The National Guard: 

Defending the Nation 

and the States 

Advisory Commission on 

Intergovernmental Relations 

A-I 24 

April 1993 
U.S. Advisory Commission on 

Intergovernmental Relations 

1111 20th Street, NW 

Suite 2000 

Washington, DC 20575 

(202) 653-5640 

FAX (202) 653-5329 
Executive Summary 

The National Guard is a successful but Little examined 

intergovernmental institution. However, recent events have 

called attention to the role of the Guard in America’s de- fense and emergency preparedness systems and to a range of 

intergovernmental issues concerning the Guard’s control 

and operation. First, the Supreme Court resolved in favor of 

the federal government a conflict between the governor of 

Minnesota and the U.S. Defense Department regarding as- signment of Guard units to active duty training outside the 

United States without the consent of the governor. 

Second, decisions about downsizing US. military 

foxes will have a major effect on the number of Guard 

troops and their integration into the Defense Depart- ment’s Total Force Policy. Third, Guard troops had a 

front-line role in the Persian Gulf operations. Finally, 

Guard members have been very visible in response to nat- ural disasters and to the riots in Los Angeles in 1992. 

This Advisory Commission on Intergovernmental Re- lations (ACIR) study- The National Guard: Defending the 

Nation and the States-explores the role of the Guard in 

the federal system, focusing on: 

Questions of constitutional balance involving 

dual control of the Guard by the federal and state ‘ 

governments; 

Concern over the future of the National Guard in 

the context of national security and state needs; 

Opportunities for improved intergovernmental 

cooperation between the federal and state gov- ernments in control and operation of the Guard. 

The National Guard is a centuries-old institution and 

a vital part of our national defense and emergency preparedness systems. The Guard has emerged as the foremost reserve of the Army and Air Force. Unless called up 

for active duty by the federal government, the Guard is 

under the command of the governors and plays an important role in times of civil unrest or natural disasters. For 

1992, the Guard had an estimated 584,000 members organized into 54 state and territorial military commands, and 

was funded at nearly $10 billion. 

The roles of the National Guard have changed over 

the years to meet the national interest as well as those of 

the states and territories. The Guard remains partly inde- pendent, but its responsibilities also link it to the active 

armed forces and to the reserves. The Guard’s unique sta- tus is exemplified by the fact that its members take an oath 

to their state and to the United States. 

The role of the National Guard during the Persian 

Gulf operations highlighted the Guard’s place in the na- tional defense structure. Equally important, however, is 

the Guard’s role in domestic affairs under the control of 

the governors. The Guard is the only military force immediately available to a governor for meeting state emergen- cies, and the states have a substantial stake in the respon- siveness and effectiveness of their Guard units. 

ACIR’s findings and recommendations include: 

(1) The role of state officials in Guard training and integra- tion into the ntal Force Policy is minimal, and there is 

insufficient consultation between the governors and the 

military concerning issues in balancing the national and 

state roles of the Guard. An expanded mechanism is 

needed to analyze these issues. The Guard also should 

have membership on the Joint Chiefs of Staff. 

(2) Public Law 102-190 provides that the Defense Depart- ment submit to the Congress an assessment of alterna- tives relating to the structure and mix of active and re- serve military forces for the 1990s. This study should 

include an assessment of (1) the impact of force alter- ations on the Guard’s ability to fulfii its state responsibi- lities and (2) the feasibility of combining the Army and 

Air Force Reserves with the National Guard. 

(3) Decisions regarding the reduction and restructuring 

of defense forces will have an impact on states. Plans 

call for a more than 30 percent reduction in Guard 

forces in each state, which could affect their capability 

to respond to natural disasters, civil disorders, and other 

emergencies. States have a strong stake in maintaining 

their Guard capability, which should receive special at- tention when policies are made that affect the Guard. 

(4) Participation in drug interdiction and other anti-drug 

activities raises important intergovernmental issues 

because the Guard’s domestic role has been expanded 

to assist civilian authorities in these efforts. Cooperative 

agreements may lead to federal-state cost sharing. 

(5) Compliance with environmental protection laws and 

equal employment opportunity needs continuing at- tention. The Guard has initiated the Environmental 

Compliance Assessment System to identrfy deficien- cies and develop corrective plans. The Guard also needs 

to develop programs to ensure the progress of minori- ties and women into leadership positions. 

(6) Policy requiring unit integrity in calling up state 

Guard units is not always followed, but is important 

for state sovereignty, federal-state comity, and troop 

efficiency, trust, and support. Defense Department 

policy sxould allow state designation of Guard units, 

except when in federal service, and allow units to indi- cate their home state on uniforms and equipment. 

(7) Twenty-four states have established state defense 

forces, which are paramilitary, volunteer civilian militia that serve as a back-up in the event the state’s 

Guard contingent is mobilized for federal service. 

They also provide services such as crowd control. 

State defense forces are faced with a number of prob- lems, however. They have no federal standing now, 

but legislation has been introduced to increase federal support. Careful consideration should be given to 

the need for and purpose of such legislation. 

(8) Several states have authorized interstate mutual aid 

agreements for response to civil disturbances or natu- ral disasters. This should be done by all states in view 

of the fact that the number of Guard troops may be 

reduced and certain types of equipment may become 

inadequate or be eliminated. Congress should ap- prove the compacts, and the Federal Emergency 

Management Agency should assist in these efforts. 

Advisory Commission on Intergovernmental Relations iii 
iv Advisory Commission on Intergovernmental Relations 
Preface 

The National Guard is a venerable state-federal institution that has long served the states and the United 

States well at home and abroad. In addition, the history of 

the Guard reflects, in many respects, the history of American federalism as well as the contours of intergovernmental conflict and cooperation from the 1780s to the 1990s. 

Initially a highly state-based system of defense and domestic assistance under the primary command of governors, 

the Guard has, over two centuries, been increasingly integrated into the overall and more unified and hierarchical 

defense structure of the United States. As a result, the 

federal government plays a much larger, even commanding role in the National Guard system than it did in the 

past, just as it plays a much larger role in domestic policy 

areas more generally today. 

Because of the Guard’s crucial role in responding to 

natural disasters and civil disturbances, however, Guard 

policy points up more clearly than is the case in many other 

policy areas the importance of continued state authority to 

ensure the ability of Guard units to respond to state needs 

as well as the need for federal

-state cooperation, especial- ly to avoid federal policy actions that might reduce Guard Q 

capabilities in some or all of the states and to ensure effective and efficient intergovernmental responses to natural 

disasters and civil disturbances. Recent developments regarding gubernatorial authority, disaster response, defense force reductions, and total force policies have raised 

new questions and concerns about the Guard, which are of 

great intergovernmental importance. 

Indeed, a degree of notoriety was achieved when the 

U.S. Supreme Court resolved a conflict between the governor of Minnesota and the U.S. Department of Defense 

regarding the assignment of state Guard units, without the 

consent of the governor, to active duty training outside the 

United States. When the Court ruled in favor of the federal 

government, attention was called to a range of other intergovernmental issues involving the states and the federal government in the operation and control of the Guard. 

Intergovernmental and even federal issues relating to 

the National Guard generally do not have a high salience 

with the public, but there is intense interest within the 

US. Deparment of Defense, among the governors, and in 

organizations such as the National Guard Association of 

the United States. This report seeks to explain to a broader intergovernmental audience the place of the National 

Guard in the federal system. It explores: 

1) Questions of constitutional balance involving 

dual control of the Guard by the federal and state 

governments; 

2) Concern over the future of the National Guard in 

the context of both national security strategy and 

state needs; and 

3) Opportunities for improved intergovernmental 

cooperation between the federal and state governments in control and operation of the Guard. 

Robert B. Hawkins, Jr. 

Chairman 

Advisory Commission on Intergovernmental Relations v 
vi Advisory Commission on Intergovernmental Relations 
Acknowledgments Norman Beckman, professor of political science at 

- Howard University and former assistant director of the 

Advisory Commizkon on Intergovernmental Relations, 

and Michael Frazier, professor of political science at Howard 

University, were the principal investigators and authors of 

this report. 

The Commission gives special thanks to Maj. Gen. 

Bruce Jacobs and Daniel Donohue for their valuable contributions to the study. Significant assistance also was provided by Col. Carl Batton, Lynda Davis, Col. H.R. Denman, 

Martha Derthick, Robert Goldich, John Hasselmann, Nolan Jones, Spratley Metts, Leo Penne, Carol Schuster, and 

Richard Shivar through their participation in thinkers’ and 

critics’ sessions. 

Bruce McDowell, ACIR director of Government 

Policy Research, supervised preparation of this report. 

The Commission and its staff are responsible for the 

contents of this report. 

John Kincaid 

Executive Director 

Advisory Commission on Intergovernmental Relations vii 
viii Advisory Commission on Intergovernmental Relations 
Contents 

Findings and Recommendations ................................................................... 

Findings ................................................................................. Recommendations ........................................................................ 

Chapter 1 -Introduction .......................................................................... 

An Intergovernmental Institution .......................................................... Evolution of an Idea ...................................................................... 

Chapter 2-History of the Guard ................................................................... 

Constitutional Developments .............................................................. 

Armies Clause .................................................................... Other Relevant Provisions ......................................................... 

Wars Affect Composition and Role of Militia ................................................ Civil War and Reconstruction .............................................................. The Militia in the 20th Century ............................................................ Dick Act of 1903 .................................................................. National Defense Act of 1916 ........................................................ Subsequent Legislation ............................................................ Adoption of the Total Force Policy .......................................................... Conclusion .............................................................................. 

Chapter3-The National GuardToday ............................................................. 

Army and Air National Guards ............................................................ Army National Guard ............................................................. Air National Guard ............................................................... 

Federal Salary and Fringe Benefits ......................................................... Integration of the Guard into the Armed Forces ............................................. Federal Supervision of the Guard .......................................................... Full-Time Personnel ...................................................................... Strong Grass Roots Support ............................................................... Conclusion .............................................................................. 

Chapter 4-State Authority and Support for the National Guard ....................................... 

State Mobilization of the National Guard ................................................... How the Guard is Mobilized by the States ........................................... 

Costs and Benefits ....................................................................... State Supervision of the Guard ............................................................ 

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Advisory Commission on Intergovernmental Relations ix 
Interstate Cooperation .................................................................... Conclusion .............................................................................. 

Chapter 5-The Governors and the National Guard-Whose Guard Is It? .............................. 

Methods for Activating the Guard .......................................................... 

Training ......................................................................... 

Disputes over Foreign Training ............................................................. Governors Undertake Court Challenges .................................................... The Supreme Court’s Opinion ............................................................. Implications for Federalism ................................................................ 

Expansion of the National Guard’s Federal Role ..................................... Retention of Federal Authority ..................................................... Residual State Authority ........................................................... States and Foreign Policy .......................................................... 

Methods ......................................................................... 

Conclusion .............................................................................. 

Chapter &Total Force Strategy and the Future of the National Guard ................................. 

Troop Levels ............................................................................. Actives versus Reserves ............................................................ Allocating Responsibilities ................................................................. The Guard’s Recent Record ............................................................... GAO Assessment ................................................................. Defense Department Reviews ...................................................... National Guard Perspectives ....................................................... Study Under Way ................................................................. 

State Concerns ........................................................................... Conclusion .............................................................................. 

Chapter 7-Intergovernmental Issues Involving the Civil Activities of the National Guard ................ 

Federal Disaster Relief and Emergency Assistance ........................................... Civil Disorders and the National Guard ..................................................... Use of the National Guard in Drug Interdiction and Anti-Drug Activities ....................... Operation Autumn Harvest ........................................................ Cost Concerns .................................................................... State Defense Forces and the National Guard ............................................... 

Problems with State Defense Forces 

Proposals for Expanded State Defense Forces ........................................ Intergovernmental Issues .......................................................... Compliance with Environmental Protection Laws ............................................ Equal Opportunity in the National Guard ................................................... Unit Integrity ............................................................................ 

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Conclusion .............................................................................. 

Appendixes ...................................................................................... 

Appendix Table 1 -Reserve and National Guard Programs. Personnel Summary by ComponentFiscalyears 1990-1993 ........................................................... Appendix Table 2 -Reserve and National Guard Programs. Funding Summary by Component- Fiscal Years 1990.1993 ........................................................... Appendix Table 3 -Appropriations Summary-Army National Guard. Fiscal Years 1990-1993 ............. Appendix Table 4 -Appropriations Summary -Air National Guard. Fiscal Years 1990-1993 ............... Appendix Table 5 -National Guard Strength by State and Territory .................................... Appendix Table 6 -Statutory Authority for Mobilizing the National Guard into Federal Service ........... Appendix Table 7 -Selected National Guard Call.Ups. 1950-1990 ...................................... 

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x Advisory Commission on Intergovernmental Relations 
Findings 

and 

Recommendations 

A subject of extensive debate and compromise during 

the Constitutional Convention of 1787, the National 

Guard has its origins in explicit provisions of the United 

States Constitution, including the Bill of Rights.Throughout the nation’s history, the Guard has been an integral 

component of the defense and domestic emergencyresponse networks of the states and the United States 

Just as the federal government’s relationship to the 

wide range of state activities and responsibilities has 

evolved over the years, so too have the federal and state 

roles of the National Guard changed in order to meet the 

national interest as well as the particular needs and circumstances of each state and territory. By virtue of their 

intertwined constitutional, statutory, and military respon- sibilities, the National Guard, the active armed forces, and 

the reserves are now linked very closely; yet, the Guard 

remains partly independent as well. The Guard’s unique 

status is exemplified by the fact that Guard members, un- like their counterparts in the active or reserve forces, take 

an oath both to their state constitution and to the United 

States Constitution. 

The role of the National Guard during the 1991 Per- sian Gulf operations highlighted the Guard’s place in the 

national defense structure. Equally important, however, 

is the Guard’s role in domestic affairs under the command 

of the governors. Because the Guard is virtually the only 

military force immediately available to a governor, it plays 

a vital role in responding to natural disasters, civil disorders, and other emergencies. Constitutional authority aside, 

the states have a substantml, practical stake in the ongoing 

responsiveness and effectiveness of their Guard units. 

Given the roles of the Guard in many aspects of do- mestic and foreign policy, it is not surprising that virtually 

all issues involving the National Guard have an intergov- ernmental component and need cooperative federal, state, 

and local decisionmaking. The Commission, therefore, pres- ents its findings and recommendations about the National 

Guard’s role in protecting the nation and the states with a 

view to improving intergovernmental relationships. 

FINDINGS 

1. Thegovernorsplay a minimal role in trainingthe 

Guard and integrating it into the US. Department of Defense Total Force Policy. 

Recent events have demonstrated the limited role that 

state officials will play in controlling aspects of National 

Guard operations that relate to its national military role. 

In its 1990 opinion Rudy Perpich, Governor of Minnesota, et al. v. The Department of Defense, the U.S. Supreme 

Court unanimously upheld a federal statute allowing the 

president to order members of a state’s National Guard to 

active duty for training outside the United States even 

during peacetime, without either the consent of the gover- nor or the declaration of a national emergency. The Su- preme Court reiterated the generally accepted reality that 

the modem conduct of military operations has evolved 

into a function directed by the federal government. Al- most as an aside, however, the Court assured the states 

that they retain certain powers seemingly taken away by 

the opinion. Thus, the Court pointed out that if a call of 

Advisory Commission on Intergovernmental Relations 1 
the Guard to federal active duty would interfere with a 

state’s ability to address a local emergency, then the governor validly could veto the call-up. Further, even with the 

1986 statutory authority given to the U.S. Department of 

Defense, a governor might legally withhold approval of a 

call-up to active duty “if the order was so intrusive that it 

deprived the State of the power to train its forces effec- tively for local service.” The states also were assured that 

they could continue “the use of their National Guard units 

for any legitimate State purpose.” The states, of course, 

must pay for any strictly state activities. 

2. Current decisionmaking regarding reductions 

in, and restructuring o$ defense forces, particularly as they affect the number of National 

Guard troops and the distribution of equipment 

and skrlled personnel, will have a substantial 

impact on the states and their ability to meet internal responsibilities. 

Plans announced in March 1992 by the U.S. Depart- ment of Defense call for a more than 30 percent reduction 

in the National Guard in each of the states. As a result, 

armories will close and communities may suffer economi- cally. Of equal concern is that some state Guard units will 

lose personnel and equipment that may be vital for responding to natural disasters, civil disorders, and other 

emergencies. These reductions will occur at a time when 

many states are experiencing serious fiscal strain. On any 

given day, between 500 and 1,OOO National Guard mem- bers are at work helping the states meet domestic needs. 

Despite the importance of the National Guard to the 

states, no statutory body or advisory commission exists for 

the governors, collectively, to meet with the military or 

congressional policymakers to discuss these vital issues. 

Although the state adjutantsgeneral work closelywith the 

Defense Department on the full range of operational issues, some of the most significant state policy and resource concerns fall outside their scope of influence. 

Those issues are most appropriately handled at the gubernatorial level. They include, but are not limited to: 

The number of National Guard troops in each ju- risdiction and the type of units (e.g., engineering 

or military police) maintained within the state; 

The role of the Guard in responding to civil disorders and the training and equipment provided for 

such contingencies; and 

Compliance with federal, state, and local environmental protection laws and ordinances. 

