Rick Perry and the National Guard

 

"When National Guard units are not under federal control, the governor is the commander-in-chief of the units of his or her respective state or territory (such as Puerto Rico, Guam and the Virgin Islands). The President of the United States commands the District of Columbia National Guard, though this command is routinely delegated to the Commanding General of the DC National Guard.^[19] States are free to employ their National Guard forces under state control for state purposes and at state expense as provided in the state's constitution and statutes. In doing so, governors, as commanders-in-chief, can directly access and utilize the Guard's federally assigned aircraft, vehicles and other equipment so long as the federal government is reimbursed for the use of fungible equipment and supplies such as fuel, food stocks, etc. This is the authority under which governors activate and deploy National Guard forces in response to natural disasters. It is also the authority under which governors deploy National Guard forces in response to man-made emergencies such as riots and civil unrest, or terrorist attacks."  

Wiki on The National Guard of the United States

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"The Act, as modified in 1981, refers to the Armed Forces of the United States. It does not apply to the National Guard under state authority acting in a law enforcement capacity within its home state or in an adjacent state if invited by that state's governor."  Wiki on The Posse Comitatus Act

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Having been both an enlisted (sergeant E-5)  National Guardsman and an officer (colonel O-6) of the Regular Army of the United States,  I have a deep interest in the employment of these forces. 

 

For the benefit of non-Americans it should be explained that the National Guard is the federally funded portion of the constitutionally guaranteed militias of the separate states and the District of Columbia.  Many states have militia activities (state guards, etc.) that have nothing to do with the federal government and which, in some cases, are armed.  The federal government has no control over those non-NG forces.

In the case of the National Guard, its units are subordinate to both the state and federal governments.  Under the "normal" conditions of unit training at home stations (local armories) these units are constitutionally subordinate to the state governor as prescribed in state law and are available for employment by the state government without regard to federal wishes so long as the state government does not ask for federal money to support such operations.  In other words, if the state wants to use the NG for purposes separate from federal policy then the state must pay the expense of the operation.

The federal Posse Comitatus Act (PCA) as cited above applies only to federal forces to include the NG when it has been called by POTUS into federal service under the explict agreement by which the federal government funds, equips and trains the NG.   This law prevents the use of federal military forces in civilian law enforcement.  The PCA DOES NOT apply to units of the NG when they are in state active duty status. 

It is clear that if Governor Perry orders some part of the Texas National Guard to the border in a strictly state active duty status, these forces will have the power of arrest as though they were police. 

The question then arises with regard to which laws they could enforce.  Border control and immigration are constitutional responsibilities of the federal government.  If the federal government does not want NG assistance in enforcing such laws, would the NG under state control have the legal right to make such arrests?

Which laws would the NG be able to enforce?  I know not.  pl  

http://en.wikipedia.org/wiki/National_Guard_of_the_United_States

http://en.wikipedia.org/wiki/Posse_Comitatus_Act 

http://en.wikipedia.org/wiki/State_Guard 

http://en.wikipedia.org/wiki/Militia_(United_States)

 

Comments

[FND]

Thank you for these clarifications colonel. I've always been a bit confused about the authority of the governors over their state NGs, and too lazy to research it I suppose.

[ceasley7]

Trespassing, undocumented without a state driver's license, or state identification, most states you are required to show ID when asked by a law enforcement officer under probable cause suspicion, for example the recent arrest of the black professor who was arrested at ASU by campus police for refusing to show her ID after being stopped for jay walking, resisting arrest, disorderly conduct, jay walking, kidnapping for example the minors from Central America, trespassing private property, driving without a license, child endangerment, not having up to date medical vaccinations, the list of infractions for what they could be arrested for would be extensive, if so desired, we have no shortage of laws, frankly way to many.

[MRW]

You write above: "This law prevents the use of federal military forces in civilian law enforcement."

Oh yeah? Watch how someone is using a proxy to get around this constitutional mandate. It's in the last 10 minutes. If you are time-constrained, just watch that, but I guarantee the whole thing is riveting. And timely. (Max Blumenthal wrote about this three years ago, but this is much more powerful.) Your readers, in particular, need to see this.

