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                                                                                                  April 1, 2020

The National Guard in the COVID-19 Pandemic Response:

Framework for Action

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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.

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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

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.


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