States have a strong stake in maintaining the National 

Guard’s ability to respond to civil disorders and emergencies. Furthermore, they are in the best position to evaluate 

the consequences of any change in Guard resources as it 

affects these capabilities. 

3. It is essential to maintain the federal and state 

disaster relief and emergency assistance roles of 

the National Guard. 

The National Guard provides a wide range of relief 

services for states during emergencies. Guard personnel, 

€or example, were mobilized for assistance in massive 

clean-up efforts after crude oil spills like the 1989 accident 

in Prince William Sound, Alaska. They also provide emergency assistance during floods, airplane crashes, civil disturbances, earthquakes, hurricanes, power failures, and 

even for presidential inaugurations, to name just a few oc- casions. Without the National Guard, many states and 

communities could be overwhelmed by an emergency that 

could result in more fatalities and destruction of property. 

The work of the National Guard in emergency situa- tions, as well as providing disaster assistance, is indispens- able to the states and the nation. Any reduction in the 

Guard’s resource base may have negative consequences in 

communities that depend on their support to help manage 

emergencies. It is essential, therefore, that disaster relief 

and emergency assistance receive special attention when 

policies affecting the Guard are developed by the federal 

government. 

4. The use of National Guard units to respond to 

civil disorders remains an ongoing concern. Recent events have highlighted the need for recurring civil disturbance response training. 

The use of the National Guard to quell civil disorders 

in the 1960s and early 1970s in cities and on college cam- puses led to public debate over the role of the National 

Guard in responding to domestic disturbances, particularly 

the use of deadly force by the Guard. The adoption of 

specific Defense Department regulations on this topic and 

increased training by the Guard has reduced public concern about this issue. 

Los Angeles’s 1992 riot reminded America that occa- sional, large-scale civil disorders remain likely. As a result, 

the National Guard again may need to be mobilized by 

state or federal authorities to restore order under volatile 

circumstances. 

Although minimum force is now emphasized by the 

Guard in responding to disorders, National Guard troops 

will be faced with potentially dangerous situations in 

which they will have to make decisions about the use of 

deadly force. Given the heavy fire power now available to 

many criminals, policies on the appropriate use of deadly 

force, designed to protect members of the Guard as well as 

civilians, require diligent oversight by federal and state officials. In particular, decisionmakers must ensure adequate, 

recurring training for the National Guard, and especially 

its officers, in support of this role. 

5. Participation by the National Guard in drug in- terdiction and anti-drug activities raises important intergovernmental issues. 

The National Guard’s domestic role has been expanded to assist civilian authorities in their efforts to eradicate 

illegal drug activities in the United States. The Guard’s 

role was strengthened by the 1989 National Defense Authorization Act, which authorized the loan and lease of specialized equipment to federal and state law enforcement 

agencies €or those purposes. Guard members in state sta- tus, however, are prohibited by policy (although not by 

statute) from direct enforcement activities, such as arrest, 

search, and seizure. Today, Guard troops help patrol land 

entry points into the United States, and perform aerial reconnaissance and surveillance operations. Large-scale 

2 Advisory Commission on Intergovernmental Relations 
anti-drug smuggling operations are now undertaken by 

the Guard in cooperation with law enforcement agencies. 

Lessons learned from these initiatives could lead to im- provements in future operations. For example, cooperative agreements may lead to cost sharing between state 

and federal authorities in their quest to enhance drug in- terdiction activities. 

6. National Guard compliance with federal, state, 

and local government environmental protection 

laws and ordinances needs continuing attention 

by the Guard. In addition, the Guard needs to 

give continuing attention to equal employment 

opportunity to ensure theprogress of women and 

minorities into senior leadership positions, even 

as the Guard is downsized, 

The National Guard in recent years has encountered 

public criticism for its treatment of the environment. 

about the Pentagon’s use of a congressional waiver from 

fines for violations of the Resource Conservation and Re- covery Act (RCRA). 

Recognizing these difficulties, the National Guard 

has begun an initiative called the Environmental Compliance Assessment System (ECAS). This program is de- signed to help the Army Guard identify compliance deficiencies and develop corrective action plans to help 

achieve compliance. The entire assessment process or 

“cycle” is scheduled for completion by 1995. Compliance 

with federal and state environmental protection laws and 

regulations by the National Guard will require many years. 

Cleaning up large amounts of toxic wastes from numerous 

National Guard bases and facilities could become the biggest 

engineering project ever undertaken by the Guard. 

With respect to equal employment opportunities, enlistment of minorities in the National Guard has risen substantially during the past two decades. Approximately 25 

percent of all Guard troops are non-white, and more than 

45,000 women belong to the Guard. The challenge to the 

National Guard leadership for the rest of the decade is to 

develop programs that ensure the progress of minorities 

and women into the senior leadership positions even as 

the Guard is being downsized. 

Some environmental groups have expressed concern 

7. Statutory policy requiring Guard units to be 

called up as complete components-to main- tain their unit integritv and readiness-is not always followed. 

The governors, as commanders in chief of the National 

Guard, have an interest in their Guard units retaining 

to active federal duty. From the perspective of state sovereignty and also federallstate comity, it would appear desir- able that, wherever possible, Guard units retain their 

identification with their home states and communities. 

Combat efficiency, mutual trust and support, and the 

group spirit of the National Guard members are maxi- mized when the unit in which they have trained is called up 

together and, if possible, retained intact. 

Current Department of Defense interpretation of 

“unit integrity,” however, leaves considerable organizational and personnel leeway. Defense Department reguI their organizational and personnel integrity when called 

lations provide that Guard units should be activated as 

such, but further defines units as groups of two or more 

individuals organized to perform a particular function. Ex- perience under Operation Desert Storm again has raised 

the “unit integrity” call-up issue, as indicated by the recent 

report of the Reserve Force Policy Board. 

8. Uncertainties about the availability of National 

Guard units to serve state purposes have caused 

some states to establish alternative “state de- fense forces. ” 

State defense forces are paramilitary, volunteer civilian militia that serve as a back-up force in the event the 

state’s entire National Guard contingent is mobilized by 

the President. In addition, they provide important services 

to the public, for example, maintaining crowd control at 

large public gatherings. Twenty- four states have estab- lished state defense forces. 

Forces in some of these states have had scandals be- cause membership in these units has included neo-Nazis, 

mercenaries, survivalists, and violent felons, and because 

some units have engaged in questionable, unsupervised 

activities. State defense forces are faced with a number of 

problems regarding their role as both a combat force and a 

constabulary group. Many of these forces do not have 

minimum professional standards for recruitment, grade 

classification, training, and career development. 

Although the state defense forces lack federal stand- ing, the National Guard Bureau helps coordinate theiractivities. Several members of Congress have introduced 

legislation to increase the federal government’s involve- ment with and support for these units. 

9. Several states have authorized interstate mutual 

-aid agreements in the event they lack sujjicient 

capacity to respond to civil disturbances or natural disasters. 

Recognizing that emergencies may arise for which 

their own National Guard may lack sufficient manpower 

or equipment, several states have authorized mutual assistance compacts or agreements. 

At the request of another compact member, for example, Virginia Guard troops may be sent outside the state 

and placed under the temporary command of officials in 

the requesting state. Specific provisions in the compact extend to out-of-state Guard members the same liability 

protections applicable to in-state Guard troops. 

Vermont law does not set forth a specific compact, but 

simply authorizes the governor to enter into agreements 

or compacts for mutual military aid, “in case of invasion or 

other hostile action, disaster, insurrection, or imminent 

danger thereof.” Similarly, Michigan’s governor is allowed 

to enter into agreements with other governors for the de- ployment of Michigan Guard forces to their states, in time 

of “invasion, rebellion, public disaster, or catastrophe . . . for mutual assistance in the public interest.” 

Federal law authorizes these compacts, although the 

authorizing legislation was enacted in the early 1950s to 

help meet civil defense needs. Under present law, as 

modified by Executive Order, the Federal Emergency 

Management Agency is responsible for assisting states in 

formulating these agreements. 

Advisory Commission on Intergovernmental Relations 3 
RECOMMENDATIONS 

Recommendation 7 

A Mechanism for Dialogue 

between Governors 

and the Department of Defense 

The Commission finds that the shared state and federal roles of the National Guard, provided by the U.S. 

Constitution, are essential, desirable, and practical. Nevertheless, these roles constantly create a changing array of 

intergovernmental issues that need high-level policy attention. The Commission finds, however, that there is insufficient direct and meaningful consultation between the 

governors of the states, collectively, and the U.S. military 

establishment concerning intergovernmental issues. 

The Commission recommends, therefore, that the 

Department of Defense, the National Guard Bureau, the 

governors of the states, Guam, Puerto Rico, and the Virgin Islands, and the mayor of the District of Columbia develop a more formal, expanded mechanism to analyze the 

issues involved in balancing the national and state roles of 

the National Guard. 

That mechanism should address intergovernmental 

issues, such as the adequacy of National Guard forces 

within each jurisdiction to meet domestic needs; the study 

of military force structure authorized by Public Law 

102-190, Section 402; and possible combination or coordination of certain Reserve and National Guard units. Issues for discussion also could include the need for diligent 

oversight of the use of deadly force in responding to civil 

disturbances; the National Guard’s role in drug interdiction activities; the roles and relationships of state defense 

forces; Guard compliance with federal, state and local environmental protection laws and ordinances; maintenance of unit integrity; and continued progress toward 

meeting equal employment opportunity goals. 

In addition, the Commission recommends that the National Guard have membership on the Joint Chiefs of Staff. 

Recommendation 2 

Special Study of Reserve Forces 

The Commission finds that the study called for under 

Section 402 of Public Law 102-190, may be an invaluable 

vehicle for considering important issues regarding the future of the National Guard and other reserve forces, and 

the relationships between them. Under this provision, the 

Department of Defense must submit to the Congress “an 

assessment of a wide range of alternatives relating to the 

structure and mix of active and reserve forces appropriate 

for carrying out assigned missions in the mid- to 

late-1990s.” The Commission finds, however, that the 

statute does not specifically require an assessment of the 

impact of alternative force structures on the National 

Guard’s ability to meet its state responsibilities, nor does it 

specifically require a study of the feasibility of combining 

the Army and Air Force Reserves with the National Guard. 

The Commission recommends, therefore, that the 

study authorized by Public Law 102-190, Section 402, include an assessment of the impact of alterations in the 

force structure, including the mix of active and reserve 

forces, on the National Guard’s ability to fulfill its state 

responsibilities. Furthermore, the Commission recommends that the study contain an assessment of the feasibility of combining the Army and Air Force Reserves with 

the National Guard. 

Recommendation 3 

Interstate Mutual Aid 

for Emergency Response Needs 

The Commission finds that, as the nation’s military 

forces are downsized in the coming years, the number of 

National Guard troops may be decreased and certain types 

of units and equipment in each state may be reduced to 

inadequate levels or even eliminated. The resulting reductions may leave some states, particularly the less populated ones, without the personnel and equipment neceSSafy 

to respond adequately to natural disasters, civil disorders, 

and other emergencies. 

Furthermore, the Commission finds that some states 

have authorized compacts of mutual aid to protect themselves in the event their own resources are insufficient to 

respond to a natural or civil emergency. 

The Commission recommends, therefore, that all 

states authorize mutual aid agreements for emergency response purposes. Those states with interstate mutual assistance authority should review that authority and, if 

necessary, revise it to reflect contemporary conditions. 

When necessaw, the Congress should approve these 

compacts. Moreover, the Federal Emergency Management 

Agena in accordance with its responsibilities under 50 

U.S.C. App. 2283, should assist, as needed, in this effoorf. 

Recommendation 4 

Unit Integrity 

The Commission finds that National Guard units are 

not identified by state of origin, nor are National Guard 

troops allowed to wear any insignia identifying their state 

affiliation, according to Defense Department policy. The 

Commission believes, however, that information identifying the home state of the unit would boost troop morale 

and would highlight the contribution of the states to the 

nation’s defense and emergency response systems. 

The Commission recommends, therefore, that Department of Defense policy be changed to allow state designation of Guard units, except when in federal service, 

and to allow Guard units to indicate their home state on 

uniforms and equipment. 

4 Advisory Commission on Intergovernmental Relations 
Chapter 1 

Introduction 

Two basic sources of organized military strength exist 

in the United States today: (1) the active Army, Air Force, 

Navy, and Marine Corps and (2) the organized Reserves of 

those services (e.g., the Army Reserve), including the National Guard.’ 

The role of the Army, Navy, Air Force, and Marines in 

America’s national defense and history is well chronicled. 

Less is known of the Reserves, which consist of the following: Army Reserve, Naval Reserve, Air Force Reserve, Marine Corps Reserve, Coast Guard Reserve,’ Army National 

Guard, and Air National Guard.3 

The National Guard, the subject of this report, is a 

centuries

-old institution, with roots going back before the 

“Minutemen.”The Guard plays a vital role in our national 

defense and emergency preparedness systems. Today, the 

Guard has emerged as the foremost reserve of the Army and 

the Air Force, capable, under the Total Force Policy, of providing organized and trained units to engage in missions 

shoulder to shoulder with elements of the active forces. 

In 1992, the National Guard consisted of an estimated 

584,000 personnel (see Appendix ’Ihble 1) organized into 

54 separate state and territorial military commands (the 50 

states, District of Columbia, Puerto Rico, Virgin Islands, 

and Guam), funded at an estimated $9.9 billion! 

An Intergovernmental Institution 

The Guard’s contribution to the national defense 

structure is so significant that it is sometimes forgotten 

that the Guard, unless called up for active duty by the federal government, is under the command of the governors. 

As such, Guard units play an important role in times of civil unrest or natural disasters because they are virtually the 

only military force immediately available to a governor. 

Their importance was illustrated during the May 1992 civil 

disturbances in Los Angeles. 

The National Guard is a unique intergovernmental 

institution by virtue of the roles that both the federal and 

state governments play in its operations and governance. 

This status is exemplified by the fact that Guard members, 

unlike their counterparts in the active or reserve forces, 

take an oath to their state constitution and to the United 

States Constitution. 

Joint federahtate management of the Guard, in 

some instances, has produced productive working relationships. Given the National Guard’s dual domestic 

and national defense responsibilities and its supervision 

by the president, Congress, and the governors, it is not 

surprising that aspects of the relationship also have generated federal/state tensions. Most notably, disputes have arisen in the past over foreign training of Guard units, especially 

in Central America, which culminated in several gubernatorial lawsuits against the federal government. 

Foreign training, however, has not been the sole 

source of controversy. As the Defense Department reconfigures its forces in light of changing international circumstances in the 199os, the role of the National Guard is being hotly debated. For states that rely heavily on National 

Guard forces to assist them in responding to civil disorders, natural disasters, and other emergencies, the outcome of this debate is of utmost concern. 

Advisory Commission on Intergovernmental Relations 5 
Although these have been the most visible intergovernmental issues involving the National Guard, other issues have generated debate between federal and state officials, including topics such as: 

The role of the Guard in disaster relief, emergency assistance, and civil disorders; 

The use of the Guard in drug interdiction and 

anti-drug activities; 

The relationship of the state defense forces to the 

National Guard; 

Compliance with federal, state, and local environmental laws and ordinances at National Guard 

facilities; 

Equal employment opportunity; and 

Maintenance of unit integrity after a Guard mobilization. 

Despite their significance, little research and analysis 

have been conducted on these issues. This study aims to fill 

that gap by first examining constitutional balance in control 

of the Guard. It also examines the issues mentioned above 

and seeks ways to improve cooperation between the federal 

and state governments with regard to Guard operations. 

Evolution of an Idea 

The National Guard was conceived as an artful compromise between the powers of the federal government 

and the states. Two centuries later, this institution continues to evolve and adapt to national and state needs. 

Wy, the National Guard fulfills a vital national defense role. National defense planning has integrated state 

National Guard units into crucial combat, combat support, 

and combat service support elements of the nation’s military 

forces. Federal support for National Guard staffing and 

equipment has expanded in recent years. As a result, almost 

half of Army combat units and over one-third of Air Force 

operational capabilities consist of National Guard units. 

At the same time, the Guard is an indispensable element in each state’s ability to respond to natural disasters, 

civil disturbances, and other emergencies. From time to 

time, these two roles come into conflict. 

Knowledge about the historical origins of the Guard and 

its evolution as an intergovernmental institution is important 

to developing an understanding of federal-state conflicts 

over Guard operations. Chapter 2 provides that perspective. 

Notes 

These are supplemented by the trained personnel available to 

each service through its former members. 

Although a “military service and a branch of the armed forces 

ofthe United States,” the Coast Guard is in the Department of 

Transportation, except “[ulpon the declaration of war or when 

the President directs,” at which time it shall be a service in the 

Navy. 14 U.S.C. Sea. 1 and 3. 

10 U.S.C. Sec. 261. 

Of this amount, approximately 95 percent is provided by the 

federal government. See Appendix Tables 2-4 for federal ap 

propriations figures. 

6 Advisory Commission on Intergovernmental Relations 
The Colonial Militia 

The National Guard predates the founding of the nation and a national military by almost a century and a half.’ 

