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22 Tex. Rev. L. & Pol. 95 (2017-2018)
With All Due Respect, Mr. President, We're Not Going to Follow That Order: How and Why States Decide Which Federal Military Rules Apply to State National Guard Personnel

handle is hein.journals/trlp22 and id is 107 raw text is: WITH ALL DUE RESPECT, MR. PRESIDENT, WE'RE NOT GOING TO FOLLOW THAT ORDER: How AND WHY STATES DECIDE WHICH FEDERAL. MILITARY RULES APPLY TO STATE NATIONAL GUARD PERSONNEL DWIGHT STIRLING & COREY LovATo* With President Trump considering use of state National Guard troops to deport illegal immigrants, it is essential to understand which rules-federal or state-govern the National Guard. While a president can 'federalize National Guard service members, bringing them under his command, the plan under consideration calls for Guard personnel to remain in a state status. This scenario raises the specter of a conflict of law situation. Would the Guard troops have to follow President Trump's and federal military officials' orders? What if a governor issues contrary instructions? Because Guard members can serve in two statuses, state and federal, it is not obvious which jurisdiction's rules are binding at any particular time. Nor is clarity found in the legal literature, a byproduct of the sparse scholarly treatment the National Guard has received generally. As a clear chain of command is essential to military effectiveness, this is no trivial matter. This Article explains why it is state-rather than federal- officials who decide which rules bind state National Guard personnel. In doing so, it describes the complex power-sharing arrangement the Framers created regarding state militias, i.e., National Guard forces. Under the framework contained in the Constitution's Second Militia Clause, states govern National Guard troops assigned to them. The president's role is strictly normative, limited to setting administrative standards and providing equipment. The president's rule-making authority is concurrent with the states' which also can promulgate regulations for their forces. While both can make rules, only state officials possess the power to govern, a power which subsumes the power to decide which rules apply. Accordingly, federally

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