{"id":29155,"date":"2023-07-06T18:15:47","date_gmt":"2023-07-06T18:15:47","guid":{"rendered":"https:\/\/one.sightlinemg.com\/federaltimes\/uncategorized\/2023\/07\/06\/court-ruling-could-overturn-federal-control-of-the-national-guard\/"},"modified":"2026-08-08T04:11:44","modified_gmt":"2026-08-08T04:11:44","slug":"court-ruling-could-overturn-federal-control-of-the-national-guard","status":"publish","type":"post","link":"https:\/\/one.sightlinemg.com\/federaltimes\/federal-oversight\/2023\/07\/06\/court-ruling-could-overturn-federal-control-of-the-national-guard\/","title":{"rendered":"Court ruling could overturn federal control of the National Guard"},"content":{"rendered":"\n

Who owns the National Guard? It\u2019s complicated.<\/p>\n\n\n\n

A recent court ruling in Texas could complicate matters further. The stage is set for a fight over control of the Guard \u2014 and this time, the states have the upper hand.<\/p>\n\n\n\n

For more than a century, the federal government\u2019s authority over the National Guard has steadily increased, as has its usage overseas.<\/p>\n\n\n\n

States, who once held near-total control over their militias, sacrificed autonomy on the altar of a federal financial firehose, which gave the Defense Department leverage to shape the Guard in the image of its full-time counterparts. In return, governors now have highly trained forces at their disposal for missions at home, and they\u2019re using them more often than ever<\/a>.<\/p>\n\n\n\n

Both sides have benefitted from this deal since 1990, when the Supreme Court unanimously decided the last major legal battle in favor of the DoD.<\/p>\n\n\n\n

But the deal may soon be dead, experts say, after a recent court ruling in Texas Gov. Greg Abbott\u2019s legal fight against the Pentagon\u2019s COVID-19 vaccine mandate.<\/p>\n\n\n\n

Army Times reviewed court documents, researched historical cases and spoke to legal scholars about the ruling, the ongoing legal battle, and its potential impact on the Guard.<\/p>\n\n\n\n

\u201cWhat the ruling essentially says is that state compliance with federal guidelines is completely voluntary,\u201d said Jeff Jacobs, a retired Army Reserve two-star general, attorney and author of a 1994 book analyzing the Guard\u2019s dual control structure. \u201cAnd the only recourse the federal government has \u2014 because Texas did not dispute this \u2014 is to withdraw funding for [the state\u2019s] National Guard.\u201d<\/p>\n\n\n\n

Jacobs warned this decision at its \u201clogical conclusion\u201d allows governors to block military personnel requirements, offering free rein to protect non-federalized Guard members from military punishments for everything from marijuana use to fitness tests. But even under the ruling, troops must meet all federal requirements to join.<\/p>\n\n\n\n

\u201cIt gives the governor[s] a veto to play politics with every single thing that the Secretary of Defense or the Secretary of the Army or Air Force do,\u201d the retired general warned.<\/p>\n\n\n\n

Both the DoD and the National Guard Bureau declined to comment, citing ongoing litigation. In an emailed statement, Abbott spokesperson Andrew Mahaleris said the governor \u201cappreciate[s] the Fifth Circuit\u2019s adherence to the rule of law, and Texas will not stop fighting until the brave men and women of our military receive the full benefits they have more than earned.\u201d<\/p>\n\n\n\n

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An Air National Guard officer draws Moderna COVID-19 vaccine from a vial into a syringe at Bradley Air National Guard Base in East Granby, Connecticut, Dec. 30, 2020. (Staff Sgt. Steven Tucker\/Air Force)<\/figcaption><\/figure>\n\n\n\n

The Abbott administration, later joined by Alaska\u2019s governor, asked a federal judge<\/a> in Tyler, Texas, to block the DoD\u2019s vaccine mandate in January 2022.<\/p>\n\n\n\n

In court filings<\/a>, the governors claimed that \u201conly the state, through its governor, possesses legal authority to govern state National Guard personnel\u201d when not mobilized under federal control, regardless of who is cutting the drill checks.<\/p>\n\n\n\n

Responding to the governors, the federal government contended it has the authority to set readiness requirements and enforce them. They contended that in order to receive federal pay and federal benefits \u2014 even when in a state-controlled, federally-funded Title 32 status \u2014 members of the Guard needed to comply with federal readiness requirements.<\/p>\n\n\n\n

After in-person arguments in June 2022, U.S. District Judge J. Campbell Barker denied the governors\u2019 request for a preliminary injunction, a rare pre-trial declaration that would have blocked the vaccine mandate for Guardsmen nationwide.<\/p>\n\n\n\n

The Abbott administration appealed the denial to the 5th U.S. Circuit Court of Appeals, and the result could upend federal control of the Guard.<\/p>\n\n\n\n