'An Israeli Soldier's Story - Eran Efrati' [March, 2014]
https://www.youtube.com/watch?v=93hqlmrZKd8

[Tyler]

The Colonel, as usual, has hit to the crux of it: The National Guard cannot enforce the provisions of the INA, especially thanks to the mangled ruling of the Ninth Circus Court regarding SB1070.

People ask me regularly: "Well they should send out the National Guard!" to which I reply: "To do what exactly?" When King Janet Napalitano deployed the NG here in Arizona out here years ago, they ran LPOP ops and built some tactical infrastructure (cut roads, roads to certain passes, etc). They all had empty M4s with the exception of the sergeant, who had one magazine. There was an incident in which an LPOP was assaulted by what we assumed to be the Zetas, and the NG fled the post and left behind radios, maps, sensor lists, etc that were never recovered.

Napalitano gave them medals in a closed door ceremony for bravery.

Another thing is that many people have no idea what "patrol" consists of. The majority of the pictures put out by the Powers that Be usually show a minority female with a pair of binos and an impeccable uniform looking at something VERY STERNLY. LOL okay.

The reality is that the work varies from station to station. Some stations have a lot of "X's", which are positions in which agents sit in a vehicle for their shift and "deter". Obviously this is considered a chicken shit assignment but its the grand idea of former Chief/CBP Asst. Commissioner David Aguilar, and they still do it.

However a lot more of the work is old fashioned man tracking, or cutting and pushing. We have aids of course: ground sensors, cameras, and the like, but tracking is still a large component of what we do, even if its figuring out what landmark the group is angling towards and using that as a point of reference.

In many ways, the skill set is associated more with a scout, or a warden/ranger (in the old sense of the term, not the US Army Rangers). There's definitely a certain amount of initiative and common sense required in order to capture and control a group of illegal aliens and be safe about it. I do not believe the skills that the National Guard teaches are interchangeable with the skills of a Patrol Agent. You make a lot of mistakes before you figure out how to be effective in the role of the latter.

The real question here is if there's a governor with the salt to deport the illegal aliens in question and dare the FedGov to do anything about it. I don't see Perry being that governor.

The wholesale disrespect for the law and twisting of it to mean "what I want it mean when I want it mean it" is a cancer that is killing our Republic. One only needs to look at the Halbig decision and the outraged response of the Left to claim it was a "drafting error" to see that these people believe they are on the side of the angels, and everything is permissible. We are already in an anarcho-tyranny. The next act is civil strife.

[Tyler]

As an aside, I know the Colonel and others from VN fondly remember the M79. Maybe y'all will appreciate that I carry one of these nowadays by its lonesome:

http://www.hk-usa.com/military_products/m320_general.asp

[Fred]

"The next act is civil strife." Yes and they won't be occupying buildings at Columbia University like our Attorney General did.

[Ryan]

Tyler,

Good points, especially about needing scout skills or I'll add, infantry patrolling skills. If we had a real president he would have the RA patrolling the border.

I don't see Perry as the man either to defy the Feds and deport the illegals. It's a pity, for if any state could pull this off it would be Texas. If Texas did I believe the act would rally some other governors.

What I would be curious to know is assuming a use could be found for the guard on the border how would the Military Commissions Act of 2006 work here? At the time this piece of BS was passed every governor was against it because it allowed a president to mess with the guard. I can see Obama using this section of the act to gum up the works.

Forgive me for this source as I am not feeling well. It was the first one that came up. My memory does tells me it is accurate.

http://www.dailykos.com/story/2006/10/18/258936/-HUGE-Bush-Guts-Posse-Comitatus-Grabs-National-Guard-ACTION-UPDATE#

Heh, heh. Nice toy, Tyler. I carried an M-203 for a while myself.

[Thaumaturgist]

With all due respect, I believe the lot of you are missing the point. The governor done somethin. Against illegal alien kids. This is the same governor who once said kids should have the right to go to state colleges in Texas without regard to citizenship. He just done redeemed hisself.

