No Need To Federalize State's National Guards, Leaders Say

National Guard leaders for four states, including one key battleground state, on Wednesday argued fiercely against putting the Guard under federal control to deal with any potential unrest related to the presidential election next week.

“There would be no added benefit of federalizing those Guard forces,” Army Maj. Gen. Jeff Holmes, adjutant general for the Tennessee National Guard, told reporters. “We can do more in the Title 32 [status] but under the governor’s control as commander-in-chief. 

“I cannot think of any scenario where we would recommend or ask for being federalized.”

General officers from the Nebraska, Washington, and Wisconsin National Guards also said that they saw no need for the Guard to be federalized in their state. 

President Trump’s increasingly heated rhetoric questioning the integrity of the election combined with sporadic and nationwide civil unrest related to the killing of George Floyd by police in June have raised fears that Nov. 3 may be marked by chaos — and, among critics, fears that the president may seek a disproportionately militarized response either to intimidate voters or to challenge the outcome should Democratic nominee Joe Biden appear to be winning. Trump offered a potential preview in June, when he used a controversial loophole to use National Guard units to clear protesters from Lafayette Square near the White House, and considered invoking the Insurrection Act to allow him to use active duty troops to quell the protests. 

Right now, National Guard units across the United States are preparing for a variety of support roles related to the election, including acting as poll workers in their civilian clothes and assisting state election authorities bolster their cybersecurity. Most state guards have been wary of being seen as enforcing polling security or managing unrest — although the Texas Guard on Monday said it was prepared to send up to 1,000 troops to five cities to “in support of civil disturbance operations.”

Guardsmen in Wisconsin “will not be responding to any civil unrest at the polling stations,” Army Brig. Gen. Robyn Blader said. “If there is any civil unrest, it will go through the normal 911 channels.”

“Federalizing” a given state’s Guard would mean that Trump would assume the role of commander-in-chief — but with limits. If a state guard is brought under what is known as Title X status, it is forbidden by the 1878 Posse Comitatus Act from practicing domestic law enforcement unless explicitly authorized by statute. 

Under what is known as “State Active Duty” status, the Guard remains under a governor’s control and can operate in a law enforcement capacity. That, in theory, keeps the Guard accountable to a state and its community — not the president. A third option, known as Title 32 status, leaves the Guard under a governor’s command but lets the federal government pick up the paycheck. 

The nuclear option would be for Trump to invoke the Insurrection Act, which stipulates that the president determine “as a result of a natural disaster [that] domestic violence has occurred to such an extent that the constituted authorities of the State or possession are incapable of maintaining public order.” In that instance, he could countermand a state’s governor and use both federalized National Guard troops and regular military forces for law enforcement purposes. 

The debate over whether to invoke the Insurrection Act is both recurring and deeply controversial. As lawlessness spread after Hurricane Katrina, President George W. Bush debated invoking the act, pressing Louisiana Gov. Kathleen Blanco to accept military law enforcement assistance and allow federalization of the state Guard. Blanco was unwilling to relinquish control to the president, out of practical concerns that it would smack of martial law and political fears that Bush would blame the state government for a failed response to the disaster. 

Broadly, the military has sought to downplay any role the Guard might serve in November and rejected any suggestion that it might be called upon to ensure a peaceful transition of power. Joint Chiefs Chairman Gen. Mark Milley insisted in an interview with NPR this month that there is “zero” role for the military in the event the Nov. 3 election results are contested. 

If anything, Guard leaders said Wednesday, they are preparing to help local law enforcement with traffic management in the event of any unrest. The Tennessee National Guard has plans to “backfill” highway patrol so that those officers can respond directly to potential unrest, Army Maj. Gen. Jeff Holmes said. 

All four said that so far, they have received no credible threats of violence at polling stations. 

Several cautioned that if it weren’t for unusual polling conditions created by the COVID-19 pandemic, they might not be helping with the election process at all.