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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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