America’s first permanent militia regiments, among the 

oldest continuing units in history, were organized by the 

Massachusetts Bay Colony in 1636.2 Since that time, the 

Guard has participated in every U.S. conflict from the Pequot War of 1637 to Operation Desert Storm in lWL3 

According to National Guard historians, the greatest 

influence on the Guard was the English military ideas 

brought by the first settlers. These ideas initially were 

based on the view held by medieval Englishmen “that every free, able-bodied male had the obligation to furnish his 

own weapons and turn out under local leaders to defend 

the realm. . . . By the late 15OOs, when Englishmen were 

beginning to plan colonies in the New World, the militia 

had been separated into two categories. Most individuals 

would serve only in a crisis, such as the approach of the 

Spanish Armada in 1588. A select number, however, were 

grouped into trained bands and voluntarily held periodic 

musters for trainir~g.”~ 

In England, control over this force was not in dispute, 

as the growing power of the Parliament preserved civilian 

control over the king’s small army. The elected assemblies, or legislatures, were to do the same in the colonies. 

With the coming of the American Revolution, however, 

colonialists began agitating for a capable militia that could 

take on the British Army. Colonists organized voluntary 

military companies for extra training. Those actions 

evolved and, in 1774, the Massachusetts Committee of 

Safety created a select militia force ready to turn out at a 

minute’s notice-the “minute men.”5 

Chapter 2 

H i st 0 ry of t h e G u a r d 

Constitutional Developments 

Going into the Constitutional Convention of 1787, 

the role of the militia in any new federal government was 

one of the most vigorously debated subjects. Prompting 

this concern was the absence of a unified defense for the 

new country during Shays’ Rebellion in 1786. In that episode, the Commonwealth of Massachusetts resisted attempts by the confederated government to send armed 

forces to suppress the rebels. 

Generally, states had been relied on for money and 

men to equip the army and had been unreliable suppliers. 

As a result, “the need for a more viable national military 

force was generally recognized.”6 

The majority of the convention’s members wanted to 

rely on the state militias as a federal defense force to avoid 

maintaining a large standing army. They would be based in 

the statesbut created mainly for defense of the nation.’ At 

the same time, there was considerable support for allowing the states to retain control over their respective militias. That was because “a national military force had been 

a symbol of tyranny for many colonists and one which they 

did not want their new government to repeat.”’ Thus, the 

final product was an artful compromise between the power of the federal government and that of the states, producing shared authority over military power. 

Advisory Commission on Intergovernmental Relations 7 
Militia Clauses 

Specifically, Article I, Section 8 of the U.S. Constitution 

contains a series of “militia clauses,” vesting distinct authority in the federal government and the state governments. 

Clause 14provides that the Congress has threeconstitutional grounds for calling up the militia: “to execute the 

laws of the Union, suppress insurrections, and rcpel invasions.” All three standards appear to be applicable only to 

territory of the United States. 

Clause 15 gives the Congress the power “[tlo provide 

for organizing, arming, and disciplining the militia, and for 

governing such part of them as may be employed in the 

service of the United States.” That same clause specifically reserves to the states the authority to establish a 

state-based militia, to appoint the officers, and to train the 

militia according to the discipline prescribed by the Congress. As written, the clause seeks to limit federal power 

over state militias during peacetime. 

Armies Clause 

The “armies clause” in Article I, Section 8 conferred 

on the Congress the power to provide for the common defense of the United States, declare war, raise and support 

armies, and make rules for the “government and regulation of the land and naval Forces.” The Congress also was 

granted authority to make all laws “necessary and proper” 

for carrying out such powers. Under this provision, congressional power over the National Guard appears to be 

“far-reaching.’* 

Other Relevant Provisions 

Other sections add to the constitutional underpinnings of our national defense structure. Article I, Section 

10 provides that no state, without the consent of the Congress, shall keep troops or ships of war in time of peace, or 

engage in war unless actually invaded. This section was 

qualified, however, by the Second Amendment to the 

Constitution, which was intended to prevent the federal 

government from disarming the militia.’O Part of the Bill 

of Rights that the Anti-Federalists insisted on, this section 

states: “Awell-regulated militia, being necessary to the security of a free state, the right of the people to keep and 

bear arms shall not be infringed.” 

In addition, Article IV Section 4 provides that the federal government “shall guarantee to every state in this 

Union a republican form of government,” and shall protect each of the states against invasion. At state request, 

the federal government was to protect the states “against 

domestic violence.” Through these provisions, the potential for both cooperative federalism and for tension between the “militia” and “army” clauses was built into the 

Constitution. 

As a result of the constitutional compromise, Article 

I, Section 8 grants the federal government explicit authority to raise and maintain land and sea forces in peacetime 

as well as in wartime. Article 11, Section 2placed all forces, 

including the militia when in federal service, under the 

control of the executive branch by making the president 

the commander-in-chief. Article I, Section 8 gave ultimate control to the Congress, however, by granting it the 

sole power to collect taxes to pay for the military, to declare war, and to employ the militia for common purposes 

of internal security. Existing state militias could be maintained, although troops could be called into national service.” But the founding fathers moderated that authority 

by leaving the individual states with the explicit responsibility for appointing militia officers and for supervising 

peacetime [domestic] training of the citizen-soldiers.12 

Wars Affect Composition 

and Role of Militia 

Federal policymakers subsequently built on the foundation laid in the Constitution to expand and clarify the 

role of the militia. 

President George Washington, a former militiaman 

himself, was a leader in this effort. An advocate of a strong 

militia, he desired “national uniformity in organizing and 

training these units to avoid the chaos experienced during 

the Revolution when militia forces mobilized to support 

the continental^.'"^ To accomplish that goal, Washington 

hoped to divide the militia into two categories: (1) young 

men who would be intensively trained (including summer 

camps) to serve as the mobilization forces; and (2) older 

men who would remain in a lesser state of readiness to 

provide for local needs.I4 

Despite Washington’s views, Congress voted for a less 

ambitious program. The Militia Act of 1 79215 required all 

able bodied men aged 18-45 to serve, to be armed, to be 

equipped at their own expense, and to participate in annual musters.16 From that pool of individuals, the law provided for “two categories of militia, but in a less expensive 

and less centralized form. The vast majority of individuals 

would continue to serve in the common militia, just as they 

had in the past. Avolunteer militia, similar to the Minutemen of 1775, would be the actual ready reserve. These volunteer militia units would consist of men willing to buy 

their own uniforms and equipment, and to undertake extra training without pay. . . . The 1792 act established an 

idea of organizing these militia forces into standard divisions, brigades, regiments, battalions, and companie~,”~~ 

as directed by the state legislatures. 

For the 111 years that it remained in effect, this act 

“defined the position of the militia in relation to the federal government.”18 Most noteworthy was the fact that it did 

not call for any inspection of a state’s militia by the federal 

government. Nor did it specify any penalties for noncompliance with the law. It did establish the post of adjutant 

general in each state, however, and required each brigade 

to have a brigade inspe~tor.’~ 

Another key piece of legislation, passed three years 

later, contained a congressional delegation of authority to 

the president. It authorized the chief executive to call 

forth the militia “whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe.”*O In the case of “an insurrection in any state,” the president also was allowed to call 

out the militia, “on application of the legislature of such 

state, or the executive (when the legislature cannot be 

convened).” Sanctions were leveled against those who 

failed to respond. Service was limited, however, to no 

8 Advisory Commission on Intergovernmental Relations 
more than three months in anyyeare21 A later modification 

also provided federal funds to the states to purchase weapons for those men too poor to buy their own. 

This approach produced varied results. Some states, 

such as New York, Massachusetts, Connecticut, and Pennsylvania, maintained a strong militia on their own initiative. Other states, unwilling to finance the endeavor, allowed their militias to fall into decline. “In many parts of 

the country, the once-a-year muster of an untrained, 

un-uniformed militia company became a subject for ridicule. In other areas, the militia did not muster at 

The War of 1812 tested this unique American defense 

establishment. ’Ib fight that war, “the new republic formed 

a small regular military, trained it in accordance with European standards, and employed it to protect the frontiers 

and coastlines. Although it performed poorly in the offensive against Canada, this small force of regulars, when 

backed by a well-armed militia, accomplished its defensive 

mission in the War of 1812. Generals like Andrew Jackson 

proved, just as they had in the Revolution, that regulars 

and militia could be effective when employed as a team.”23 

‘While the unorganized, or enrolled, militia (as established by the Militia Act of 1792) was dymg a slow death in 

most areas of the country, a different kind of militia organization was taking its place following the War of 1812. Groups 

of men interested in military drill and camaraderie were 

forming volunteer militia companies.”24 The fmt half of the 

nineteenth century saw explosive growth of such militia. 

These volunteers “paid for their own uniforms, which 

were often quite elaborate, and for most of their equipment. After they were firmly established, the volunteer 

units could apply for a charter from the state, and their officers received commissions. As the enrolled militia declined, many statesbegan to rely completely upon the volunteer units, and spent all of their limited federal arms 

and equipment subsidy on them.”s 

Throughout this period, the volunteer militia was primarily an urban institution. Fueling its growth was an increasing number of European immigrants in the 1840s and 

1850s. Most prominent in the cities and towns in which 

they settled were the Irish and German volunteer companies, with names like the “Hibernian Guards” and the 

“German Brigade.” Louisiana’s Creole units conducted 

drills in French, and units comprised of Scotsmen outfitted themselves in 

Civil War and Reconstruction 

With the coming of the Civil War, state militiasplayed 

a pivotal role, as might be expected. “Because the Regular 

Army was so small throughout the nineteenth century,” 

and no reserves existed, “the majority of the U.S. Army 

units which carry Civil War battle honors are from the 

Army National Guard.”*’ 

After the four long years of war, there was “no rush to 

revive the pre-war volunteer units from which so much of 

the Union Army was formed.”2s In the former Confederacy, however, “the situation was different. The southern 

militia units were quickly reformed; one of their main duties was to enforce the ‘Black Codes’ which the reorganized state governments had passed to assure the legal inferiority of former slaves.”29 

In 1867, the Congress suspended the southern states’ 

right to organize their militias until a state was firmly under the control of an acceptable g~vernment.~~ Units 

formed under these governments included many former 

slaves. “The sporadic violence which often resulted did 

not abate until 1876, when Reconstruction officially ended. 

The Republican militia units in the South were promptly disbanded, although black militia units were to survive in Alabama, North Carolina, Tennessee, and 

In addition to enforcing martial law in the South during Reconstruction, the U.S. military was called on to 

complete a variety of tasks following the Civil War, although the citizenry feared a large standing Army. These 

tasks included aiding revenue officers in suppressing illegal production of whiskey and assisting state and local officials in quelling labor disturbances. 

Expansion of the military’s role in domestic life, however, did not occur without debate or response. Reaction to the 

use of the Army in suppressing labor unrest in the North and 

guarding polls in the South during the 1876 election, for example, led to congressional enactment of the Posse Com’tu- 

#us Act in 1878. Designed to limit the president’s use of military forces in peacetime, this statute provided that: 

it shall not be lawful to employ any part of the 

Army of the United States. . . for the purpose of 

executing the laws, except on such cases and under such circumstances as such employment of 

said force may be expressly authorized by the 

Constitution or by act of Congress. . . .32 

Concern over this new domestic role also led the 

states to “reexamine their need for a well-equipped and 

trained militia, and between 1881 and 1892, every state revised the military code to provide for an organized 

force.”33 Most called their state militias the “National 

Guard,” following New York‘s example. Nineteen states 

also established naval forces between 1880 and 1900 (only 

New York’s survives as a federally recognized force).34 

The Militia in the 20th Century 

When the United States declared war on Spain in 

1898, the president did not have the legal right to “federalize” the militia. As a result, National Guard units had to 

volunteer as individuals. Unit integrity was maintained, 

however, as units were sworn in as individuals (often taking the oath en masse), but kept theirprevious structureby 

reelecting their officers and noncommissioned officers. 

Some 165,000 Guard members, representing every state, 

entered federal military service in this ~ay.3~ 

“Despite the difficulties of fighting in a strange environment, the 13,000 Guardsmen who served in the Philippines 

acquitted themselves well. . . . Perhaps more than any other 

major campaign in American history, the success of the fmt 

year’s fighting in the Philippines belongs to the National 

Guard.”36 Regardless of the Guard‘s success, The Spanish-American War demonstrated that, if the U.S. was to be 

successful in its new role as an international power, its military forces were in need of serious ref01-m.”~~ 

Advisory Commission on Intergovernmental Relations 9 
Dick Act of 1903 

Beginning in 1903 through the 1920s, legislation was 

enacted that strengthened the National Guard as a component of the national defense force. Despite rivalry between the regular Army and the Guard, the Dick Act of 

I 90338 was passed, replacing the 1792 Militia Act and affirming the National Guard as the Army’s primary organized reserve. The 1903 law “opened the way for increased 

federal control over the Guard.”39 If a state wanted to 

share in the significantly increased federal funds that the 

DickAct made available, units had to subject themselves, for 

the fmt time, to inspection by Regular Army officers. In addition, they were required to maintain specified unit 

strengths. The act also directed Guardsmen to attend 24 

drills per year and five days of annual training, supervised by 

regular Army instructors. For the first time, federal pay was 

provided for annual training, although not for drills.4O 

Under the provisions of this legislation, the president 

must call out the Guard before taking volunteers for military service. The Militia Act of 19084‘ increased militia appropriations to $4 million, and lifted the previous restriction of nine months active duty time in case of national 

emergency. Through his call, the president could “specify 

the period for which such service is required, and the militia so called shall continue to serve during the term so specified, either within or without the territory of the United 

States. . . .”42 In 1912, the attorney general nullified this 

provision by ruling that the president could not employ the 

militia outside of the United 

A new supervisory structure also was established by 

the 1908 act with the creation of the National Guard Bureau as a Division of the Militia Affairs, Office of the Secretary of War.44 (Later, it was redesignated as the Militia 

Bureau and in 1933, it became the National Guard Bureau.) 

National Defense Act of 191 6 

The National Defense Act of 1916,45 further expanded 

the Guard’s role in national defense (although its primary 

objective was to create the military reserves). One significant provision required new Guardsmen to take an oath to 

the United States as well as to their state. Section 62 of the 

act declared that there would be at least 800 National 

Guardsmen for each congressional district.‘“j It also guaranteed the state militias’ status as the Army’s primary reserve force. Furthermore, the law mandated use of the 

term “National Guard” for that force.47 

Some autonomy had to be surrendered, however, in 

order to get this recognition. The National Defense Act 

prescribed that qualifications for National Guard officers 

would be determined by the War Department, that each 

unit would have to be federally recognized, and that units 

would be organized in accordance with Army organization 

patterns. States could not disband their militias without 

presidential approval. Power was given to the federal government to cut off federal funds for noncompliance. Other provisions specified fiscal and enlistment procedures, 

strength requirements, and school training requirements, 

among other requirement^.^^ 

Moreover, the President was given the authority, in 

case of war or national emergency, to mobilize the National Guard for the duration of the emergency. The 

number of yearly drills increased from 24 to 48, and annual training from five to 15 days. Drill pay was authorized for the first time.49 

Due to continued opposition from the Regular 

Army, the status of the National Guard remained uncertain after World War I “despite the distinguished war 

record of many National Guard divisions. . . . The Regular Army remained unhappy with the Guard’s state ties, 

and some distinguished Guardsmen agreed that a 

48-state force could be unwieldy.”s0 

Subsequent legislation 

The National Defense Act Amendments of 192OS1 did 

not resolve this controversy. The act decreed that the 

chief of the Militia Bureau would be a Guard officer, that 

Guard officers would be assigned to the general staff, and 

that the divisions, as used by the Guard in World War I, 

would be re~rganized.~~ 

Subsequent amendments to the act, the National 

Guard Mobilization Act of I 933,53 created the National 

Guard of the United States as a component of the Army. 

As “part of the Army at all times,” the new Guard, “could 

be ordered into active federal service by the President 

whenever Congress declared a national emergency.”54 

During the perid between the two World Wars, the 

only noteworthy development, although a substantial one, 

took place in 1921, when the federal government recognized 

the first National Guard airborne reconnaissance squadron. 

By 1930, 18 of these units had been created,55 setting the 

stage for the creation of the Air National Guard in 1947. 

Later legislation added to federal oversight of the 

Guard by officially creating the Reserve Forces Policy 

Board of the Department of The board traced 

its origin to the Committee on Civilian Components, established by President Harry S. Truman in 1947, and had 

the responsibility of serving as the “principal policy advisor 

to the Secretary of Defense on matters relating to the reserve 

In a related development, the National Guard Bureau was reorganized into Army and Air Force divisions in 

1950, although the bureau did not become a joint activity 

of the departments of the Army and Air Force until 1958.5* 

After the Korean conflict, the National Guard faced 

controversy about its role in the nation’s defense structure. 

Landmark legislation, the Reserve Forces Act of I 955,59 

barely mentioned the Guard, except to require six months 

of basic training for all Army recruits (Guard members included). This rule conflicted with the National Guard’s 

practice of providing its own training. By 1960, the Guard 

relented and complied with these training requirements.60 

One of the most significant nonlegislative developments 

occurred in 1957, when President Dwight D. Eisenhower 

federalized the Arkansas National Guard to prohibit it from 

assisting in enforcing segregation?’ That action, one observer explains, “ended forever any lingering states’ rights mythology in the role of the Guard as defenders of the liberties 

of the states against federal interference.”62 

10 Advisory Commission on Intergovernmental Relations 
Adoption of the Total Force Policy 

In 1973, a substantial change occurred in the National 

Guard’s mission with the adoption of the Total Force 

Policy (TFP). This policy, developed with the concurrence 

of the governors and National Guard officials, requires 

that all of the active and reserve military organizations of 

the United States be treated as a single integrated national defense force.63 

TFP places increased reliance on the Guard and the 

Reserves as a combat-ready part of the total military force 

structure, while at the same time reducing the federal government’s dependence on the full-time, active defense 

forces and trimming the overall cost of defense programs. 

