The Lawfare Podcast – Lawfare Archive: Domestic Deployment of the National Guard

Date: August 23, 2025 (original panel recorded May 3, 2024)
Host: Scott R. Anderson, Lawfare Senior Editor
Panelists:

• General Craig McKinley, 26th Chief of the National Guard Bureau
• General Joseph L’Engle, 28th Chief of the National Guard Bureau
• Brigadier General Allison Solomon, former Assistant Adjutant General, Maryland Air National Guard
• Major General Darrell Bohack, former Adjutant General of Nebraska
• Dr. Paul Stockton, former Assistant Secretary of Defense for Homeland Defense and America's Security Affairs

Episode Overview

With the National Guard’s domestic deployments increasingly in the spotlight—especially after recent politically-charged actions by the federal government and states—the Lawfare Podcast revisits a Brookings Institution panel dissecting the National Guard’s evolving domestic role. The guests—former high-level Guard and DoD officials—explore traditional and emerging uses for the Guard at home, key legal frameworks, readiness and morale concerns, the dangers of politicization, and challenges posed by ambiguous chains of command, all in the context of election-year pressures.

Key Discussion Points & Insights

1. National Guard Statuses and Authorities

[06:42] - [12:47]
General Joseph L’Engle explains the three main statuses under which the National Guard operates, why they matter, and introduces a hybrid mode:

• Title 10 (Federal Active Duty):

  • President as Commander-in-Chief
  • Used for war and national emergencies
  • Guard members become indistinguishable from regular armed forces (subject to UCMJ, Posse Comitatus applies)
  • "The principal role of the National Guard is to be the combat reserve force to surge the force in time of war." (L’Engle, 08:09)

• Title 32 (Federally Funded, State Controlled):

  • Governors as Commander-in-Chief, but with federal funding
  • Training, organizing, and equipping for federal missions
  • Not subject to federal UCMJ

• State Active Duty:

  • State-funded, governor-commanded
  • Domestic emergency response: "Every time there’s a hurricane, national emergency, forest fire..." (L’Engle, 10:40)
  • Laws vary by state; federal legal restrictions like Posse Comitatus don’t apply

• Hybrid (Title 32, Section 502F):

  • Federally funded for state missions with a federal nexus (e.g., airport security after 9/11, COVID-19 response)

2. Traditional vs. Non-Traditional Domestic Missions

[12:47] - [20:09]
General McKinley details the Guard’s historical domestic roles (disaster response, support to civil authorities) and contrasts them with recent, more controversial tasks (e.g., border enforcement, prison staffing, acting as substitute teachers):

• Traditional Missions:

  • "What the National Guard does is it saves lives, protects property, and usually assists the first response." (McKinley, 13:36)
  • Examples: Hurricane Katrina (6-month deployment), tornado response, cybersecurity for elections

• Non-Traditional/Emergent Missions:

  • Assignments outside core competencies, often ad hoc (guarding prisons, teaching in schools, Operation Lone Star at the border)
  • Concerns:
    • Lack of mission-specific training, confusion from overlapping authorities
    • "It creates some tension, some conflict… when you mix these statuses...it causes confusion.” (McKinley, 17:33)
    • Funding disparities across states and statuses
    • Negative impact on force cohesion and retention

3. Political Tension & Impact on Guard Members

[20:09] - [25:02]
General L’Engle and others discuss the risk of the Guard being drawn into polarizing disputes:

• Morale and Readiness:

  • Multiple, long, non-core deployments strain family, employment, and training cycles
  • Politicization risks the Guard’s public image as a neutral, community-centered force
  • "You want America, when they see the National Guard, to come out, to be happy. Generally, things get better.” (L’Engle, 23:33)

• Readiness Loss:

  • Guard members pulled from their main training or civilian jobs for unfamiliar roles
  • "If we overuse them for other things like bus drivers and school teachers and prison guards… that’s not… the creation of the National Guard." (L’Engle, 24:14)

4. Civil-Military Relations & Legal Frameworks

[25:02] - [30:18]
Dr. Paul Stockton explores the tension between civilian oversight, rule of law, and practical ambiguity in divided or contested situations:

• Democratic Control, Rule of Law, and Training Gaps:

  • "You need more than civilian control… you need democratic control… respect for the rule of law." (Stockton, 26:36)
  • Lack of training for Guardsmen to recognize unlawful orders in domestic, politically charged situations; training exists for overseas (Title 10), not for domestic ops
  • Historical perspective: Federalization can be used for both moral (Little Rock, 1957) and potentially deeply inappropriate purposes

• Chain of Command Dilemmas:

  • "You can’t be in both statuses at once… but as an Adjutant General, you’re always mindful of the other status you’re not in." (Bohack, 31:05)

