Three Hats, One Soldier: The Complex World of National Guard Duty Status

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A man was walking toward the veterans’ campus in West Los Angeles on June 13, 2025, when he crossed a line of tape outside the Wilshire federal building. Marines detained him. He was put in zip ties and held for more than two hours by Marines and National Guard members, then released without charges after Los Angeles police arrived. The man, an Army veteran, was the first civilian detained by federal troops in that deployment.

Whether soldiers may do that depends on which of three hats the Guard is wearing.

The same soldier, on the same corner, has different powers over you depending on who signed the order: under a governor the Guard may police civilians if state law allows, and in federal service it may not. What is unsettled, and what the courts spent 2025 fighting over, is whether your governor’s refusal can stop a federal call-up.

Three hats, three chains of command

Begin with the hat a governor controls alone. California’s Military and Veterans Code lets the governor, by proclamation, order the militia “into the service of the state”. On that status, the Congressional Research Service (CRS) says, Guard personnel “are state employees who receive state pay and benefits.”

Title 32 is the middle hat. In full-time duty under its section 502(f), CRS says, personnel “remain under the control of state governors” while receiving federal pay and benefits. Washington asks and pays. The governor still gives orders.

Title 10 is full federal service, and it works by subtraction. A member ordered to federal active duty is “relieved from duty in the National Guard of his State” until released. Federalization does not add a boss. It takes one away.

Can they stop you, search you, arrest you?

The Posse Comitatus Act is one sentence long. It makes it a crime to willfully use the Army, Navy, Marine Corps, Air Force or Space Force “as a posse comitatus or otherwise to execute the laws”, unless the Constitution or an Act of Congress expressly allows it. The penalty is a fine, two years in prison, or both.

A second statute does the practical work. Military support to civilian police may not “include or permit direct participation” by a service member in a search, seizure, arrest, or other similar activity.

Then comes the gap. Guard members “are rarely covered by the Posse Comitatus Act” because they usually report to their governor, the Brennan Center for Justice explains, leaving them free to police where state law allows.

Same soldier. Same rifle. Different legal universe.

In federal service the line has teeth. Judge Charles Breyer of the Northern District of California found on September 2, 2025, that armed soldiers and military vehicles had set up perimeters and traffic blockades and engaged in crowd control around Los Angeles. His conclusion in that ruling: “Defendants violated the Posse Comitatus Act.”

Federal money, state command

Section 502(f) lets a governor order Guard members to duty beyond their drills, and names what it can be for: “support of operations or missions” undertaken at the request of the President or Secretary of Defense. Washington asks and funds; the state orders and commands; neither side is compelled.

The pandemic showed it working. Governors asked, the President approved full-time National Guard duty (FTNGD), and CRS gives the rule in seven words: “Governors remain in command of FTNGD forces.”

A governor who says yes can say yes with conditions. Jerry Brown agreed in April 2018 to send California Guard members to the southwest border. He set his limits in a Memorandum of Agreement for Defense Secretary James Mattis and Homeland Security Secretary Kirstjen Nielsen: no new wall, no rounding up women and children, and no enforcing federal immigration laws.

Nothing moved without his signature.

Critics call the same arrangement a workaround. The Brennan Center calls Title 32 the Act’s “second loophole”: personnel are paid with federal funds and may perform missions requested by the president, yet remain under state command, so the criminal ban does not apply.

“Through the governors of the States”

Federalizing a unit runs through section 12406 of Title 10. It lists three conditions: invasion or danger of invasion; “a rebellion or danger of a rebellion” against the authority of the Government of the United States; or the President being unable with the regular forces to execute the laws. He may then call up as many members as he considers necessary.

The section closes with a routing instruction: “Orders for these purposes shall be issued through the governors” of the States.

Everything turns on “through”.

Judge Breyer’s restraining order of June 12, 2025, recorded how it worked. Governor Gavin Newsom learned that 2,000 California Guard members had been called into federal service when the adjutant general forwarded him the June 7 order. Breyer ordered the deployment stopped and control returned to Newsom.

The case for a President who does not need permission

The government reads it the other way. One noun does the work. In its emergency application to the Supreme Court, the Solicitor General quoted the routing sentence, then argued from the word “Orders”. A call-up “is not a request to the States; it is a command.”

A Ninth Circuit panel accepted a version of that. Deployments are also requested. At a Cabinet meeting on December 1, the President said Governor Landry had asked for help in New Orleans. The government argued the President need not “obtain the consent of the Governor”, and the panel found the procedure likely met: the order went through an agent of the governor, in his name.

The precedent is from 1827, and a man who said no. Jacob Mott, a private in the New York militia, refused to report when President Madison called out the militia under the Act of 1795. A court martial fined him, and a marshal’s deputy seized his goods to collect it. Mott sued for his property and lost: deciding whether the exigency has arisen “is exclusively vested in the President”, the Supreme Court held, and binds everyone else.

The case they point back to is Little Rock. On September 24, 1957, after Governor Orval Faubus used the Arkansas Guard to keep nine Black students out of Central High, President Eisenhower signed Executive Order 10730, ordering units of the Arkansas National Guard into the active military service of the United States for an indefinite period.

The same guardsmen. The opposite orders. Federalizing took them out of the governor’s hands and put them behind a federal court order.

The Justice Department’s Office of Legal Counsel adds a second source: the Act “does not impair the President’s inherent authority” to use troops to protect federal property and functions.

The case that a governor’s refusal is the point

The states begin with the constitutional text. Article I, Section 8 lets Congress call forth the militia and organize and arm it, while “reserving to the states respectively, the appointment of the officers” and the authority of training it. The militia, on that reading, is a state institution Congress may borrow on stated conditions.