As a result, the National Guard’s federal mission has been 

extended through training and assignment around the 

globe.” Guard personnel have served with the North Atlantic Treaty Organization in Europe, and in Central 

America and the Middle East. (See Chapter 6 for further 

discussion of this subject.) As a result of this policy, federal 

support for the Guard has increased dramatically as well, 

with federal funding rising from approximately 65 percent 

in 1933 to more than 90 percent currently.6’ 

Conclusion 

Historically, the National Guard has been a key component of national defense, fighting in all of this nation’s 

major conflicts. The Guard provides a trained and capable 

military force, able to provide rapid augmentation and reinforcement in time of call or mobilization. 

Despite its development as a key component of national defense, the Guard also has retained strong constitutional and institutional ties to the individual states, a 

unique accomplishment. The next chapters look at the 

contemporary Guard in its roles as both a federal and a 

state institution. 

Notes 

Jim Dan Hill, The Minute Man in Peace and War: A History of 

the National Guard (Harrisburg, PA: The Stackpole Company, 

1964). For additional information on the history of the Guard, 

see John K. Mahon, History of the Militia and the National 

Guard (New York: Macmillan, 1983) and R. Ernest Dupay, The 

National Guard: A Compact History (New York Hawthorn 

Books, 1971). 

Robert K. Wright, Jr., and Renee Hylton-Greene, A BriefHistory of the Militia and the National Guard (Washington, DC: 

National Guard Bureau, 1986), p. 2. These regiments and the 

troops that fought at Lexington and Concord are still active 

units of the Massachusetts National Guard. Pennsylvania, given its settlement by pacifist Quakers, trailed the other colonies 

in creating a militia. A mandatory militia was not established 

until 1777. 

U.S. Department of Defense, Departments of the Army and 

Air Force, National Guard Bureau, AnncialReviewof the Chiel 

National Guard Bureau (Washington, DC, 1992), p. 2. 

Wright and Hylton-Greene, A Brief History of the Militia and 

the National Guard, p. 1. ’ In effect, the committee was a “shadow” government representing the revolutionary, or Patriot, sympathizers. See Wright 

and Hylton-Greene, A Brief History of the Militia and the National Guard, p. 3. 

Peter A. Fish, “The Constitution and the Training of National 

Guardsmen: Can State Governors Prevent Uncle Sam from 

Sending the Guard to Central America?” Journal of Law Md 

Politics 4 (Winter 1988): 597. 

Samuel J. Newland, “The National Guard: State versus Na- tional Control,” Public Administration Review 49 (January1 

February 1989): 69. 

Ibid. 

Fish, “The Constitution and the Training of National Guardsmen,” p. 603. 

lo Wright and Hylton-Greene, A Brief History of the Militia and 

the National Guard, p. 9. 

l1 Fish, “The Constitution and the Training of National Guardsmen,’’ p. 601. 

l2 Wright and Hylton-Greene, A Brief History of the Militia and 

the National Guard, pp. 10-11. 

l3 Ibid, p. 9. 

l4 Ibid. 

l5 The Militia Act was two pieces of legislation passed during the 

same month (1 Stat. 264 and 1 Stat. 271). Ibid. 

Fish, “The Constitution and the Training of National Guardsmen,” p. 604. 

l7 Wright and Hylton-Greene, A Brief History of the Militia and 

the National Guard, p. 10. 

l8 Ibid. 

l9 1 Stat. 271, Sea. 6 and 10. 

21 1 Stat. 424, Sec. 4. 

22 Wright and Hylton-Greene, A Brief History of the Militia and 

23 Ibid, p. 13. 

24 Ibid, p. 14. 

25 Ibid. 

26 Ibid., pp. 14-15. 

27 Ibid., pp. 19-20. 

28 Ibid., p. 21. 

29 Ibid. 

30 14 Stat. 485, Sec. 6 (enacted March 2, 1867). 

31 Connecticut, Illinois, Kansas, Ohio, and the District ofColumbia also had black militia units. Wright and Hylton-Greene,A 

Brief History of the Militia and the National Guard, p. 21. 

1 Stat. 424. 

the National Guard, p. 10. 

32 20 Stat. 145 (1878). 

33 Wright and Hylton-Greene, A Brief History of the Militia and 

34 Ibid. 

35 Ibid., p. 23. 

36 Ibid., p. 25. 

37 Ibid., p. 26. 

38 32 Stat. 775. 

39 Wright and Hylton-Greene, A Brief History of the Militia and 

40 Ibid. 

41 35 Stat. 399. 

42 35 Stat. 399, Section 4. 

43 29 Opin. of the Attorney General 322 (1912). For further legis- lative history and background, see Wright and Hylton-Greene, 

A Brief History of the Militia wid the National Guard, pp. 29-32. 

the National Guard, p. 22. 

the National Guard, p. 27. 

44 35 Stat. 399, Section 11. 

4s 39 Stat. 166. 

Advisory Commission on Intergovernmental Relations 11 
46At the time, this resulted in a 400,000-member National 

Guard. Based on the current composition of Congress, a 

428,000-member force would be required. 

47 Wright and Hylton-Greene, A Brief History of the Militia and 

the National Guard, p. 27. 

Ibid., pp. 27-28. 

49 Ibid. 

Ibid., p. 35. 

51 41 Stat. 759. 

52 Wright and Hylton-Greene, A Brief History of the Militia and 

53 48 Stat. 153. 

54 Wright and Hylton-Greene, A Brief History of the Militia and 

55 Ibid., pp. 35-36. 

56 70A Stat. 1 (1956). 

57 10 U.S.C. 175(c). 

the National Guard, p. 35. 

the National Guard, p. 35. 

58 Wright and Hylton-Greene, A Brief History of the Militia and 

59 69 Stat. 598. 

the National Guard, p. 44. 

Wright and Hylton-Greene, A Brief Hktoty of the Militia and 

the National Guard, p. 41. 

61 Samuel J. Newland, “TheNational Guard: Whose GuardAnyway?” Parameters 18 (June 1988): 50 (note 27). 

62 George I. Stein, “State Defense Forces: The Missing Link in 

National Security,” Military Review 64 (September 1984): 5. 

631mplementation of the Total Force Policy closely corresponded with the end of national selective service and its re- placement by the all-volunteer force. 

64 The first Army National Guard overseas training mission oc- curred in 1977. Wright and Hylton-Greene, A Brief History of 

the Militia and the National Guard, p. 51. 

65 Stein, “State Defense Forces: The Missing Link in National 

Security,” p. 7. 

12 Advisory Commission on Intergovernmental Relations 
Chapter 3 

The National Guard 

Today 

From its origins as a self-equipped, volunteer militia 

in colonial times, the National Guard has emerged as a 

well-armed fighting force and a valuable component in the 

nation’s emergency preparedness network. This chapter 

provides a snapshot of the Guard today. 

Army and Air National Guards 

Army and Air National Guard units are located in approximately 3,200 communities in the 50 states, the District of Columbia, Puerto Rico, the Virgin Islands, and 

Guam. More than 584,000 individuals served in the Guard 

during fiscal year 1992 (see Appendix nble 1). Federal law 

clearly sets forth the purposes of the National Guard and 

the armed forces reserves: 

The purpose of each reserve component is to 

provide trained units and qualified persons available for active duty in the armed forces, in time of 

war or national emergency and at such other 

times as the national security requires, to fill the 

needs of the armed forces whenever, during, and 

after the period needed to procure and train additional units and qualified persons to achieve the 

planned mobilization, more units and persons are 

needed than are in the regular components.’ 

Furthermore, federal law provides that “to secure a 

force of units which, when combined, will form complete 

higher tactical units, the President may designate the units 

of the National Guard. . . to be maintained in each state 

and temtory, . . .” with organization and composition the 

same as for the Army and Air Force.z 

The federal government, therefore, determines the 

number of authorized National Guard personnel and the 

unit mix available across the co~ntry.~ However, federal 

law reserves to the states authority to locate the units and 

their headquarters. Moreover, federal officials may not 

change any branch, organization, or allotment “located entirely within a state” without the approval of the g~vernor.~ 

Detailed federal guidelines, both statutory and regulatory, govern the organization and operation of the National 

Guard. Regulations issued by the National Guard Bureau 

spell out the policies, procedures, and responsibilities of the 

Guard, and provide guidance for the employment of Army 

and Air National Guard units, personnel, and equipment in 

support of state and local government authorities? 

According to law, individuals with no previous military service may enlist in the Guard for a specified term set 

by the secretary of defense, which must be at least three 

years. Those with previous military service may enlist for 

any specified term, with a one-year minimum. Defense 

Department regulations permit extension of enlistments 

for at least six months, at the Guard member’s request. If 

the Congress declares a national emergency, however, enlistments may be extended involuntarily for a maximum 

period of six months after the end of the emergency.‘ 

By law, Guard members must complete at least 15 

days of active duty training each year and one weekend of 

inactive duty training per month.’ When called to federal 

active duty, members are relieved of their state Guard responsibilities for the duration of federal service.* 

Advisory Commission on Intergovernmental Relations 13 
Army National Guard 

National Guard members make up almost 60 percent 

of the active Army? That figure has remained fairly constant since 1950, although from the 1700s through World 

War 11, the Guard was usually substantially larger than the 

active Army’O (see Table 3-1). 

Table 3-1 

Army National Guard as a Percentage of the Army 

Guard as 

Number Number of Guard as 

of Guard A?y Percent of Percent of 

Year Members Active Activesa Total Army 

1903 

1916 

1930 

1940 

1950 

1960 

1975 

1985 

1989 

116,547 

132,194 

182,715 

241,612 

352,863 

407,549 

403,057 

450,696 

456,960 

69,595 

108,393 

139,378 

269,023 

593,167 

873,078 

781,316 

780,787 

769,741 

67% 

122 

13 1 

90 

59 

47 

52 

58 

59 

14 % 

14 

14 

14 

23 

22 

19 

19 

19 

a Excludes members of Reserve. 

Source: National Guard Bureau, “Discussion Paper: National 

Guard Force Structure” (undated), p. 2. 

In FY 1992, the Army National Guard accounted for 

an estimated 439,000 personnel, 75 percent of the total 

Guard (see Appendix Tables 1 and 5). The Army Guard 

grew by more than 80,000 soldiers during the 1980s 

build-up.” In FY 1991, Army Guard forces provided 44 

percent of the combat units, 31 percent of total combat 

support, and 25 percent of the combat service support 

units of the total Army.12 

The fiscal year 1993 Army Guard appropriation request was approximately $5.8 billion (see Appendix Tables 

2 and 3). That compares with total expenditures of $2.1 bil- lion in fiscal year 1981 and $5.8 billion in fiscal year 1991 for 

personnel, operations and maintenance, and militq con- struction programs. 

Air National Guard 

The Air National Guard has a much smaller force of 

approximately 145,252 (see Appendix Tables 1 and 5). In 

1991, Air Guard units provided more than 90 percent of 

peacetime alert forces and contributed 86 percent of Air 

Force tactical reconnaissance ~apabi1ity.l~ Its fiscal year 

1993 appropriation request totaled $4.3 billion (see Appendix lAbles 2 and 4). 

Federal Salary and Fringe Benefits 

Like other members of the nation’s armed forces, National Guard members are paid by the federal government 

for their federal service. Defense Department regulations 

may set different rates of compensation for the uniformed 

services, the National Guard, and the resewe components.’* 

In addition to a salary, members of the National 

Guard are entitled to a number of federal benefits and allowances during their enlistment. The benefits are uniform regardless of the state of residence, but they vary by 

the category of service-inactive duty for training (drill), 

active federal duty for training, and active duty.I5 

Guard members who are on inactive duty for training 

usually are eligible for full-time Serviceman’s Group Life Insurance; military exchange privileges; medical care for injuries incurred while traveling to and from drills; access to military clothing sales stores, open mess facilities, post theaters, 

and transient billets, if available; medical aid; space-available 

air transportation; and authorized survivor benefits. 

For Guard members on active duty for training or active duty, benefits usually include access to most military 

and base post facilities, including exchange and commissary facilities and open messes; limited medical and dental 

care; and access to most base post recreational and entertainment facilities. Other benefits include a 6 percent interest rate cap on debts incurred before Guard members 

are called up for active duty.16 

Integration of the Guard 

Into the Armed Forces 

As a full partner in implementation of the Total 

Force Policy, the Army and the Air National Guards 

have assumed a critical role in the nation’s defense 

strategy. They are responsible for 100 percent of the 

Army light antitank infantry battalions, infantry scout 

troops, and heavy helicopter companies.” As of 1990, 

they provided 92 percent of the Air Force’s continental 

U.S. strategic interceptors, 51 percent of the field artillery battalions, 49 percent of maintenance units, 35 percent of tactical airlift, 32 percent of communications 

units, and 24 percent of air rescue.18 

Under Army plans, each State Area Command of the 

National Guard (Joint State Area Commands on Mobilization) is assigned to conduct peacetime planning and 

training, and postmobilization execution for the security 

of key Defense Department assets and critical facilities. In 

a worst-case scenario, based on a massive security threat, 

this responsibility has been estimated to justify more than 

200,000 National Guard positions.lg 

Specific instructions are given for the responsibilities of 

federal active duty Guard units during natural disasters and 

other federal emergencies and during counter-terrorism 

operations. With respect to civil disturbance support operations, for example, the regulations make clear that 

the protection of life and property and the maintenance of law and order, within the territorial jurisdiction of any State, are the primary responsibilities of civil authorities. The National Guard is 

employed only after all other local and State resources have been fully utilized, or when the situation is beyond the capabilities of the local and 

State civil authorities. National Guard assistance 

is provided in support of civil authorities, not to 

replace civil authority command jurisdiction. National Guard forces will remain under the com14 Advisory Commission on Intergovernmental Relations 
mand of National Guard officers, and all missions 

will be executed through the National Guard 

chain of command.” 

Federal Supervision of the Guard 

As discussed in Chapter 2, the Guard is governed in 

part by the National Guard Bureau, which is a joint agency 

of the departments of the Army and the Air Force. The 

bureau is directed to be “the channel of communication 

between the departments concerned” and the state and 

territorial Guard units “on all matters pertaining to the 

National Guard. . . .” 21 

The National Guard Bureau formulates and administers programs for training, development, and mainte- nance, and acts as the channel of communications between the states and the departments of the Army and the 

Air Force. As a staff agency, the bureau participates with 

the Army and Air Force chiefs of staff in developing and 

coordinating Guard programs. In particular, the bureau 

chief serves as the principal staff advisor to the Army and 

the Air Force on National Guard affairs. The chief reports 

to the secretaries of the Army and Air Force through the 

chiefs of staff.22 Within the bureau’s staff also is a “Joint 

Offices” group that is responsible for all matters pertaining to the Army and Air Guards. On January 1,1992, the 

bureau had an authorized staffing level of 455 persons (219 

military and 236 civilians).23 

The bureau chief is appointed by the president, with 

the advice and consent of the Senate. Individuals selected for the post hold office for a four-year term and 

may be reappointed once. To be eligible for nomination, 

an individual must: 

1) Be an officer of the Army or Air National Guard; 

2) Receive the recommendation of the governor; 

3) Have at least 10 years of commissioned service in 

the active Guard; and 

4) Be in a grade above lieutenant c010ne1.2~ 

The chief issues regulations governing operations of 

the Guard by virtue of authority granted by the secretaries 

of the Army and Air Force. The chief has no command authority, but controls the resources distributed to the state 

Guard organizations and is responsible for maintaining 

combat readiness. The chief may grant or withdraw federal recognition of units and officers, pursuant to the standards of the respective department^.^' 

A second governing body, the Reserve Forces Policy 

Board, is composed of members of the Reserves, representatives from the active components, and appointees of 

the defense secretary.= 

The board, acting through the assistant secretary of 

defense for Reserve affairs, is the principal policy adviser 

to the secretary of defense on Reserve matters. Board 

members may act on matters referred to them by the chair, 

who is a civilian, or by a member of the board.27 

Full-Time Personnel 

In addition to the part-time Army and AK National 

Guard members, federal law provides for full-time support 

personnel, A maximum of 53,100 additional technicians may 

be employed under this authority, who may be active state 

Guard personnel paid by the federal government or military 

technicians. They perform a number of functions in administration, training, and maintenance and repair.28 

For many years, the technicians were considered state 

employees, even though their salaries were paid entirely 

from federal funds. Fringe benefit programs (e.g., retirement and health and life insurance) depended on each 

state.B Because the Guard offered no uniform fringe 

benefits, problems were experienced in competing for 

skilled personnel. This dual statelfederal condition also 

caused problems regarding a technician’s legal status in 

claims against the government arising from accidents occurring within the scope of empl~yment.~~ 

The National Guard Technician’s Act of 19W authorized federal employee status for technicians, set forth a 

fringe benefit program, clarified the technicians’ legal status 

by placing them under the Federal Tort CiaimAct, and recog- nized the military and state characteristics of the technician 

program. Under this law, approximately 42,000 National 

Guard technicians were converted from state to federal status on January 1, 1%9.32 

Strong Crass Roots Support 

The Guard has long benefited from strong grass roots 

The armory has long been the center of community 

social life in many small towns. Fifty state National 

Guards are able to bring political pressure to bear 

on members of the Congress through Adjutants 

General and Governors and through the Washington-based National Guard Association.33 

The National Guard Association of the United States 

(NGAUS) was created in 1878 to provide united National 

Guard representation before Congress. The association 

represents approximately 56,000 commissioned officers 

and warrant officers of the Army and Air National Guard. 

