Governors Could be Powerless to Deny National Guard Border Deployments

Two conflicting statutes govern the deployment of National Guard troops—one puts the power in the state governor's hands, the other in the president's.

Posted: Apr 6, 2018 2:21 PM

By ANDREW SELSKY and TOM JAMES , Associated Press

SALEM, Ore. (AP) — President Donald Trump's plan to deploy National Guard troops to the border with Mexico has drawn resistance from some governors, most of them Democrats, but they could be powerless to deny the commander in chief's request for soldiers.

Governors have some leeway to say no presidents, but depending on which federal law Trump uses to order the deployment, the matter could be out of the governors' hands.

The statute known as "Title 10 duty status" establishes that National Guard personnel operate under the president's control and receive federal pay and benefits. It also forbids them from performing tasks of civilian law enforcement unless explicitly authorized, according to the Congressional Research Service.

Trump said Thursday that he wants to send 2,000 to 4,000 Guard members to the border to help federal officials fight illegal immigration and drug trafficking. Homeland Security Secretary Kirstjen Nielsen said on Twitter that she had a "productive conversation" about the deployment with governors of the Southwest border states.

On Friday, North Dakota's Republican governor joined leaders of some border states in saying he would send forces if asked.

The GOP governors of Arizona, New Mexico and Texas also back the plan. California's Democratic governor has been silent on the topic. It's unclear if Trump will ask for troops from states other than those along the border.

White House press secretary Sarah Huckabee Sanders described the deployment as "a good first step." If the administration determines that more troops are needed, "we'll make that decision at that time."

North Dakota Gov. Doug Burgum said that if he's asked, he will contribute.

"We will answer the call," Burgum said. "From historic floods to more recent events, we North Dakotans know from experience how critical it is for states to support each other in times of need."

Nevada Gov. Brian Sandoval, also a Republican, on Friday became one of the latest leaders to oppose the plan. His spokeswoman, Mary-Sarah Kinner, said in an email that Sandoval does not believe the mission would be "an appropriate use" of the Nevada Guard.

Oregon Gov. Kate Brown has said she would deny Trump's request.

"As commander of Oregon's Guard, I'm deeply troubled by Trump's plan to militarize our border," Brown tweeted.

Her spokesman, Bryan Hockaday, acknowledged she might not have a say if Trump uses the federal code.

Trump "can federalize the National Guard forces, and there's not much the governor can do to prevent that," Hockaday said.

However, if a National Guard mission were ordered under another federal law called Title 32, the protocol could be different. That law says command and control of National Guard personnel remain with their respective governors, even though the troops generally serve a federal purpose, according to the Congressional Research Service.

In that scenario, a governor could try to reject a request for troops or order Guard members to remain in rear staging areas and not participate.

While California Gov. Jerry Brown has not spoken publicly about Trump's plan, California National Guard spokesman Lt. Col. Tom Keegan said any request "will be promptly reviewed to determine how best we can assist our federal partners."

"We look forward to more detail, including funding, duration and end state," Keegan said.

Alabama Gov. Kay Ivey, a Republican, said Friday that she will consult with the head of the Alabama Guard to see what resources are available.

If the deployment happens, it would not be the first time the National Guard has gone to the U.S.-Mexico border.

Almost every U.S. state and territory contributed Guard members to Operation Jump Start, announced by President George W. Bush in 2006. Around 30,000 Guard members eventually participated, according to a 2008 National Guard analysis, including more than 1,000 each from Kentucky, North Carolina, and South Carolina.

During Operation Phalanx, ordered by President Barack Obama in 2010, 1,200 Guard members deployed to the border, most of them from Arizona, California, New Mexico and Texas.

In the mid-1980s, National Guard troops were deployed even farther south, in Honduras, where they carried out military maneuvers. The missions happened as Sandinista forces in neighboring Nicaragua battled Contra rebels who were backed by Washington and had clandestine bases in Honduras.

___

Associated Press writers Doug Glass in Minneapolis, Nomaan Merchant in Dallas and Jonathan Cooper in Sacramento, California, contributed to this report.


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