ambiguous Statutory Interpretation 1304 A. Principles of Statutory Interpretations Support a Limited Interpretation of Section 502(f) 1305 i. What is "Other Duty"? 1307 ii. Congress Provided Broad Authority to the Executive 1310 B. Given the Ambiguity behind Section 502(f), the Court will Defer to the Executive's Interpretation 1313 i. Curtiss-Wright Deference 1313 ii. Deference to the Executive's Interpretation on Section 502(f) 1314 III. The Problems with the Executive's Interpretation of Section 502(f) 1316 A. Executive's Control over the Title 32 Units Becomes a City's Crisis, Especially Washington D.C 1316 B. Governor's Consent is an Ineffective Check on the Executive's Section 502(f) Authority 1319 IV. Restricting the Executive's Power over the National Guard in Title 32 Status and the DCNG 1322 Conclusion 1325 INTRODUCTION

On January 6, 2021, the United States Capitol was breached and invaded for the first time since the British set the building ablaze during the War of 1812. (1) As far-right protesters raided and desecrated the halls of the Capitol, the nation watched as federal agents were overcome by the onslaught of this insistent mob. Despite both its status as one of the most protected sanctuaries in the United States and ample evidence that this was a planned invasion, (2) the Capitol was not adequately secured. During the entirety of this attack, the question arose: Where was the National Guard?

Although only a few miles away, the D.C. National Guard (DCNG) was assigned to traffic control, wholly unprepared for this right-wing invasion. (3) After the Capitol's security was breached, D.C. officials, members of Congress, and local law enforcement pleaded with the President and Department of Defense (DoD) to redeploy the DCNG to secure the Capitol. (4) The executive branch denied this request and also rejected calls by Governors of both Virginia and Maryland to deploy their National Guard units. (5) Meanwhile, the Capitol was ransacked by far-right rioters, which resulted in injuries and five fatalities. (6) Eventually, hours after the invasion initially began, the DoD would authorize the National Guard to assist law enforcement in securing the Capitol. (7)

The executive branch's response to these violent protesters stands in stark contrast to the June 2020 deployment of the National Guard to the Black Lives Matter (BLM) protest in Washington D.C. At the request of then-President Trump on June 2, 2020, several governors deployed their National Guard units to assist the federal government in safeguarding the capital during the public protests of the George Floyd murder. (8) By June 6, 2020, the National Guard's numbers in D.C. had increased to nearly 5,000 members from 11 states. (9) During this deployment, the National Guard used aggressive tactics to suppress these largely peaceful protests, which included flying a helicopter right above an active protest. (10) This use of out-of-state National Guard units was also in opposition to the wishes of Washington D.C. Mayor Muriel Bowser." This June 2021 deployment is distinct to January 2021, when Mayor Bowser pleaded with the executive (12) to deploy out-of-state units to protect the Capitol. (13)

The glaring dissimilarities between the deployments of the National Guard during each of these incidents reveal the executive's broad discretion to utilize these troops in opposition to local wishes. And yet, this executive authority is complicated considering the National Guard is innately a state entity under a state governor's control unless federalized by the executive branch. (14) Throughout these crises, the National Guard was not federalized, yet the executive's authority reigned supreme in deciding whether to use the National Guard. (15) Although the executive has direct authority over the DCNG, (16) the President does not have such control over out-of-state units, yet decided during each incident whether to authorize the use of out-of-state Guard units. The basis of this executive power to authorize and deploy the National Guard is found in one statute: 32 U.S.C. [section]502(f) (Section 502(f)). (17)

Section 502 does not ostensibly provide the executive an ability to deploy a state's National Guard until one closely reads subsection 502(f). (18) Although titled "Required drills and field exercises," which does not explicitly suggest the executive can use the National Guard in thwarting civil protest or insurrection, subsection 502(f) may provide a broad delegation of power to the executive. Pursuant to Section 502(f), "a member of the National Guard may... be ordered to perform training or other duty" under regulations by the Secretary of the Army or Air Force, which may include "[s]upport of operations or missions... at the request of the President or Secretary of Defense." (19) Based upon this power to request the National Guard, can the President authorize these troops to perform any mission or operation under Section 502(f)?

Examining their use of National Guard units under Section 502(f), the executive branch would seem to answer this question in the affirmative. The National Guard operating under Section 502(f) is in Title 32 status, in which the guard is controlled by their respective state yet funded by the federal government. (20) The executive branch, under both guidance from the DoD and the Department of Justice, (21) has utilized a broad interpretation of Section 502(f) to deploy the National Guard in Title 32 status to execute various operational missions on behalf of the executive branch. (22) Such operations seem far remote from the training seemingly described in Section 502. Operating under Section 502(f), the National Guard assisted in the aftermath of both the September 11 attacks and Hurricane Katrina, (23) and, more recently, provided assistance during the COVID-19 pandemic by establishing testing centers and administering the vaccine to state residents. (24) DoD instructions even cite Section 502(f) to authorize the National Guard to support "special events." (25) Based on this extensive use of the National Guard under Section 502(f), the executive's interpretation of this provision seems to be limitless in scope and unrestrained by any other statutory provision. (26)

Although flexible use of the National Guard can be helpful in responding to novel emergencies, President Trump's rhetoric and actions regarding the National Guard demonstrate a need for legal restraints on this broad executive power. In light of nationwide BLM protests, President Trump called upon governors to deploy their National Guard units to suppress protest in major cities and, if they did not, threatened to deploy the federal military. (27) On June 2, 2020, the White House ordered troops, including National Guard units, to clear BLM demonstrators protesting on Lafayette Square, (28) an event considered outrageous by former military personnel. (29) In the following days, Trump's threats would continue when, after protests erupted over another shooting in Kenosha, Wisconsin, he threatened to send the National Guard into the city. (30) Although President Trump did not state under which authority he would do so, this Note argues that the President, under Section 502(f), could deploy out-of-state units to a city and disregard local objections. (31) President Trump's statements surrounding the National Guard did not indicate restraint in deploying these units, urging a need to investigate the extent of this executive power. Based on President Trump's more recent refusal to deploy National Guards units to the Capitol in January 202l, (32) granting the executive such broad discretion to reject the request of deployment is equally dangerous when lives are at stake. Given both President Trump's rhetoric and the executive's broad interpretation of Section 502(f), this Note challenges the executive's interpretation of Section 502(f) by investigating this statute's meaning through tools of statutory interpretation.

This Note also argues that to allow the executive's unrestricted use of the National Guard under Section 502(f) is a problem for local municipalities and citizens directly affected by such deployments. First, unlike the federal military, the National Guard under Title 32 status can conduct law enforcement activity. Such units are not subject to the Posse Comitatus Act (PCA), which prohibits the use of "the Army or the Air Force... to execute the laws." (33) Second, as there is no positive law to restrict the President in his use of Title 32 National Guard troops, the executive could send such forces into cities in opposition to local authorities. (34) While a governor's consent to use its National Guard in Title 32 status is legally mandated, (35) there is no law that requires the President to receive local permission prior to deploying out-of-state National Guard units into a municipality. This lack of restraints is particularly troublesome for Washington D.C. as the President has direct authority over the DCNG and can request out-of-state units into the capital. Finally, although state governors could theoretically provide an adequate limitation on the executive's use of...