In describing its history and mission, NGAUS says, 

In the first constructive meeting of the officers of 

the North and South after Reconstruction, the 

organizational meeting of NGAUS had a goal of 

obtaining better equipment, standardized training and a more combat-ready force by petitioning 

Congress for resources. NGAUS today, well over 

a century later, has the same mi~sion.~‘ 

To those goals should be added the “successful continuation of the unique, historic, dual federal and state mission 

of the National Guard [and ensuring] that the National 

Guard continues to be recognized as a key element in the 

Total F0rce.1’~~ 

Martha Derthick traced the history of the National 

Guard Association of the United States and concluded: 

The political record of the Guard in years following World War 11 is imposing. . . . The NGAs 

goals, after all, were not radical. The NGA was 

after “wherewithal,” in General Walsh’s happy 

support. 

Advisory Commission on Intergovernmental Relations 15 
phrase. In asking men, money, and material, the 

Guard was seeking only to retain the position it 

had held throughout the century as the Army’s 

first-line reserve force. . . . The Guard’s goals 

were essentially defensive. In advancing them, 

the NGA had the advantage of speaking for a recognized interest group of long standing. When 

the NGA approached Congress or the executive 

branch, it did so with an acknowledged “right to 

speak” for an interest with an acknowledged 

“right to be heard.”36 

Jim Dan Hill observed: 

Such success and solidarity of purpose demonstrated by the Guardsmen naturally have stimulated some flattering imitation and the inevitable, 

cynical criticism. Be that as it may, the National 

Guard spokesmen and their predecessors in the 

Association, beginning in 1876, appear to be the 

first Americans who, in pride of voluntary military service to the Nation, have lobbied so long 

and vigorously to guarantee their being among 

the first on the front line against a foreign foe. It 

is not a minor di~tinction.~’ 

Especially significant recent legislative accomplishments reported by the National Guard Association include: 

Dedicated equipment procurement funding 

for the Army and Air National Guard in Fiscal 

Years 1989-90; 

Creation of the position of Assistant Secretary of Defense for Reserve Affairs, a position designed to promote the interest of the Guard and 

Reserve at the highest levels of the Department 

of Defense; 

Defeat of various attempts to dilute state 

control of the National Guard in peacetime, particularly a successful effort to ensure that the 

Guard personnel are under the command and 

control of the National Guard chain of command; 

and 

In the fiscal Year 1990Authorization Act, preserved National Guard force structure levels 

pending overall review of total force structure 

and force 

In 1989-90, the Congress enacted other legislation of interest to the National Guard Association. This included legislation making permanent authority for federal support of 

National Guard drug interdiction and counterdrug activities, 

expanding the Montgomery GI Bill for the Selective Reserve to include vocational and technical education, and authorizing specialized support to military associations by the 

military departments. A bill that would have severely restricted National Guard access to federal land for training 

was amended to eliminate unacceptable feat~res.3~ 

The enlisted personnel counterpart to the National 

Guard Association is the 60,000-member Enlisted Association of the National Guard of the United States. 

Founded in 1970, the association is organized on state and 

national bases, with support from other sources as 

The Adjutants General Association of the United States 

(state and territorial) has generally supported legislative 

positions of the National Guard Association. 

Six years ago, a new coalition of associations representing 25 military-related organizations began operation. 

Although each member of the coalition advances its own 

agenda, they also work cooperatively, pursuing matters of 

interest for active and retired military personnel and their 

families. The 25 associations include, among others, the 

National Guard Association, the National Military Family 

Association, the Air Force Association, and the Reserve 

Officers’ Ass~ciation.~~ 

Conclusion 

Under current constitutional law and legislation, as 

well as national military personnel policy, the federal government has the power to organize and regulate the 

Guard. Over the years, it has assumed the primary role for 

equipping these troops and setting standards for their 

training, at its expense. 

Constitutional authority aside, the states have an 

enormous stake in the ongoing responsiveness and effectiveness of their Guard units. A description of the states’ 

contributions to and oversight of the Guard follows in the 

next chapter. 

Notes 

10 U.S.C. Sec. 262. 

€!L 101 510 set an authorized ceiling of 457,300 troops for the 

Army National Guard and 117,035 for the Air National Guard, 

effective September 30, 1991. 

10 U.S.C. Sec. 104 (a) and (c). 

National Guard Regulation 500-1, Air National Guard Regu- lation 55-04, “Military Support to Civil Authorities,” Septem- ber 15, 1988. 

32 U.S.C. Sec. 302. ’ 32 U.S.C. Sec. 502. 

32 U.S.C. Sec. 325. 

U.S. Department of Defense, National Guard Bureau, “Dis- cussion Paper” (Washington, DC, undated), p. 2 (unpub- lished). 

lo In World War 11, for example, more than 8 million people 

served in the military. During the Vietnam conflict, over 1.5 

million people served in the Army alone, including 12,000 fed- eralized National Guardsmen. 

l1 U.S. Department of Defense, DOD Plan for Reduction in Na- tional Guard and Reserve Forces (Washington, DC, 1992), p. 3. 

l2 National Guard Almanac 1992 (Falls Church, Virginia: Uni- formed Services Almanac, 1992), p. 79. 

l3 Ibid., p. 84. 

l4 37 U.S.C. Sea. 204 and 206. 

l5 See National Guard Almanac 1992, pp. 8-9. Inactive duty for 

training constitutes “training performed in a federal status 

while not on active duty,” including such activities as weekend 

drills and unit trainingassemblies. Active duty for trainingcovers “annual training, particularly in small arms competition, 

attendance at military conferences, short tours for special proj- ects, ferrying of aircraft, and participation in command post 

’ 10 U.S.C. Sec. 104 (b) and (c). 

16 Advisory Commission on Intergovernmental Relations 
exercises and field maneuvers.” Active duty means “full-time 

duty in the military of the United States, other than active duty 

for training.” 

l6 See National GuardAlmanac 1992, pp. 5163; and 50 Appendix 

U.S.C. Sec. 526. 

l7 U.S. Department of Defense, Office of the Secretary of De- fense, Reserve Component Programs, Fiscal Ear 1990: The 

Annual Report of the Reserve Forces Policy Board (Washington, 

DC, March 1991), p. 29. 

l8 Ibid., p. 36. 

l9 National Guard Bureau, “Discussion Paper,” p. 15. 

2o National Guard Regulation 500-1, Air National Guard Regu- lation 55-04, “Military Support to Civilian Authorities,” September 15, 1988. 

*l 10 U.S.C. Sec. 3040 (a). 

22 U.S. Department of Defense, Departments of the Army and 

the Air Force, National Guard Bureau, Annual Review of the 

Chief; National Guard Bureau, Fiscal Ear 1991 (Washington, 

DC, 1992), p. 3. 

23 National Guard Almanac 1992, p. 74. 

24 10 U.S.C. Sec. 3040 (b) and (c). 

25 32 U.S.C. 307; Army Regulation 130-5 and Air Force Regula26 Ibid., paragraph 8. 

27 10 U.S.C. Sec 175(c). 

28 32 U.S.C. Sec. 709. See also National GuardAlmanac 1992, pp. 

74-75. Technicians may be in the competitive or excepted service. Those in the competitive service are hired according to 

procedures established by the Office of Personnel Manage- ment. They are not members of the military. Most technicians 

tion 45-17, paragraph 9 

are in excepted service and are not hired in accordance with 

OPM procedures. They must be members of the military to re- tain their positions. As Guard members, these individuals 

must be assigned to the same unit they work for. 

29 U.S. Congress, House of Representatives, Committee on 

Armed Services, National Guard Technician’s Act of 1968, 

House Report 1823 to accompany S. 3865,Nth Cong., 26 sess. 

in US. Code and Administmtive News 1968, Vol. 3, pp. 

3321-3322. 

30 National Guard Almanac 1992, p. 74. 

31 PL 90-486. 

32 National GuardAlmanac 1992, p. 74. The legislation set a ceiling of 42,500 technicians to be employed at one time. US. 

Code and Administrative News 1968, Vol. 3, p. 3323. 

33 Martin Binkin and William W. Kaufmann, US. Amy Guard 

and Reserve: Rhetoric, Realities, Risks (Washington, DC Brooking Institution, 1989) p. 32. 

34 National Guard Association of the United States, Facts about 

NGAUS (Washington, DC, undated), p. 1. See also National 

Guard Almanac 1992, pp. 103-105. 

35 National Guard Association, Facts about NGAUS, p. 6. 

36 Martha Derthick, The National Guard in Politics (Cambridge, 

Massachusetts: Harvard University Press, 1965), pp. 107-108. 

37 Jim Dan Hill, The Minute Man in Peace and War(Harrisburg, 

Pennsylvania: The Stackpole Company, 1964), p. 345. 

36 National Guard Association, Facts about NGAUS, p. 5. 

39 Ibid. 

4o See National Guard Almanac 1992, pp. 105-106. 

41 Paul Arcani, “Introducing the Military Coalition,” The RetiEd 

Oficers Magazine 47 (May 1991): pp. 20-25. 

Advisory Commission on Intergovernmental Relations 17 
18 Advisory Commission on Intergovernmental Relations 
Chapter 4 

State Authority 

and Support 

for the 

National Guard 

Although sometimes overlooked, the states have a 

major stake in their National Guard units. That importance is based on the fact that the Guard, unless called 

up for active federal duty, is under the command of the 

governors. This chapter explores the Guard’s vital role 

as a state institution. 

State Mobilization of the National Guard 

What the Guard Does 

The Guard is the only military force immediately 

available to a governor in times of civil unrest and natural 

or human disasters. One Defense Department informal 

estimate is that 280,OOO National Guard “positions” are 

needed as the minimum essential force to meet routine 

and major state disaster-relief requirements.* 

During FY 1991, some 7,848 members of the National 

Guard spent over 44,805 personnel-days on state active 

duty. Guard personnel were called up by the governors of 

42 states for 337 military support missions, including one 

civil disturbance, 76 natural disasters, and 53 search and 

rescue operations. In addition, the National Guard used 

more than 875,000 training days to support federal, state, 

and local law enforcement officials in drug-control activities during that period.* 

Past assignments included such varying activities as 

keeping New York City armories open as shelters for the 

homeless to providing aerial support for damage assessment 

after a major fuel spill in Desha County, Arkansas. Crowd 

control support was provided during the annual Kentucky 

Derby, and Guard members also helped establish law and 

order on a Mohawk Indian Reservation where rival factions were in a dispute over gambling.3 

Missions required of the state Guards typically fall 

into the following categories: 

1) Law and order (a substantial force maybe used to 

augment and/or replace civilian law enforcement); 

2) Medical (to augment civilian capabilities in emer- gencies and provide routine care to drilling and 

full-time National Guard soldiers); 

3) Transportation, including air lift (to enhance ci- vilian capabilities and provide both emergency 

transportation and support to routine National 

Guard missions); 

4) Engineering (sufficient to provide emergency 

capabilities and support routine National Guard 

missions); 

5) Maintenance (a force to maintain equipment for 

missions); and 

6) Administration (limited to 5 percent, to manage 

the f~rce).~ 

How the Guard is Mobilized by the States 

Normal day-today requirements for military support to 

civil authorities are conducted by the National Guard in a 

state active duty status. Attendant costs are paid by states. 

Advisory Commission on Intergovernmental Relations 19 
States use various methods, typically authorized by statute, to call the Guard to duty. In California, for example, lo- cal authorities call the state's Office of Emergency Services 

to request aid. If the office concurs, it notifies the governor. 

The governor must agree, and issues a mobilization order. 

State officials then call the National Guard headquarters, 

which notifies members to report to the appropriate armory. 

Units are selected according to the specific duties they are 

expected to perform (e.g., engineering and medical units for 

natural disasters, such as tornadoes and floods). 

Guard units are deployed after notification by local 

authorities, who also instruct members as to when and 

where to take action. In the case of the 1992 Los Angeles 

riots, the Air National Guard took action first, helping to 

fly California Highway Patrol officers to the scene.s 

Costs and Benefits 

According to a 1992 survey of state adjutants general, 

states spend more than $300 million annually for Guard 

activities (see Table 4-1). In addition to federal pay and 

benefits (described in Chapter 3), Guard members are eligible for pay and benefits from their states, because of 

their dual mission status. Pay rates and other benefits vary 

from state to state. Arkansas, for example, provides a $40 

per day minimum salary to those on state active duty. Indiana compensates its Guard members at a daily rate 

equal to 12 times the federal minimum hourly wage. Minnesota pays a $130 daily minimum. 

Practices for reimbursing expenses vary as well. California Guard members on active duty get a maximum of 

$116 daily (if they submit lodging receipts) and 25 cents per 

mile for use of an automobile. New Mexico sets a $58 daily 

maximum. Ohio Guard members receive at least an $8 per 

diem and a $6.07 daily subsistence payment? 

To help recruitment, state legislatures have provided 

additional benefits in recent years. These include enlistTable 4-7 

State National Guard Spending Summary, 

by Function - Fiscal Years 1990-1 992 

Function 1990 1991 1992= 

Personnel $142,550,445 $143,976,471 $145,121,936 

Operations/ 

Maintenance 105,207,535 103,032,253 109,844,317 

Capital Construction 49,8 11,133 39,562,037 50,752,540 

Equipment 2,229,295 1,497,363 1,745,737 

Other 41,835,462 28,779,308 21,340,008 

Total' 341,633,870 316,847,432 328,804,538 

e-estimate 

Some states had offsetting revenues from local governments 

that lowered their actual expenses. This applied to 21 states in 

1990 and 1991, and 24 states in 1992. 

Source: ACIR compilation based on information from state adjutants general. 

ment and reenlistment bonuses, scholarships and tuition as- sistance, retirement programs, improved medical benefits, 

legal assistance, special automobile license plates, and life 

insurance programs. Recently, many states provided deferrals of state income tax payments and waivers of income tax 

interest and penalties for Guard members involved in Operation Desert Storm, paralleling federal initiatives.' 

State employees who are called to active federal National Guard duty receive job protections which, in some 

cases, exceed those granted by federal law. Individual states, 

for example, may grant any state employees called to active 

duty military leave with pay, military leave without pay, or 

supplemental pay. In addition, Illinois and Oregon continue to pay health insurance for employees and dependents 

while on military leave. Most states give state government 

employees seniority and/or retirement credit for temporary active duty service. Automatic pay increases and accumulation of vacation/sick leave also are common.8 

When under state control, the National Guard unitsare 

subject to state codes of military justice, rather than the uni- form code of military justice that is applied to the national 

military establishment. Due to concerns over the lack of uniformity inherent in this approach, proposals have been made 

to preserve state control while gaining the benefits of uniformity, by having the states adopt the federal code? 

State Supervision of the Guard 

Just as the National Guard Bureau oversees federal 

Guard activities, each state has an adjutant general to run 

the Guard.lo As discussed in Chapter 2, the position of 

state adjutant general originated approximately 200 years 

ago with enactment of the Militia Act of1792. 

The adjutant is the federally recognized governor's 

agent, who provides linkage between the state and federal 

authorities. As a result, the adjutant manages the state 

National Guard in accordance with federal and state laws 

and Army and Air Force regulations. 

The adjutant general is appointed by the governor in 

48 states. The adjutant general is elected by the public to a 

four-year term in South Carolina, and by the state legislature every two years in Vermont." Only 16 states require 

state legislative approval of the governor's appointee.12 

Term limits vary. Primarily, adjutants serve at the pleasure 

of the governor, but 17 states set a term length, typically 

two to seven years.I3 

The primary statutory prerequisites for appointees to 

the position of adjutant general include previous National 

Guard and/or military service, attainment of the military 

rank of commissioned office, and federally recognized service. Typically, appointees must have a minimum number 

of years of military service (frequently ten) and service as a 

commissioned officer to be eligible for app~intment.'~ 

Interstate Cooperation 

To help stretch their resources, some states have executed different types of interstate compacts, authorizing 

governors or adjutants general to enter into agreements 

for the sharing of National Guard personnel and equipment.I5 

20 Advisory Commission on Intergovernmental Relations 
New York acted first in 1950, by adopting the Interstate Compact for National Military Aid.16 The Congress 

endorsed the New York/New Jersey compact in 1952, and 

four years later authorized the addition of any contiguous 

states.17 Subsequently, Connecticut, New Jersey, Pennsylvania, and Vermont approved entry into this compact.18 

Pursuant to a request of the National Governors’ 

Conference in 1967, the Committee of State Officials on 

Suggested State Legislation published a sample National 

Guard Mutual Assistance Compact in 1969.19 The compact “provides for mutual aid in utilization of the National 

Guard for emergencies, flexibility in deployment of National Guard forces, maximum effectiveness of the National Guard when utilized under the compact, and protection of Guard personnel when serving in other states 

on emergency duty.’’M 

To date, Alaska, Kansas, North Carolina, South Dakota, and Virginia have ratified this compact, although the 

Congress has yet to extend federal approval.2l 

States have availed themselves of other opportunities 

for sharing resources in times of emergency. Michigan’s 

governor, for example, is authorized by law to enter into 

interstate agreements for sharing military forces in times 

of invasion, rebellion, or public disaster.22 

Conc I us ion 

The National Guard continues to be the most significant military force available to the states. Each year, in virtually every state, Guard members combat floods, forest 

fires, hurricanes, snow emergencies, and civil disturbances. 