[turcopolier]

Ryan

Posse Comitatus remains intact in spite of Shrub's best efforts to seize control of the Guard for the nefarious purposes of his neocon dominated administration. Why? Unlike the RA the Guard can push back strongly against the administration at the political level and at the level of the National Guard Bureau which is a serious player in DoD. Remember the Guard now has a four star member of the JCS. There was a serious effort to undermine Posse Comitatus in the context of the "war on drugs" but that never worked very well because soldiers or marines (RA or not) when given the job of "holding" the border are a menace to infiltrators as they would see them. The federal government has tried since the 1880s to seize absolute control of the militia of the states as a national reserve. Before that the RA had little interest in the militia, but the failure of Emory Upton's expansible army scheme focused the RA on acquisition of Guard as a reserve. This has had limited success in terms of general or partial mobilization, but it has always failed miserably in terms of "cowing" the Guard into submission to the RA. You say that the RA should patrol the border? If they did, they would be completely subject to Posse Comitatus unlike the Guard when in state service. pl

[Fred]

Thaumaturgist,

You mean that politician in Texas finally figured out that his state gets to foot the bill for 40-50,000 (so far) people who have been educated to the Honduran/Guatemalan/Ecuadorian/whatever standard and will need schooling, housing and medical services and then jobs which they are not eligible for?

[Fred]

Ryan,

I think rather than ‘deport’ these illegal immigrants he (Perry) should just help them on their way. I can only imagine the outrage in the political realm if the Texas ANG flew a few thousand to an out of the way airfield near some pro-illegal immigrant congressman’s summer home dropped them on the local population around 1 am with a map to the man (or woman’s) house. All he’d have to do is figure out how to get his aircraft back before they were seized by some other governor. He could then sit back on the talk show circuit and smile while asking how many more would NY, Massachusetts etc. like to have delivered to them?

[Tyler]

"Don't call it a grave - its the future you chose."

[Tyler]

When people talk about the Guard or the RA "patrolling" the border, they're missing the point. When you get into that mindset they're imaging it as a giant game of hide and go seek, where once you get into the cities or past the interstate you're "home free".

That's the incorrect paradigm. Its not just about the border, its about the safe havens and the employers. Its about ripping out illegals from their sanctuary cities and sending them back home. Its about fining and crushing the employers and contractors who are employing the illegals.

I've seen an article floating around by some SF type with his "solution" to the border problem, and its a lot of wishful thinking and shows an ultimate lack of understanding of the issue. I get that his heart is in the right place but personally I'm at the point where I'm sick and tired of some guy who has credentials in a tangentially related field coming down and dispensing "wisdom" on us poor peons.

Mortar teams to drop indirect fire on armed dope runners? Labor camps for illegals until they are deported? Ahahah. Tell me how you deal with 70 year old hippies shoving cameras in your face while people throw themselves under the wheels of your ride and scream bloody murder when you try to pull them out. I get the same style of response "WELL THEN YOU BEAT THEM UP" sort of tuff guy nonsense that totally ignores the fact you do that and you're looking at being a federal felon for violation of civil rights under color of law.

They cannot grasp that the military culture and government's view of them is not applicable to what we deal with. But so be it. These "solutions" have no chance of happening, and are simply exercises in mental masturbation.

[Tyler]

Perry was talking about amnesty when he didn't think anyone cared and then watched his ratings do a Rubio.

There are very few politicians who will not sell out the Republic for a golden parachute once they leave.

[scott s.]

Ceasley7: I do not believe this is correct. There is, in general, the concept of a "Terry stop" (so-called on the basis of a USSC case Terry v. Ohio). Law enforcement is allowed to stop/detain an individual on the basis of "reasonable suspicion", a lower standard than "probable cause" as required for 4th amendment search and seizure.

Separately, several (not most) states have "stop and identify" statutes. The USSC has ruled in a Nevada case (Hiibel) that you can be required to identify yourself by giving your name in a Terry stop. But there has not been a ruling as regards to how you must identify yourself, other than simply stating your name. There is currently no USSC approved requirement to show a particular (or any) ID "card" or other document. I do not believe Texas is a "stop and identify" state.

[Big Bird]

Gov. Perry could call up the Texas State Guard, as distinct from the Texas Army National Guard.

I was at a local street fair in the late 90s and saw a very old jg in uniform. Struck up a conversation with him and it turns out that he was in the NJ Naval Militia, with its headquarters in a neighboring town's armory that once held the HQ of an armored division's signal battalion that had been dissolved at the end of the cold war. A large navy anchor was outside of the armory. For a coastal state with the Port of New York at one end and the Delaware estuary and Port of Philadelphia at the other, as well as coastline, this made some intellectual sense. But where did this come from?