5. Readiness & Welfare Concerns

[33:44] - [37:55]
General Solomon expands on the effect of frequent, prolonged, and varied domestic demands:

• Personal, Family, and Systemic Impact:
  • Increasing tempo, unpredictability erodes readiness and recruitment
  • Variance in state benefits (healthcare, insurance) undermines fairness and trust
  • "How do you sustain a force… when you’re unable to find the time...to do the training?" (Solomon, 34:59)

6. Potential Solutions & Reform Options

[39:10] - [46:50]
Major General Bohack, Dr. Stockton, and others propose avenues for reform:

• Current Federal Levers & Gaps:

  • Federal funding and, in extremis, federalization are core tools
  • 95% of most state Guard budgets are federal funds—withdrawal as a form of pressure
  • Lack of standardized frameworks for domestic use, lawful orders, or rights and benefits across states

• Training and Legal Standardization:

  • Suggestion for Guard-wide frameworks akin to laws of armed conflict training—domestic rules of engagement/governance training
  • Calls for bipartisan legislative clarifications on Insurrection Act, and restricting improper uses (e.g., deploying Guard at ballot boxes for voter intimidation)

• Benefits Disparities:

  • Noted gap where state active duty Guardsmen aren’t eligible for federal disability or employment protections
  • "Unless the state legislatures… standardize… how Guardsmen are protected… If you get hurt, will the state cover your expenses? It varies by state." (Solomon, 55:26)

Notable Quotes & Memorable Moments

• On Politicization:
  "I want to separate the soldier and the airman from politics… impacts on the individual soldiers are the same… you have to take care of the soldier, regardless of politics." (General L’Engle, 23:43)

• On the Dangers of Ambiguous Lawfulness in Orders:
  "Soldiers and airmen… do not have to follow unlawful orders… what kind of training do we have… to know…? For these domestic… missions, there’s nothing there." (Dr. Stockton, 26:51)

• On Federal vs. State Command and the “Little Rock Standard”:
  "We all think it’s a great idea now that the President… federalized… to allow black kids to go to Little Rock High School… That’s the good side… Urge you to think about… the evil side. What if federalization is used… to enforce… missions that are deeply inappropriate?" (Dr. Stockton, 28:24)

• On Retention and Force Health:
  "How is this going to impact retention?… People that I talk to… may not stay 36 years like I did. They walk when they get to 20." (Solomon, 53:53)

Topical Deep Dives with Timestamps

National Guard’s Multiple Roles and “Hat-Switching”

• Breakdown of Title 10, 32, and State Active Duty: [06:42]–[12:47]
• Operational and Financial Confusion in Mixed Missions (e.g., border deployments): [17:33]–[20:09]

Readiness, Retention & Suitability for Novel Missions

• Modern Missions & Impact on Training: [13:36], [34:47], [53:36]
• Benefit Gaps & Family Impact: [34:47], [55:26]

Politically-Charged Deployments & Law

• Operation Lone Star and Voting Sites: [17:33], [58:18], [72:05]
• Civilian Control, Unlawful Orders, and the Insurrection Act: [25:17], [26:36], [45:18]

Solutions, Legal Guardrails, and the Future

• Standardizing Training & Legal Understanding: [39:10]
• Potential Expansion of Posse Comitatus at the State Level?: [80:15]–[86:37]
• Legislative Proposals on Benefits, Use-of-Force Rules: [45:18], [55:26], [85:33]

Audience Q&A Highlights

• Deployments in Support of Elections: [58:18], [60:35]
• Operation Lone Star Legal/Operational Dynamics: [72:05]–[80:06]

Closing Sentiments

• Strong consensus: The Guard’s strength is its adaptability and service ethos—but the current rate and nature of novel domestic missions threaten morale, readiness, and public trust.
• Uniform call for better frameworks, bipartisan legislative fixes, more robust real-world training, and dialogue between governors and Guard leadership—particularly before a national emergency or election crisis.
• "National Guardsmen… don’t want to be confronting either the federal force or CBP. We’re all on the same side." (McKinley, 77:33)

For Further Information

Visit lawfareblog.com for in-depth articles and more podcasts on U.S. law, policy, and national security.

[Panel Timestamps: Key Segments]

• Introduction & Panelist Bios: [03:10]–[06:42]
• National Guard Statuses Explained: [06:42]–[12:47]
• Traditional v. Novel Domestic Missions: [12:47]–[17:33]
• Politicization & Readiness Risks: [20:09]–[25:02]
• Civilian/Military Chain of Command Issues: [25:02]–[30:18]
• Legal & Welfare Frameworks: [30:18]–[46:50]
• Proposed Solutions: [39:10]–[46:50]
• Audience Q&A (Voting, Operation Lone Star, State v. Federal Law): [58:18]–[86:37]