Those roles were fulfilled in addition to the more in- tangible roles played by the Guard in states and communities, where Guard facilities serve as a base for many community activities and keep the military visible at the grass 

roots. 

Dual command and loyalties, in many ways, are 

among the Guard’s greatest strengths. But they also have 

spawned controversy. The next chapter looks at a recent 

Supreme Court case that sprang from the competing interests of the Guard‘s governmental leaders. 

Notes 

U.S. Department of Defense, National Guard Bureau, “Dis- cussion Paper: National Guard Force Structure” (Washington, 

DC, undated), pp. 18,24. 

US. Department of Defense, Departments of the Army and 

the Air Force, Annual Review of the ChieJ National Guard Bumu, Fiscal Ear 1991 (Washington, DC, 1992), p. 110. 

National Guard Almanac 1991, pp. 108- 113. 

National Guard Bureau, “Discussion Paper: National Guard 

Force Structure,” p. 18. 

“Bringing in the Guard,” Los Angeles Times, May 1, 1992. 

National Guard Almanac 1992, p. 34-50. 

’ Ibid., pp. 34-35. 

* Supplemental pay is the difference between the individual’s 

state and National Guard salaries. Michigan, New Jersey, New 

York, North Dakota, Ohio, and Rhode Island have supplemental pay programs. Council of State Governments, “State 

Employees and the U.S. Military Reserve: Heeding the Call 

(Lexington, Kentucky, September 1990): pp. 4,7-16. 

William E Bradley, Jr., “The Other Side of the National 

GuardUCMJ Question,” National Guard 41 (April 1986): 2. 

lo 32 U.S.C. Sec. 314. In California, Rhode Island, and the District of Columbia, the title is commanding general. In New 

Jersey and New York, the title is chief of staff to the governor. 

l1 South Carolina Code Ann., Title 20, Sec. 263; Vermont Stat. 

Ann., Title 20, Sec. 363. 

l2 California, Delaware, Florida, Hawaii, Iowa, Kansas, Louisi- ana, Maryland, Missouri, Montana, New Jersey, Oklahoma, 

Pennsylvania, South Dakota, Texas, and Virginia. ACIR com- pilation. 

l3 By law in Illinois and Texas, the adjutant’s term of office is two 

years. Four-year terms are set by statute in Arizona, Connecticut, Iowa, Louisiana, Mississippi, Nevada, Oregon, Rhode Island, and West Virginia. A five-year term is provided in Colorado, New Mexico, and Wisconsin. North Dakota and Utah 

have a six-year statutory term and the Minnesota term is 

seven-years. ACIR compilation. 

l4 Ibid. 

bid. 

l6 National Association ofAttorneys General, Committee on the 

Office of Attorney General, Legal Issues Concemingthe Roleof 

the National Guard in Civil Disorders: StaffRepti to the Special 

Committee on Legal Services to Militiuy Forces (Washington, 

DC, 1973), p. 79. 

l7 70 Stat. 247. 

l8 New York, Military Law, Sec. 22-2; Connecticut General Statutes, Sec 27-38; New Jersey Stat. Ann., Sec. 38A20-2; 51 

PCSA 4501; Vermont Stat. Ann. 20, Sec. 151-154. 

l9 Council of State Governments, Interstate Compacts undAgencia (Lexington, Kentucky, 1983), p. 19. 

National Association of Attorneys General, Legal Issues Con- cerning the Role of the Naiional Guard in Civil Disorders, p. 79. 

21 Alaska Stat. Sec 26:25:010 et seq., Kansas Stat. Ann. Sec. 

48-1701 et seq., North Carolina Gen. Stat. Sec. 127A-175, 

South Dakota Codified Laws Ann. Sec. 33-9-12, and Virginia 

Code Ann. Sec. 44-54.1. 

22 Michigan Comp. Laws Ann. Sec. 32.559. 

Advisory Commission on Intergovernmental Relations 21 
22 Advisory Commission on Intergovernmental Relations 
Chapter 5 

The Governors 

and the 

National Guard - 

Whose Guard Is It? 

As a reserve component of the Army and Air Force, 

the National Guard may be ordered into federal service 

for active duty under a number of statutory authorities. 

Long ago, the president and the Congress enacted laws 

and policies that make the National Guard available for 

service abroad and require the states to comply with federal law and standards as a condition for receiving federal 

funding for training and equipment.’ In the 1980s, conflict 

arose between the administration and a number of governors over training Guard units on foreign soil. 

Methods for Activating the Guard 

Federal law sets forth the general policy guidelines 

under which troops may be activated by the federal government: 

Whenever Congress determines that more 

units and organizations are needed for the national security than are in the regular components of the ground and air forces, the hy National Guard. . . and the Air National Guard, . . . or such parts of them as are needed, together with 

units of other reserve components necessary for a 

balanced force, shall be ordered to active duty 

and retained as long as so needed? 

Methods 

There is a number of ways to activate the National 

Guard and other reservists (see Appendix nble 6). Using 

the “call” method, and consistent with the explicit constitutional language, the president may mobilize the Guard 

if the United States or its territories are in danger of invasion or rebellion, or to carry out the laws of the United 

States. In such cases, no congressional approval is required, nor must an alert be given, but orders must be issued through the governors. Such a call places the Guard 

under federal control. 

Using this authority, the president also may, without 

limitation on the number of troops activated or the duration of service, call the Guard to active duty to suppress 

insurrections. This action may be taken with or without 

the request of the governoror state legislature. Before actually using troops, the president must issue a proclamation directing the insurgents to disperse. 

The National Guard may be ordered to active duty under other statutes, as well. Under the authority of 10 

U.S.C. 673b, the president may, even without a declaration of national emergency, order the Guard to active duty 

without its consent for up to 90 days for any operational 

mission. An additional 90 days may be authorized on a 

presidential finding of neces~ity.~ Under this statute, the 

president authorized the secretazy of defense to order up 

to 200,000 Guard and reserves to active duty in the Persian 

Gulf! On January 18, 1991, the president invoked 10 

U.S.C. 673, which provides that units and individual members of the Ready Reserve (Le., both the Selected Reserve 

and the Individual Ready Reserve) may be ordered to active duty without their consent for a maximum of two 

years, if the president declares a national emergency. Operation Desert Storm marked the fourth time the Guard 

has been called for a foreign emergency since World War 

Advisory Commission on Intergovernmental Relations 23 
11. The others were Korea in 1950, Berlin in 1962, and 

Vietnam in 1968 (see Appendix Table 7). 

Broader Guard and Reserve active duty authority is 

provided by 10 U.S.C. 673a, which authorizes Guard members and reservists to be called, without their consent, for 

up to two years if the president declares a national emergency. Only one million troops may be on active duty at 

any one time under that provision. 

Another statute, 10 U.S.C. 672(a), allows an unlimited number of Guard members and reservists to be ordered 

to active duty without their consent. Service is limited to 

the duration of a war or emergency declared by Congress, 

plus six months. 

Training 

The Congress also has enacted two provisions that affect the ordering of Guard units to active duty for training. 

The first provision was enacted in 1952 and authorizes the 

secretary of defense, without consent of the individuals involved, to order Guard units to active duty for overseas 

training for a period of not more than 15 days a year.5 The 

consent of the governor is required. 

The second provision, known popularly as the 

Montgomery Amendment, modified this 1952 legislation.6 

It prohibits a governor from withholding, in whole or in 

part, consent with regard to active duty outside of the 

United States because of any objection to the location, 

purpose, type, or schedule of such duty. Guard members, 

with their consent, may serve on active duty under training 

authority for a longer period.’ 

Neither Title 10 nor Title 32 of the United States Code 

specifically addresses National Guard active duty training 

outside the United States. Defense Department policy is 

quite clear, however; any Guard personnel performing training outside the United States must be on active duty status.8 

This is consistent with international agreements for defense 

cooperation, for ensuring specific military hes of authority, 

and for making clear the federal status of Guard members in 

case they are subject to terrorist acts while training overseas. 

Disputes over Foreign Training 

Precedent for federal and state friction over control 

of the National Guard was set early in our nation’s history. 

In 1812, the Ohio and New York militias refused orders to 

cross into Canada? The next year, the governors of Massachusetts, Connecticut, and Rhode Island refused to respond 

to the president’s request for the militia. Vermont recalled 

its troops when Great Britain blockaded the East Coast, invaded the country, and burned the national capital.’O 

Tensions continued through the Mexican War, when 

several governors expressed reluctance about having their 

state militias cross into Mexican territory.” Again in 1848 

and 1861, governors made clear their authority to refuse 

the call for militia troops, citing their disagreement with 

the president’s policies and the determination of need.I2 

More than a century later, tension between the president and some governors flared again, when more than 

12,000 Army National Guard troops were assigned to Central America for active duty training in 1985. According to 

a Congressional Research Service (CRS) report, critics of 

these training missions claimed that President Ronald 

Reagan was using these assignments to present a show of 

U.S. military force, to challenge the Sandinista government in Nicaragua, and to prepare a staging area in Honduras for a United States supported “Contra” rebel invasion of neighboring Nicaragua. 

CRS found that governors were split deeply on this issue. Only 23 governors would approve military “training” 

exercises in Other governors threatened to 

use the veto authorized by the Armed Forces Reserve Act of 

195214 to halt this activity. The governor of Massachusetts, 

for example, threatened to bar troops from training anywhere in Central America. Governors from Ohio, Vermont, and Washington also objected to having Guard personnel on assignment in Honduras. The governors of 

Arizona, Kansas, Mississippi, Nevada, New Mexico, New 

York, Texas, and Puerto Rico announced that they would 

consider such training assignments on a case-by-case basis. 

The governor of California successfully resisted a Pentagon request for the Guard to participate in Central American training. Maine’s governor refused to deploy 48 

Maine Guardsmen to participate in joint exercises in Honduras.15 (In Iowa, the legislature sought to bar the state’s 

National Guard from scheduled training in Honduras.) By 

vetoing the training, however, the governors risked the 

loss of federal funds for their Guard units.16 

Following these state initiatives, in 1986, Mississippi 

Representative G.V. “Sonny” Montgomery sponsored an 

amendment to the 1987 Defense Authorization Act’’ (the 

Montgomery Amendment) that would authorize the Congress to order the National Guard to active federal duty 

for training, notwithstanding a gubernatorial veto due “to 

location, purpose, type, or schedule of such active duty.”l* 

Opposition to the amendment came from the National 

Governors’ Association, which contended that it took 

away the governors’ previous statutory authority over active duty training. Little time was provided for public debate on the amendment, which was offered initially on the 

floor of the House. After a brief discussion, the final 

House of Representatives vote was 261-159 in favor of the 

proposal.1Q Subsequently, a Senate-House conference 

committee accepted the amendment without change. 

Conferees did state, however, that 

the governor still will have the authority to block 

the training if he or she thinks the Guardsmen are 

needed at home for local emergencies. The conferees intend that nothing about the words ‘location, purpose, type, and schedule’ should constrain a governor in according appropriate 

priority to state or local emergency, such as a 

flood or other natural disaster.2o 

Governors Undertake Court Challenges 

Following adoption of the Montgomery Amendment, 

several governors sued to overturn the statute. Cases 

were brought against the U.S. Department of Defense in 

federal court, first by Minnesota Governor Rudy Perpich 

and, later, by Massachusetts Governor Michael Dukakis. 

The latter case reached a swift, unhappy resolution, 

from the viewpoint of the governors. A May 1988 decision 

24 Advisory Commission on Intergovernmental Relations 
by the U.S. District Court in Massachusetts rejected the 

plaintiff’s argument that the Montgomery Amendment 

was unconstitutional. Rather, the justice held that “the 

Montgomery Amendment is a valid exercise of Congress’s 

power under the Army clause and does not violate the Militia Clause.”2i Later, the First Circuit Court of Appeals 

upheld the Montgomery Amendment.2z The U.S. Supreme Court refused to hear the Massachusetts a~pea1.2~ 

In Perpich v. US. Department of Defense, the governor 

of Minnesota sought injunctive relief against orders for a 

federal training mission in Central America involving up 

to several hundred members of the Minnesota Guard. 

Specifically, the issue posed in the lawsuit was “whether 

the Congress may authorize the president to order members of the National Guard to active duty for purposes of 

training outside the United States during peacetime without either the consent of a state governor or the declaration of a national eme~gency.”~~ 

The first decision in this case was rendered in August 

1987, when a federal district court determined that the 

governor’s veto power over training missions was statutory 

rather than con~titutional.~~ The Congress, having 

granted the power, could withdraw it, according to the district court. On appeal, a three-judge panel of the U.S. 

Eighth Circuit Court of Appeals reversed the district 

court’s decision in December 1988, citing the intent of the 

founding fathers to give states protection from possible 

abuses of military power by the federal government.26 

The U.S. Department of Justice asked the full appeals 

court to reconsider the case. In June 1989, the Appeals 

Court held 7-2 that the law was constitutional, finding that 

Congress’ defense power is supreme and exclusive.z7 

Governor Perpich requested the Supreme Court to 

review the case because of the importance of the constitutional issue of the state’s authority over peacetime militia 

training and the conflicting decisions in the lower courts. 

When the case reached the Supreme Court, the governors 

of Iowa, Maine, Montana, Ohio, and Vermont joined as 

amici curiae. They saw the issue as a matter of presidential 

accountability to declare publicly the need for operational 

mission support or to declare a national emergency. Disagreement with U.S. policies in Central America appears 

to have been a factor as well. 

None of the major national organizations of state government officials filed an amicus brief in the Perpich case. 

The National Governors’ Association, the National Conference of State Legislatures, and the Council of State 

Governments viewed the issue as being too divisive among 

their members for them to adopt a position.** 

The Supreme Court’s Opinion 

Although the lower courts had conflicting responses 

to the Perpich case, the Supreme Court expressed no 

doubt about itsview when it ruled unanimously against the 

state. The Court concluded that the militia clauses do not 

present a constitutional obstacle to legislation such as the 

Montgomery Amendment. Rather, the Court found that 

the militia clauses plainly provide additional grants of 

power to the Congress so that National Guard units and 

members, whether or not federalized, have a dual status, 

both as state National Guards and as reserve components 

of the Army and Air Force. Regulation of the National 

Guard is governed not only by the militia clauses, but also 

by the broad powers granted to the Congress to raise armies and provide for the common defense.29 The Court 

found that the militia clauses added to federal power in 

three ways. First, they authorized the Congress to organize, arm, and discipline the militia. Second, the clauses 

permitted the Congress to govern the militia when actually employed in training while on active duty in federal service.30 Finally, the Court held that, although appointment 

of officers and authority for training the militia are reserved to the states, such reservation is limited by the 

words “according to the discipline prescribed by the Congre~s.”~~ If such training involves assignment to other countries, the “Congress has the authority to provide it.”32 Subordinate authority of the states to perfom actual training prior 

to active duty does not limit Congress’ training authority af- ter Guard members are ordered into federal service. 

Justices hearing the case rejected the states’ argument that such an interpretation had the practical effect 

of nullifying a significant, constitutionally guaranteed 

state power, namely, to establish a state-based militia, appoint its officers and, most important, train its members. 

Rather, the Court gave precedence to the constitutional 

provisions committing “foreign policy and military affairs 

to the exclusive control of the national g~vernrnent.”~~ All 

of the subsidiary constitutional questions regarding the 

role of the secretary of defense, state authority over the 

content of training, whether the training is outside of the 

United States in peacetime, or the necessity for the president to make a public declaration before Guard members 

may be called up for federal service, were subsumed under 

the Court’s interpretation of congressional authority to 

raise armies.34 

In addition to the Court’s constitutional arguments, 

the justices pointed out that: 

The federal government provides most of the 

funding for the Guard units, for both active and 

inactive duty training. 

Even under the Montgomery Amendment, if the 

federal training mission were to interfere with 

the Guard’s ability to respond to local emergencies, the governor could veto the federalization of 

Guard members. 

The Congress had granted states the authority to 

provide, at their own expense, a separate and additional defense force which is not subject to 

call-up by the federal go~ernment.~~ 

Implications for Federalism 

Important implications for federalism arose from the 

Perpich opinion. 

Expansion of the National Guard’s Federal Role 

One result of the Perpich opinion is that the federal 

government can expand the frequency and size of domesAdvisory Commission on Intergovernmental Relations 25 
tic and overseas National Guard training assignments. 

The president may increase the U.S. military presence in 

any region of the world through National Guard active 

duty training exercises without a presidential declaration 

of emergency and without the consent of governors for 

any particular set of assignments. The National Guard 

may be so utilized by the president under the secretary of 

defense’s statutory authority for ordering Guard units to 

active duty for training, without securing concurrence 

from either the Congress or the states. 