There is a good Wikipedia entry on this entity at http://en.wikipedia.org/wiki/New_Jersey_Naval_Militia Written mostly from dry official reports, it misses the character of this organization. From what I could gather, this naval militia had a lot of former service personnel, including retirees. The unit would fit somewhere between the Coast Guard Auxiliary/Civil Air Patrol and the National Guard units. I had been mandatorily retired from the USAR having become all that I could be. This looked like a worthwhile civic venture. As an engineer both within the military and in civilian life, I wondered if there was something I could offer.

Then things got somewhat strange. There was a newspaper article about a parish priest who was bent out of shape because he couldn't get a commission in the organization as a four stripe chaplain. A similar ranked Army chaplain would be chief chaplain for a corps with experience at different levels, not one years experience thirty times.

Something kept me from applying to get into this. Its demise came after 9/11, when the unit was activated and was on patrol. I suspect that the State Department of Military and Veterans Affairs, used to dealing only with the National Guard Bureau, was caught off guard (no pun intended), and didn't know what to make or do with this organization. This was too much organizational change for the powers to be. Revert to the existing National Guard funded structure.

The armory is empty. The anchor is gone. An engineer bridge erection boat is gone from the property.

[turcopolier]

Big Bird

"Gov. Perry could call up the Texas State Guard, as distinct from the Texas Army National Guard" He could use either or both if he is willing to pay their costs. pl

[Ryan]

Tyler,

Patrolling the border is one aspect of the problem. I agree with the other items you listed, especially the employers who hire illegals having been around other contractors who use them. They are enablers.

Fred,

I laughed at what you wrote. It would be poetic justice to see this done. The pilot would have to flee for his life as not everyone is infatuated with illegals unlike our political and media class.

[alba etie]

Tyler
I clicked on the link you provided - it also talked about newer non lethal rounds . I suppose that could be useful in some Border Patrol circumstances .

[Fred]

Ryan,

Perry could always hedge his bets and just send up some Texas Rangers and the TX ANG to 'scout' the appropriate sites and give plenty of press conferences in every town along the way. I can only imagine what the FOX affiliates would do with such a dog and pony show.

On second thought maybe I should call his presidential campaign manger and see if they need an 'idea' man. A little extra cash would pay for that boat I have my eye on. (Besides whatever stupid ideas I come up with can't be any worse than what the professionals have racked up lately.)

[Tyler]

No kidding.

"HEY HERE'S A GREAT IDEA. LET'S ALIENATE OUR BASE SO WE CAN STOP BEING CALLED RACISTS BY THE NEWS AND MAYBE WIN 10% OF 15% OF THE POPULATION." - some idiot "strategist"

[William R. Cumming]

Note Bene! The immigration laws of the USA have both civil and criminal provisions.

The State Self-Defense Forces exist under Title 32f the US Code. The National Guard under title 10. 95% of all salary and expenses and equipment for the NG are federal expenditures. When employed in Presidentially declared disasters but not federalized under Title 10 typically FEMA reimburses the State and DoD for NG costs. And when federalized for Presidentially declared disasters and emergencies FEMA reimburses DoD!

In 1983 in Perpich v. US, SCOTUS ruled against the Governor of Minnesota when he tried to prevent the Minnesota NG from being deployed outside of the USA for "training"! SCOTUS ruled that all NG ranks took a dual federal and State oath.

Now based on the Katrina experience in NOLA DoD sometimes authorizes an NG office to be dual hatted and command both NG and Active Forces.

Since 1945 over 100 separate studies of usage and employment have been conducted by DoD and even FEMA in 1995!

[turcopolier]

WRC

Interesting but irrelevant, all this funding business deals with state and NG forces when they are doing something the federal government approves of. None of this prevents a governor using these forces under his sole control if the state pays alone. pl

[turcopolier]

WRC

"The State Self-Defense Forces exist under Title 32f the US Code. The National Guard under title 10. 95% of all salary and expenses and equipment for the NG are federal expenditures. When employed in Presidentially declared disasters but not federalized under Title 10 typically FEMA reimburses the State and DoD for NG costs"

Title 32f does not create state Self-Defense forces. it merely recognizes them for federal funding if that is desired in an emergency. the same thing is true of NG expenses. pl

[William R. Cumming]

Thanks PL!