Governor Rudy Perpich of Minnesota tested the far end of that and lost. After two governors refused consent to missions abroad, Congress passed the 1986 Montgomery Amendment, barring a governor from objecting to “the location, purpose, type, or schedule” of duty outside the country. Perpich sued over a 1987 mission in Central America. The Supreme Court held the governor’s veto had never been constitutionally compelled, so repealing part of it was valid.

That ruling cuts both ways, and governors know it. Consent that is merely statutory can be narrowed again. All 53 governors of the states, commonwealths and territories signed one letter to the Secretary of Defense opposing a proposal that “disregards gubernatorial authorities regarding the National Guard”.

Between states, the machinery only pulls. Under the Emergency Management Assistance Compact, help crosses a state line when it is “requested by the receiving party state”. When Texas Guard members arrived near Chicago on October 7, 2025, Governor JB Pritzker said they were using a federal facility near Joliet because he had not allowed them state ones.

What the judges have actually done

The Ninth Circuit rejected the government’s lead argument, that federalization is completely insulated from review under the political question doctrine. It then held that review must be “highly deferential”, found the government likely to succeed and stayed the district court’s order pending appeal.

Deference is not immunity.

In Illinois, Judge April Perry discounted affidavits from senior federal officers as not reliable and as suffering from bias and lack of objectivity. Even applying the deference due the defendants, she wrote, there was “no credible evidence that there is a danger of rebellion” in Illinois.

In Oregon, Judge Karin Immergut found the government’s own declarants described four clashes outside the Portland immigration facility that month. Her verdict on the President’s determination: “simply untethered to the facts.”

The Supreme Court denied the government’s stay application in Trump v. Illinois on December 23, 2025, holding narrowly that the military may not execute the laws there without an identified source of authority. It “need not and do not address the reviewability” of the President’s findings.

States have won rounds. The government has won rounds. The largest question was left open on purpose.

Washington has no governor

The District of Columbia is the exception that shows the machinery. Its code, carried forward from 1889, says “The President of the United States shall be the Commander-in-Chief” of the militia of the District. Nobody there can refuse.

Who pays? Recent bills have been federal. A Guard deployment of roughly 2,000 personnel in Washington cost approximately $185 million across its first five months, August through December 2025.

The Insurrection Act, and why it keeps not being invoked

One statute would rearrange everything above. Section 252 of Title 10 lets the President use the militia and the armed forces whenever he considers that unlawful obstructions or rebellion “make it impracticable to enforce the laws” by the ordinary course of judicial proceedings.

It leaves a mark. Before using that power the President “shall, by proclamation, immediately order the insurgents to disperse”. No dispersal proclamation, no Insurrection Act.

The most recent one is old, and it was invited. Proclamation 6427 of May 1, 1992, for Los Angeles, recited that “the Governor of California has requested Federal assistance”.

The Heritage Foundation makes the affirmative case from the text: the Act reaches conspiracies that deprive people of constitutional rights where state authorities “are unable, fail, or refuse to protect that right”. Heritage urges restraint anyway: regular forces are untrained for civil unrest, lack local ties, and risk public confidence in the military.

The Brennan Center objects to the discretion those words carry. Forces may deploy “if the president considers” the conditions satisfied. The 1792 Act required judicial approval first; Congress removed that in 1795. Its model bill would put Congress and the courts back in the loop.

What each hat is worth to the soldier

Sgt. Bishop Evans of the Texas National Guard drowned in April 2022 after jumping into the Rio Grande to save two migrants. They survived.

Evans was serving on Operation Lone Star state orders rather than federal ones. His family “didn’t get a dime from the state.” Had he been a state trooper or a game warden, they would have received a $500,000 lump sum. On a federal deployment, $100,000. On state active duty in California, Pennsylvania or Ohio, between $10,000 and $175,000.

That is what state pay and benefits can mean when the worst happens.

Federal credit runs on thresholds, which turns an end date into a benefits decision. In 2020, Politico reported that federal officials had acknowledged the Guard’s pandemic orders were set to stop on June 24, one day short of the 90 days needed for certain retirement and GI Bill benefits.

Retired Brig. Gen. J. Roy Robinson, president of the National Guard Association of the United States (NGAUS), called the 24-day extension unusual and allowed the timing might be coincidence. “But in the back of my mind, I know better,” he said. “They’re screwing the National Guard members out of the status they should have.”

His association says the statuses are not a system at all, but “a patchwork of more than 30 separate duty statuses”.

Can a Guard member say no?

Court-martial jurisdiction follows the hat. The Uniform Code of Military Justice covers Guard members “but only when in Federal service”; in state and Title 32 duty a member answers to the state’s own military code. Either way the presumption runs against the soldier, who “disobeys an order at his own peril”, the Court of Appeals for the Armed Forces has held.

Some say no anyway. Two Illinois Guard members, Staff Sgt. Demi Palecek and Dylan Blaha, told CBS News they would refuse to deploy to Chicago. “Absolutely.

I would definitely say no,” Palecek said, adding that she would not go against her community, her family and her culture. CBS noted that refusing a lawful federal order can bring court-martial, imprisonment or a felony-level discharge.

The limit nobody has tested

No court has said how hard a judge may look. The Ninth Circuit said courts may at least check that the President’s determination falls within a “range of honest judgment”, then declined to specify the standard.

Nor has any court put a clock on a deployment. Judge Immergut was careful to say her ruling “does not rule that the President can never deploy the National Guard” to Oregon or anywhere else if conditions justify it.

Release runs one way. The Secretary concerned “may at any time release a Reserve” from active duty, and no provision requires release once the condition that justified the call-up has passed.

That is the part worth carrying to dinner. The statute says when a President may call the Guard out. It does not say when he has to send them home.