The Supreme Court, while upholding the right of the 

states to train their militias in Perpich, also confirmed the 

existing and fundamental authority of the federal government to determine a federal training regimen or discipline. The practical effect of these interpretations of the 

militia clauses is to reduce the states’ constitutional authority for federal active duty training to a largely ministerial function. 

Retention of Federal Authority 

One misperception of the Perpich case, however, is 

that, if the Supreme Court had upheld the governor’s constitutional authority to give or withhold consent, the president’s ability to call up National Guard units for active 

duty federal service would have been impeded, thus hamstringing national defense. A Minneapolis Stur-Tribune editorial, for example, concluded that if Governor Perpich 

had won the case against the Department of Defense, he 

might have earned two roles in history-first, as the governor who kept the Guard under state control and, second, 

as the individual who weakened the nation’s defenses by 

making the Guard a less reliable military force.36 

Such a conclusion is in error. The Perpich opinion 

dealt only with the statutory authority granted by the Congress for ordering Guard units to active duty for training 

for up to 15days. Noneoftheotherstatutorychoicesavailable to the president for calling National Guard units to 

active duty were involved or threatened with limitation. 

These include the authority of the president to order the 

Guard to active duty for operational missions of up to 180 

days, even without a declaration of national emergency. 

Residual State Authority 

In Perpich, the Supreme Court held that Guard members “lose their status as members of the state militia during their period of active duty training.”37 The states, however, have had no significant reduction in their authority 

over National Guard units when they are not in active federal service. It would seem that, in fact, even after Guard 

troops are called up for active duty, their state character is 

in suspension and resumes at the end of their active duty 

status. All of the references to the state militia contained 

in the U.S. Constitution remain intact. 

Furthermore, footnotes in the Perpich opinion assured the states that they retained certain powers seemingly taken away in the opinion.38 If federalization of the 

Guard would interfere with a state Guard’s ability to address a local emergency, the Court pointed out, then the 

governor could validly veto the call-up. Finally, despite 

the Montgomery Amendment, a governor might legally 

withhold consent to a call to active duty “if the order were 

so intrusive that it deprived the state of the power to train 

its forces effectively for local service.”39 The states were 

assured that they can continue “the use of their National 

Guard units for any legitimate state purpose.”‘” 

States and Foreign Policy 

A crucial question insufficiently examined by the Supreme Court in Perpich is the precise authority under 

which the National Guard may be called into active federal military service. 

The federal government, in its presentation before 

the Court, found it intolerable to give 54 executives of the 

state and territorial National Guards a de facto voice in 

foreign policy because of the potential for constraining the 

federal government in an area where it is constitutionally 

preeminent. In response, the Court spoke in terms of exclusive control by the federal government over foreign policy 

and military affairs, including a reminder that the U.S. Constitution forbids states to enter into agreements with foreign 

powers without the consent of the Congress.41 

The Court’s language with respect to the absolute 

federal power in foreign affairs may be unrealistic, however, 

if its apparent openness to a sweeping prohibition of state 

involvement in foreign policy extends to international relations generally. Free speech on foreign policy matters, 

for example, remains a constitutionally guaranteed right 

of governors. In addition, direct state action in international affairs is especially evident in, but not limited to, 

trade and economic development. Reflecting the opportunities and competition encouraged by a global economy, 

there are thousands of agreements between state and local governments and foreign jurisdictions, primarily with 

their provincial or state counterparts abroad. Extensive 

programs and agreements exist, especially with Canada 

and Mexico, in such areas as trade, transportation, energy, 

and environmental pr~tection.~~ 

Although the Court made it clear in Perpich that the 

Montgomery Amendment is a legitimate exercise of congressional power, the amendment could be reversed without raising constitutional questions because the governors’ veto power over assignments is statutory rather than 

con~titutional.~~ Thus, it may be modified through the political process. That possibility has been demonstratedCongress granted the governors concurrent authority in 

1952 and took it away in 1986. The Congress could restore 

such authority in the future. 

In this respect, the Court continued the intergovernmental posture that it adopted in the Garcia v. SunAntonio 

Metropolitan Transit Authoriry and South Carolina v. Baker 

opinions, in which it held that, if states are unhappy with 

federal legislation, the most likely solution is to seek redress through the political (i.e., legislative or administrative) process. The Court made it plain that, in this case, the 

states are free to protect their interests through the federal legislative process.44 

Those seeking to preserve the dual sovereignty character of the Guard, however, see what appears to be a 

loophole when the secretary of defense uses statutory authority to call the Guard to active duty for overseas training. There is no requirement for the president or the sec26 Advisory Commission on Intergovernmental Relations 
retary to go to the Congress, the states, or the public with 

an explanation. Other statutory authorities that provide 

for some advance notice and opportunity for discussion 

are available for federal mobilization of the Guard for 

purposes other than training. 

This dilemma might have been avoided had the Con- gress adopted any of several legislative options proposed 

at the time it considered the Montgomery Amendment. 

Sen. J. James Exon, for example, advanced a plan that 

would have recognized the dual responsibility of the National Guard to the governors and the nation’s commander-in-~hief.~~ The approach would have allowed the gover- nor to object to active duty of the state Guard, with clear 

authority granted to the president to override such objections and assign the Guard as deemed necessary. Rather 

than removing the governors from the process, this ap- proach would have allowed for an orderly and public exchange of views and fixed accountability for the authority 

vested in the president. 

In considering any potential restraints on presidential 

power over active duty training assignments, it should also 

be recognized that federal statutes give the president au- thority to reduce the funding of any unit that does not comply with federal National Guard operations, even when it is 

in state militia status. In any conflict of wills or difference of 

opinion between the president and a governor over a training assignment, the federal government, with its authority 

over spending, is in an extremely strong position. 

Conclusion 

The modem conduct of military operations has 

evolved into a centrally directed federal function. As the 

Supreme Court demonstrated Pepich, the federal govemment exerts a commanding influence over Guard activities, especially as it relates to training on foreign soil. 

Although the conduct of military operations may be a 

centrally directed federal function, many (especially the 

nation’s governors) would argue that this planning cannot 

be conducted in a vacuum. According to many governors, 

current proposals to make substantial reductions in defense 

forces (in particular, the National Guard) could adversely affect their ability to respond to natural disasters and civd disorders. That subject is explored in the next chapter. 

Notes 

32 U.S.C. Sec. 108. 

10 U.S.C. Sec. 2453 and 32 U.S.C. Sec. 102. 

As of February 15,1991,73,373 National Guards members had 

been summoned to duty under this order. National Guard Almanac 1992, p. 77. 

10 U.S.C. 672(b). 

F!L 99-591, Sec 9122, and PL. 99-661, Sec. 522 both amended 

10 U.S.C. 672 identically to add (f). 

10 U.S.C. 673(b) and 32 U.S.C. 501. 

* U.S. Department of Defense, “Training Authority and the National Guard,” Defense Issues, p. 3. 

Samuel J. Newland, “The National Guard: State versus National Control,” Public Adniinislration Review 49 (January1 

February 1989): 73 (note 27). 

lo Peter A. Fish, “The Constitution and the Training of National 

Guardsmen: Can State Governors Prevent Uncle Sam from 

’RL 94-236. 

Sending the Guard to Central America?” Journal of Law and 

politics 4 (Winter 1988): 597. 

l1 Newland, “The National Guard: State versus National Con- trol.” 

l2 Fish, “The Constitution and the Training of National Guards- men.” 

l3 David E Burelli, “National Guard Overseas Training Missions: 

An Issue for US. Military Manpower Policy” (Washington, 

DC: Library of Congress, Congressional Research Service, 

December 1986), p. 14. 

l4 66 Stat. 481. 

Burelli, “National Guard Overseas Training Missions,” p. 2. 

l6 32 U.S.C. Sec 108 authorizes the federal government to with- hold funding from states: 

If, within a time to be fmed by the President, a state does 

not comply with or enforce a requirement of, or regula- tion prescribed under, this title, its National Guard is 

barred, wholly or partly as the President may prescribe, 

from receiving money or any other aid, benefit, orprivilege authorized by law. 

l7 PL. 99-661. 

l8 10 U.S.C. Sec. 672(f). 

l9 Congmsional Record, August 14, 1986, pp. H6267-H6268. 

2o House Conference Report Number 99-1001 to accompany S. 

21 Ibid., p. 38. 

22 Affirmed per curiam, 859 E 2d 1066 (1st Cir. 1988). 

23 Cert. denied, 490 US. 1020 (1989). 

24 110 s. Ct. 2420. 

25 Perpich v. U.S. Department of Defense, 666 E Supp. 1319 @. 

26 Perpich, No. 87-5345 (8th Cir., December 6, 1988). 

27 880 E 2d 11 (8th Cir. 1989). 

28 Interview with the staff of the State and Local Legal Center, 

r, 110 S. Ct. 2418 and 2427. 

30 Ibid., pp. 2427-2428. 

31 Ibid., p. 2428. 

32 Ibid. 

33 Ibid., p. 2429. 

34 Ibid., p. 2430. 

35 Ibid., pp. 2428-2429. 

36 “Wise Ruling on Perpich’s National Guard Case,”Minneupolis 

37 110 S. Ct. 2426. 

38 Ibid., p. 2428 (note 24). 

39 Ibid. 

Ibid., p. XX. 

41 Ibid., p. 2428 (note 22). To date, no case has been brought to 

the Supreme Court that would delimit state authority as it 

might involve “agreements,” “foreign power,” or “consent of 

Congress.” 

42 John Kincaid, “State and Local Governments Go International,” 

Intergovernmental Perspective 16 (Spring 1990): 8. 

43 10 U.S.C. Sec. 672@) and (d). 

44 469 U.S. 528 (1985) and 485 U.S. 505 (1988). For a full discussion of these cases, see U.S. Advisory Commission on Inter- governmental Relations, Federal Regulation of State and Local 

Governments(Washington, DC, forthcoming 1993), Chapter 6. 

45 Congressional Record, “Federal and State Control of the Na- tional Guard,” January 22, 1987, pp. S113341134. 

2638 (October 14, 1986), p. 475. 

Minn. 1987). 

April 1991. 

Star-Tribune, June 12,1990. 

Advisory Commission on Intergovernmental Relations 27 
28 Advisory Commission on Intergovernmental Relations 
Perhaps the greatest question facing federal and state 

officials concerned with National Guard operations revolves around the role of the Guard in the post-Cold War 

era. As the former Soviet Union collapsed, assumptions 

changed about needsfor national defense. Today, it is reasonably well accepted that: 

Furthermore, fiscal realities are forcing many federal 

policymakers to rethink defense structures and budgets on 

Chapter 6 

Total Force Strategy economic grounds. 

Military personnel reductions will occur on both 

sides in Europe. 

There will be increased warning signs of potential 

military threats in Europe. 

The defense budget will be reduced in real terms. 

The potential for military hostilities involving the 

United States outside Europe must be anticipated. 

and the Future 

of the 

National Guard 

As this situation unfolds, several issues emerge concerning the ability of the National Guard to meet state 

needs during this era of change and downsizing. These issues include, among others, the proper mix of active military and ReserveIGuard components and the allocation of 

duties among them. 

Troop levels 

The U.S. Department of Defense has made proposals, consistent with the above assumptions, to reduce the 

militaly budget. To oversimplify the proposed approach, 

reductions would be made in the number of active duty, 

National Guard, and Reserve soldiers on a roughly 

one-to-one basis, with a near-term goal of reducing the 

overall reserves by 250,000 personnel by 1995. According 

to the Defense Department’s longer term plans, 100,OOO 

active duty troops will be eliminated annually for each of 

the next five years, reducing the regular military from 2.1 

million to 1.6 million personnel.’ 

Proposed National Guard reductions are limited to 

the Army National Guard. The Air Force has concluded 

that the experience and maturity of the Air National 

Guard pilots qualifies them well for any future air missions, and that their experience should not be lost.* 

Actives versus Reserves 

Decisions about prudent force reductions entail estimates not only of total troop needs but also of the readiness level that available troops should maintain. Defense 

planners may opt to place a higher reliance on full-time, 

active duty soldiers or on Reserve forces, activated as the 

circumstances warrant. 

A 1990 Congressional Research Service (CRS) report 

on the recent activation of the Guard and reliance on the 

National Guard and Reserves lays out quite clearly the 

pros and cons of a heavy reliance on the citizen-soldier. In 

general, CRS noted that the Congress has been supportive of increased goals and responsibilities for the National 

Guard while the Department of Defense, as noted above, 

has tended to be in favor of a broadly symmetrical reduction in active and Guard components.’ 

Advisory Commission on Intergovernmental Relations 29 
CRS cited various arguments concerning a lower reserve mobilization threshold, which would structure the 

military so that a relatively small incident will require activating at least some Guard and Reserve units. Proponents 

state, for example, that this approach saves money because reserve units cost less to maintain. They also explain 

that this method requires that U.S. political leaders be assured of popular support for military action before they 

call up troops, thereby decreasing the likelihood of Vietnam-style ambivalence and dissent on the part of the public. 

Supporters of the proposal also contend that not all 

forces required for a military action are needed immediately. Even when a rapid response is required, there will 

rarely be enough airlift and sealift to move all the needed 

forces at the same time. Thus, sufficient time will be avail- able for reserve units to be mobilized and trained before 

movement to the theater of operations. Advocates note 

that enormous strides have been made in the past 20years 

in improvingreserve unit readineqso that units may be 

committed more quickly to more demanding missions. 

Moreover, even a limited reserve call-up sends a signal of 

resolve and national will to adversaries and allies. For 

these reasons, it is argued, a lower reserve mobilization 

threshold would be the preferred approach. 

Numerous defense experts argue against such a tactic, 

however, calling instead for a higher reserve mobilization 

threshold, that is, structuring the armed forces so that a 

force may respond to a comparatively large incident without mobilizing reserve components. 

In support of this view, these experts assert that the 

commitment of U.S. forces to combat in a small incident 

will not be held hostage to the political courage required 

to mobilize reserves. Traditionally, the reserve components have been activated only when a major crisis threatens the entire nation. It is unrealistic, therefore, to expect 

part-time citizen-soldiers to be called up for the kinds of 

minor contingencies that appear to be occurring more frequently in an unstable world and risk sending a signal to 

the international community that could be out of proportion to the seriousness of the crisis. 

Furthermore, some experts note that the decision to 

activate reserves may require excessive dependence on 

unambiguous strategic warnings to justify a timely call-up. 

In this view, history shows that such warnings are frequently absent, sometimes ignored by high-level political 

and military leaders when they do occur, or are effectively 

disguised by deceptions and doubts. 

Finally, opponents contend that successful contingency operations often require rapid execution. For both 

military and public opinion reasons, only active forces can 

respond quickly enough. When all of these reasons are considered, supporters believe that setting a higher threshold to 

trigger reserve mobilization is the best approach. 

Allocating Responsibilities 

In addition to determining how serious the incident 

must be to trigger mobilization of reserve forces, 

policymakers must determine which forces, regular mili- tary or the National Guard/Reserves, should perform the 

required missions. 

CRS identified the following factors that should be 

used in assessing whether militaxy missions should be 

placed in the active or the National GuardlReserve forces: 

Whether the National Guard/Reserves can do 

the mission more cheaply; 

Readiness/response time; 

Availability of adequate personnel; 

Necessary skill qualifications; 

How well National Guard/Reserves are performing similar missions; 

The nature of the threat and the kind of war tobe 

fought; 

Availability of personnel in certain geographical 

locations to fill units; 

?hinii&ii kmai%%a%i-i& +-se%%w%%%a% 

The level of acceptable risk involved; and 

10) Utilization and availability of equipment (which 

usually lasts longer in National Guardhteserve 

 component^).^ 

CW o~s~~edthatthci~ealrn~ 05 adbe and Tesene 

forces should be based on the perceived threats to national security and the military forces needed to meet foreign 

policy objectives. To this must be added the large potential 

savings to be realized by having the Guard and Reserve 

components perform certain functions while maintaining 

total force readiness.’ 

The Guard’s Recent Record 

Indirect criticism of the Guard’s role and its performance in recent military activities has been made by various 

authorities. Some observers have cautioned against undue 

reliance on the National Guard and Reserve to supplement regular Army divisions that would be called on to respond on extremely short notice.6 

GAO Assessment 

The General Accounting Office (GAO) has examined 

several aspects of National Guard operations. In a 1989 

study, GAO found deficiencies among some Guard units, 

especially with respect to training and necessary equipment.’ In 1991, the office examined the Desert Shield/ 

Desert Storm experience for almost 150,000 Army reservists and National Guard members, in both combat and 

support missions. Although the Army has structured some 

of its divisions with both active Army brigades and National Guard “round-out” brigades, GAO reported that none 

of the National Guard armor and infantry round-out 

brigades were deployed. 

As GAO noted, special circumstances complicate the 

effectiveness of these units. 

A roundout brigade is not a distinct segment 

of the division. Rather, it supplements all the division’s elements. Therefore, proficiency of 

roundout units and of their individual soldiers is 

30 Advisory Commission on Intergovernmental Relations 
critical to the overall readiness of the divisions 

they serve.‘‘8 

On its review of these forces, GAO found that: 

The Army has not adequately prepared its National Guard roundout brigades to be fully ready 

to deploy quickly. When the brigades were activated, many soldiers were not completely trained 

to do their jobs; many noncommissioned officers 

were not adequately trained in leadership skills; 

and Guard members had difficulty adjusting to 

the active Army’s administrative systems for supply and personnel management, which are different from those the National Guard uses inpeacetime. Also, when activated, many soldiers had 

serious medical or dental conditions that would 

have delayed or prevented their deployment? 