A shot over the bow<\/h2>\n\n\n\n

Within the context of the case, the court\u2019s decision was minor, explained Jason Mazzone, a law professor at the University of Illinois Urbana-Champaign\u2019s College of Law.<\/p>\n\n\n\n

A panel of three appeals judges unanimously voted to vacate \u2014 or undo \u2014 Barker\u2019s denial of the preliminary injunction. The lower district judge must reconsider the matter in the months ahead, and final resolution could be years away.<\/p>\n\n\n\n

But when appeals courts vacate district court decisions, as the 5th Circuit did on June 12, they typically publish a legal opinion, a memorandum explaining their reasoning that provides legal guidance to lower courts about the issue. According to Mazzone and Jacobs, pre-trial opinions often foreshadow later decisions.<\/p>\n\n\n\n

The June 12 opinion<\/a>, written by U.S. Circuit Judge Andrew Oldham and signed onto in part by U.S. Circuit Judge Don Willett, left little to the imagination. Oldham, who was appointed by former President Donald Trump, ascended to the 5th Circuit on a 50-49 Senate vote in 2018. He spent the previous three years as an official lawyer for Abbott<\/a>, culminating as his office\u2019s general counsel.<\/p>\n\n\n\n

The panel\u2019s third member, U.S. Circuit Judge Carl Stewart, declined to join the opinion.<\/p>\n\n\n\n

\u201cThe President of the United States asserts the power to punish members of the Texas National Guard who have not been called into national service,\u201d Oldham said. \u201cThe Constitution and laws of the United States, however, deny him that power.\u201d<\/p>\n\n\n\n

The ruling overturned Barker\u2019s analysis for the lower district court<\/a>. Barker held that the federal government can withhold pay and punish members of the National Guard who refuse to comply with readiness requirements. That\u2019s because Guard troops hold simultaneous and overlapping, but legally distinct, memberships in their state\u2019s organized militia and the federal National Guard, Barker argued.<\/p>\n\n\n\n

But Oldham disagreed. He analyzed the Constitution\u2019s Militia Clauses, which were a 1780s power-sharing compromise between the federal government and the states. The states feared the potential tyranny of a federal government with a large standing Army, but the Federalists, who favored a strong central government, argued that Congress needed to defend the country.<\/p>\n\n\n\n

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Reenactors participate in a living history encampment for the 200th commemoration of the Battle of New Orleans in Chalmette, La., Jan. 9, 2015. (Staff Sgt. Scott Raymond\/Army)<\/figcaption><\/figure>\n\n\n\n

Under that bargain, the state militia had state-appointed officers and remained under state control on a day-to-day basis, though the federal government set their training standards. The central government also gained absolute power over the militia and its members if and when it was ordered into federal service to repel invasions or suppress insurrections.<\/p>\n\n\n\n

Oldham acknowledged that later laws established the National Guard as the organized state militias and increased the federal government\u2019s oversight and funding. But the government\u2019s proposed punishments for Guard members who refused the vaccine mandate \u2014 which Oldham said may still occur, citing Military Times\u2019 reporting<\/a> \u2014 \u201cunlawfully usurp Governor Abbott\u2019s exclusive constitutional authority to \u2018govern\u2019 the non-federalized Texas militia.\u201d That includes administrative actions like withholding pay and discharging troops.<\/p>\n\n\n\n

Jacobs, the retired Reserve general, said Oldham\u2019s reasoning could allow governors to defy any federal requirement they don\u2019t see fit to enforce on their state\u2019s National Guard.<\/p>\n\n\n\n

\u201cLet\u2019s say you can\u2019t pass a [physical fitness] test,\u201d Jacobs said. \u201cWhat Judge Oldham is saying is, \u2018Well, Department of Defense [and] Department of the Army, you have no authority to yank that soldier\u2019s recognition…[and] discharge him from the Army National Guard.\u2019\u201d<\/p>\n\n\n\n

The federal government can theoretically federalize an entire state\u2019s Guard<\/a> to undo a governor\u2019s orders, as President Dwight Eisenhower did in 1957 when the governor of Arkansas had deployed his troops to block Black students from integrating a school. But mass call-ups require significant political will, and Oldham noted that Biden appears \u201cunwilling or unable to do so\u201d to enforce the vaccine mandate\u2019s punishments.<\/p>\n\n\n\n

Responding to the federal government\u2019s argument that federal laws give it punishment options for non-federalized Guardsmen, Oldham implied such laws are unconstitutional. \u201cRegardless of whether the Government\u2019s reading of these statutes is correct, the Constitution forbids President Biden from bypassing the States, stepping into Governor Abbott\u2019s shoes, and directly governing Texas\u2019s non-federalized militiamen.\u201d<\/p>\n\n\n\t