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1 1 (April 1, 2020)

handle is hein.crs/govcpzw0001 and id is 1 raw text is: FF.ri E~$~ & April 1, 2020 The National Guard in the COVID-19 Pandemic Response: Framework for Action Ntoa,'z ., ar d The Guard is an adaptable tool at the disposal of State Governors and, when federalized, at the disposal of the President to respond to a range of threats to the security of the U.S. populace. There are National Guard entities in each state and one in Guam, Puerto Rico, and the U.S. Virgin Islands, each of which has a governor who serves as its commander-in-chief. The National Guard consists of the Army National Guard (ARNG) and the Air National Guard (ANG) (32 U.S.C. §101). The ARNG and ANG are under the control, direction, and authority of a state chain of command and are subject to state and federal military law and regulation. The District of Columbia National Guard is a federal entity with the President as commander-in-chief. Naktionw Guarcd s' z Rznv The term Reserve Component (RC) means the seven reserve forces of the Armed Forces: the Army, Navy, Air Force, Coast Guard and Marine Corps Reserves (Reserves), and the ARNG and ANG. Each reserve force has a national security mission, but the ARNG and ANG are the only ones that are part of a state government and have direct responsibility for responding to domestic disasters, emergencies, and civil disorder. The Posse Comitatus Act (PCA) does not apply to the ARNG or ANG, but it does apply if they are activated under title 10 of the U.S. Code (federal service). The PCA criminalizes the willful use of the Army or Air Force to execute the law unless expressly authorized by the Constitution or Congress (PCA includes the Navy, Marine Corps, and Space Force (10 U.S.C. §275)). The PCA prohibition covers civil government or law enforcement functions (18 U.S.C. §1385). There are five federal statutes that authorize activation of the RC: (1) Full Mobilization (10 U.S.C. §12301(a)); (2) Partial Mobilization (10 U.S.C. §12302); (3) Presidential Reserve Call-up (10 U.S.C. §12304); (4) Domestic Emergency (10 U.S.C. §12304a); and (5) Contingency Operations (10 U.S.C. §12304b). The fourth and fifth statutes, both added in 2011, authorize activation of the Reserves to respond to disasters and emergencies for up to 120 days and of the RC to support Combatant Command preplanned missions for up to one year, respectively. If not activated in federal service, the National Guard may be activated in state service on state active duty under the authority of state law. It may also be activated in state service on full-time National Guard duty (FTNGD) under the authority of federal law, pursuant to 32 U.S.C. §502(f) (502(f)). Active service under the federal authority of 502(f) is not federal active duty (10 U.S.C. §101). The state government funds state active duty and the U.S. government funds FTNGD, but both are performed under the control, direction, and authority of a governor pursuant to state law. Claims arising from the negligent acts or omissions of ARNG or ANG members performing state active duty are processed under state law and paid from state funds or insurance. Claims arising when ARNG or ANG members are performing FTNGD are processed under the Federal Tort Claims Act (FTCA) and paid from federal funds. The National Guard is the only force among the Armed Forces authorized to perform state active duty, typically performed in response to disasters or emergencies. Federal funds are not obligated for state active duty unless and until the President declares an emergency or a major disaster and the Federal Emergency Management Agency (FEMA) approves a governor's request for assistance under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act). The Stafford Act allows FEMA to reimburse a state for state active duty pay and allowances disbursed. The National Guard is authorized to perform FTNGD if federal funding is available and it is approved by the Department of Defense (DOD). The purpose of FTNGD must be consistent with the purpose of the federal appropriation that funds it. DOD or a governor can cancel FTNGD orders with superseding federal active duty orders or state active duty orders, respectively. In 2006, Congress amended 502(f) ... to better reflect the nation's continuing reliance on the National Guard ... and expressly authorized FTNGD for Operational Support (FTNGD-OS) missions undertaken by a ... unit at the request of the President or Secretary of Defense. (H.Rept. 109-452, p. 311.) National Guard members can only perform duties for mission requirements that are expressly authorized in the FTNGD-OS orders. National Guard members on FTNGD- OS are available for Defense Support of Civil Authorities (DSCA) if a governor makes a formal request for DSCA authority (DOD Instruction (DODI) 3025.22). If approved by the Secretary of Defense, support could occur under §502(f), but the FTNGD-OS must be operational support that is aligned with a federal purpose, not a state purpose. K~:> mppm qq\ p\w gn'a', ggmm a 'S I 11LULANJILiN,

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