Defense Department Reviews 

The latest Defense Department comprehensive re- view of its Total Force Policy WP, see Chapter 2), ac- tive-reserve force mix, and military force structure is contained in a report sent to Congress in early 1991. It spelled 

out three strategic military theaters-contingency, Pacif- ic, and Atlantic.’O The only major role for the Guard and 

the Reserves was to be in the Atlantic theater, despite the 

slim prospect of a major land war in Europe.” 

Generally, GAO supported Defense Department 

policies over the last ten years to strengthen the TFP.12 

Under the subject of maintaining early-response capabilities, the agency stated: 

Some observers believe that in view of the recent 

geopolitical developments, reserve forces should 

generally be limited to reinforcing and sustaining 

roles in which they would serve only to supplement active forces during protracted contingencies or a general mobilization and subsequent to 

some initial period of conflict. Others . . . argue 

that many reserve units are fully capable of deploying with active forces in “quick reaction” contingencies.13 

Reflecting on the Persian Gulf experience, then Defense Secretary Richard Cheney observed in a July 1991 

report to Congress that “the National Guard’s frontline 

combat brigades are not likely to be ready to fight on short 

notice and should receive several months of training before being given actual battle duty.”14 The department’s 

assessment was somewhat more sanguine, and perhaps 

more politically prudent, given congressional resistance to 

reduction in National Guard support. In response to a specific statutory inquiry on the effectiveness of Reserve 

component forces, the department found that Operation 

Desert Shield and Desert Storm: 

required the largest mobilization and deployment of Reserve Component (RC) forces in the 

post-World War I1 period. Ove1=231,000 reservists 

from all Services were called to active duty during 

the crisis, and approximately 116,000 of these 

served in the Kuwait Theater of Operations 

(KTO). They played a vital role. What the Department of Defense accomplished in the resolution of the Persian Gulf crisis simply could not 

have been done without the skilled contributions 

of the thousands of Reservists and National 

Guard personnel who served in combat, combat 

support, combat service support and administrative roles both in the theater and elsewhere. 

Volunteers from the Reserves and National 

Guard augmented the active duty force from the 

first day of the deployment, long before the decision to authorize an involuntary call-up. From the 

outset, the Air Force was heavily dependent upon 

these volunteers to provide essential strategic 

airlift. In August, for example, Air Force Reserve 

and Air National Guard volunteers flew 42 percent of all strategic airlift missions and 33 percent 

of the aerial refueling missions.15 

National Guard Perspectives 

From the National Guard perspective, the Defense 

Department policy followed during Operation Desert 

Storm was not quite as rosy. 

The National Guard Association and others raised 

concerns that the round-out brigades were not utilized, a 

fact that seemed to signal retreat from a large National 

Guard role in the Total Force Policy.16 At the heart of the 

association’s concern is the fact that three round-out 

Guard brigades spent 55 days in intensive training prior to 

the conflict in the Persian Gulf. The DOD interim report, 

however, observed that: 

Round-Out Brigades, as expected, were not 

deployed with divisions with an early deployment 

mission. The complexity of modem combat may 

indicate that Round-Out Brigades will continue 

to need some training following activation.” 

The National Guard Bureau gave both a more upbeat 

and a more guarded interpretation of the experience 

gained in Operation Desert Shield and Desert Storm in its 

“After Action Report.” Based on experience through Feb- ruary 28, 1991, the bureau concluded: 

Operation Desert Shield and Desert Storm 

was a significant success for the Army and the 

Army National Guard. USARNG volunteers 

filled critical positions early in the crisis. The 

Army was successful in rapidly deploying slxty 

(60) USARNG COL/LTC level Commands to 

SWA. The deployment of USARNG units made 

a significant contribution to Operation Desert 

Shield and Desert Storm. 

Army National Guard units were ready for 

federalization. The Army and the Army National 

Guard were successful due to years of preparation. All Army National Guard units amved at 

their respective mobilization stations within 72 

hours of federalization. Over 97 percent of our 

USARNG units were at or above deployability 

criteria when federalized. Sixty-seven percent (67 

percent) of all Army National Guard units 

Advisory Commission on Intergovernmental Relations 31 
deployed within 45 days of being federalized. The 

primary constraint to earlier deployment was 

sealift and airlift capability. 

One hundred percent (100 percent) of the 

USARNG soldiers called-up reported for active 

duty. Ninety-four percent (94 percent) of the 

USARNG units’ soldiers were deployable. Six percent (6 percent or 3,974 of 62,411 soldiers) assigned 

to units were not eligible for deployment under 

provisions of U.S.C. 673(b) and DoD guidelines. 

The combat readiness of the USARNG was 

at a historic high preceding the call to federal 

duty. When given the mission to deploy to 

CENTCOM, the Army National Guard demonstrated its ability to alert, federalize, and rapidly 

deploy to the theater of operations.” 

In its 1991 Legislative Action Plan, the National 

Guard Association prepared a special assessment express- ing concern over emerging defense strategies. The association concluded that the Persian Gulf call-up 

demonstrated that, notwithstanding all its successes, the Total Force Policy has not been able to 

fully overcome old prejudices and attitudes within 

the defense establishment. The call-up was structured to ignore commitments to fundamental relationships such as Round-Out and the assigned missions of Guard combat units in established 

contingency/war plans. When called, the National 

Guard was there and was ready; but in several instances, the call did not come or came too late. This 

whole experience will undoubtedly play an important role in future force structure decision^.'^ 

To reduce possible hurdles in calling up the Guard in 

contingency missions, the association distributed a Force 

Structure Study Group report to all of the state adjutants 

general on April 17, 1991. It recommended that: 

Presidential call-up authority should be reviewed 

and legislative relief sought to extend that au- thority to 180 days with an additional 180-day 

, extension. Legislative relief should also be sought 

to automatically mobilize Round-out units if the 

parent unit is called. Removal of these two impediments would help overcome political reluctance to 

use the Guard because of time limitations.20 

The association’s Legislative Action Plan reiterated 

the multiplier benefits of a small active military with primary reliance on citizen-soldiers. The benefits of the National Guard cited in the plan include getting the most effective and least costly force possible, retention and 

preservation of skilled prior service active military personnel in the Guard, assistance rendered to third world nations in building their own national Guard forces, and a 

wide range of senice to communities throughout America.21 

Major General Robert F. Ensslin, Jr., Floridaadjutant 

general and president of the National Guard Association 

of the United States, recently said: 

The Congress and American people are 

presented with the option of a high cost, active 

duty military of questionable need, or a balanced 

military consisting of a “full-time” force to meet 

our nation’s identifiable threats backed up by a 

trained, equipped and ready citizen-soldier force 

capable of being quickly ‘Tie-tuned” to meet a variety of currently obscure threats. Both provide requisite security. The former provides gold plated national defense; the latter provides a balanced, 

capable national defense force that retains the spirit of the (Constitutional) Framers’ intent, and provides to the American tax paying citizenry a peace- time return on the national defense investment.** 

Study Under Way 

Concern about the proper strategy to follow led Congress to order the Defense Department to prepare a report 

on these critical issues. The National Lkfme Authorization 

Act for fiscal years 1992 and 199323 called for the “conduct of 

an independent study to examine the existing and projected 

active and reserve component for structure, force mix, and 

end strength.” That report is due for completion in 1993. 

State Concerns 

For states, changes in the nation’s defense strategy 

could have a substantial impact on the Guard’s ability to 

perform traditional state functions. Drastic reductions in 

the number of National Guard members, changes in the 

distribution of key units (e.g., engineering companies), 

and reduced access to equipment necessary in civil disorder and natural disaster responses could leave states without the personnel or equipment they need to combat a disaster or emergency. 

State interests in the National Guard and concern 

that Defense Department strategy is tending toward reduction in Guard strength led the National Governors’ 

Association (NGA) to adopt a policy statement on this issue in which it states that ‘‘, , . no restructuring of military 

forces should occur without a cost-benefit analysis that 

takes into account the dual role of the National Guard, 

and a review of any proposed reduction of units with appropriate state official^."^^ 

NGA supplemented that policy in 1991 with a resolution 

that supported congressional efforts to take incremental reductions in National Guard troop levels, starting at a level of 

not less than 450,000 and resulting in an end-strength of 

420,000 for the Army National Guard. That resolution reflected the governors’ view that troop strength below that 

level would adversely affect the ability of the Army Guard to 

“train and develop personnel, effectively manage career opportunities, provide opportunities for upward mobility for 

women and minority groups, perform state missions, support 

the war on drugs, and make the most cost-effective contributions to national defense.”25 

A spring 1992 announcement by the Department of 

Defense (DOD) of major reductions in National Guard 

units prompted additional gubernatorial concern. Regarding this DOD proposal, NGA wrote its membership: 

Eight hundred thirty National Guard and re32 Advisory Commission on Intergovernmental Relations 
serve units would be reduced or eliminated during the next two years. . . . Units would be closed 

in all fifty states, the District of Columbia, and 

Puerto Rico, affecting more than 140,OO Guard 

members and reservists. . . . 

While the DOD announcement reflects a 10 

percent reduction, the changes represent more 

than a 30 percent reduction to the National 

Guard of every state. In the years between 

192-1995, some states will lose more than 50 percent of their Guard and reserve personnel. 

With the closing of armories and [the] major 

reduction in personnel, states will suffer an economic loss, given the reduction in federal funds in 

support of the National Guard mission. In addition, some state National Guard units could lose 

in equipment used to handle emergencies and 

other incidents. 

The DOD proposal does not consider the 

dual role of the National Guard, nor does it give a 

cost-benefit analysis that takes into account this 

role as part of the Total Force. 

Last year, Congress asked DOD to provide 

such an analysis prior to any force structure 

changes in the Guard. The Senate Committee on 

Armed Services observed that it would “continue 

to seek rational force structure and force mix 

plans” from DOD, and that their efforts have 

been “frustrated because it had not received 

force structure and force mix plans that it can review analytically.” DOD appears to be ignoring 

this Congressional request by announcing a plan 

that does not consider the force mix or dual role 

of the Guard.= 

Implications of the planned cuts for the states were illustrated by Michigan’s Adjutant General E. Gordon Stump: 

As the state budgets become more and more 

constrained, there are increasingly fewer state resources to deal with natural disasters and related 

emergencies within the states. This is a Guard 

role that should be “beefed up”-not diminished. 

. . . The resource base for providing this assistance 

is indispensable to the states and should be expanded. After all, the National Guard comes at a 

minimal cost compared to maintaining these 

kind[s] of resources on a full-time, everyday basis in 

other public or private sector organizations. It just 

makes sense to utilize the Guard resources more 

fully in this area than has been done in the past?7 

Conclusion 

Following the experience of fighting an unpopular 

war in Vietnam, a deliberate decision was made to meld 

the National Guard with the full-time active military as 

fully as possible. The rationale was to involve a large proportion of the American public by mobilizing the National 

Guard from its thousands of locations throughout the 

United States when needed for national defense purposes. A related benefit of this approach is to permit 

elected officials to have a better sense of public support or 

opposition to any major military operation. This policy 

echoes the original intentions of the founding fathers for a 

small standing army complemented by citizen soldiers 

(and now air personnel as well). Moreover, relying on the 

National Guard provides a larger defense capability, albeit 

with some limitations, for considerably less cost. Direct 

unit comparisons by the Department of Defense indicate 

that National Guard military units cost between 25 and 40 

percent less to operate than regular military units.28 

As planning to reduce American defense forces continues, the key issues in ensuring that the National Guard 

will function effectively in its dual role include: 

Will the governors have anything to say about the 

size and capability of the National Guard? 

Could decisionmaking become more of apartnership with the governors? 

Determination of the best mix of active duty, National 

Guard, and Reserve forces to ensure sufficient military 

preparedness at the lowest possible cost must be made in 

conjunction with the states, given their reliance on the 

Guard for domestic needs. Yet, there are insufficient communication linkages on these issues between the president, 

the secretary of defense, governors, and the military’s 

strategic policymakers. 

Although the National Guard Bureau is the statutory 

channel of communication between the Department of Defense and the states on all matters pertaining to the Guard 

and performs necessq logistical functions between the departments of the Army and Air Force with the state adjutants general, responsibihty for military strategy and priorities lies elsewhere in the Department of Defense. 

In evolving National Guard policy and resources, creativity and initiative are needed to provide better opportunities for dialogue between the governors and DOD. Even 

though national security questions may be involved, the implications of new national directions are of such sislllficance 

to the states that an orderly exchange of views is needed. 

Notes 

Robert L Goldich, “Military Manpower and Compensation: 

Fiscal Year 1993 Budget Issues” (Washington, DC: Library of 

Congress, Congressional Research Service, April 1992), pp. 

James Kitfield, “Total Force,” Government Executive 23 

(March 1991): 13. 

Robert L Goldich, “Iraq-Kuwait Crisis: US. Reserve Call-up 

and Reliance on the Reserves” (Washington, DC: Library of 

Congress, Congressional Research Service, December 1990). 

Warren Lenhart, “Reserve Components: Partners in the Total 

Force” (Washington, DC Library of Congress, Congressional 

Research Service, April 1989), pp. 31-32. 

See Martin Binkin and William Kaufmann, The US. Guard 

and Reserves: Rhetoric, Realities, Risks (Washington, DC: The 

Brookings Institution, 1989). 

U.S. General Accounting Office, Army Paining: Management 

Initiatives Needed to Enhance Reservists’ Tmining (Washington, 

DC, 1989) pp. 3-4. 

5-11. 

’See ibid., p. 32. 

Advisory Commission on Intergovernmental Relations 33 
, National Guard: Peacetime Tmining Did Not Ade- 8 

quatdyPrepare Combat Brigades for Gulf W& (Washington, 

DC, 1991), p. 9. 

Ibid., p. 3. The Defense Department, with somequalifications, 

concurred with GAO’s findings and recommendations. Department officials reported that DOD was taking action on improved medical screening and validation procedures for future 

mobilizations. 

lo U.S. Department of Defense, Total Force Policy Report to the 

Congress (Washington, DC, December 1990). The report was 

prepared in accordance with Sec. 1101 of the National Defense 

Authorization Act for Fiscal Years 1990 and 1991 (PL 

101-189). 

l1 Ibid., pp. 13-31. 

l2 Ibid., pp. 46-47. 

l3 Burton Gellman, “Cheney Says Guard Units May Need Reor- ganizing Secretary Questions Short-Notice Capability,” Wahington Post, March 15, 1991. 

l4 US. Department of Defense, “Conduct of the Persian Gulf 

Conflict: An Interim Report to Congress” (July 1991). The re- port was prepared pursuant to the Persian Gulf Conflict 

Supplemental Authorization and Personnel Benefits Act of 

1991, Title V (PL 102-25). 

l5 Ibid., p. 11-1. 

16The concept of a round-out calls for Army divisions to be 

made up of two full-time active duty combat brigades and one 

Army National Guard brigade. See National Guard Association of the United States, “Legislative Action Plan 1991,” pp. 

4-5. 

l7 U.S. Department of Defense, Conduct of the Persian Gulf War: 

An Interim Report to Congress, p. 11-6. 

US. Department of Defense, National Guard Bureau, ‘‘Army 

National Guard After Action Report (August 2, 1990-February 28, 1991)-Operation Desert Shield-Operation Desert 

Storm, Executive Summary” (Washington, DC, undated), p. 

21. 

l9 National Guard Association of the United States, “Legislative 

Action Plan 1991,” p. 4. 20 , “NGAUS Force Structure Study Group Report” 

(Washington, DC, undated), p. 3. Such legislation subsequently was passed to lift the 18O-day restriction for combat units. 

21 , “Legislative Action Plan,” p. 5. 

22R~bert E Ensslin, Jr., “Public Policy Dimensions of Base 

Force and Reconstitution Strategy for the National Guard,” 

February 1, 1992, p. ii. 

23 PL. 102-190. 

24 National Governors’ Association, Policy Positions 1991-1992 

25 Ibid. 

26 National Governors’ Association, “The National Guard and 

National Defense Policy,” Action Lettec April 10, 1992, p. 1. 

”Memorandum from Major General E. Gordon Stump to 

Bruce McDowell, May 1, 1992. 

28 US. Department of Defense, Total Force Policy Report to the 

Congress, pp. 38-46. 

(Washington, DC, 1991), p. 32. 

34 Advisory Commission on Intergovernmental Relations 
Chapter 7 

Intergovernmental 

Issues 

Involving the 

Civil Activities 

of the 

National Guard 

Although disputes over the operation of the National 

Guard, particularly with regard to its size and foreign 

training exercises, have garnered the greatest public attention, these issues are just two of many relating to the 

Guard’s operations. Other issues of particular intergovernmental importance concern the Guard’s involvement 

in civil or non-military activities, including: 

1) Federal disaster relief and emergency assistance; 

2) Civil disorders; 

3) Drug interdiction and anti-drug activities; 

4) State defense forces; 

5) Compliance with federal and state environmen- tal protection laws and regulations; 

6) Equal employment opportunity; and 

7) Unit integrity. 

Federal Disaster Relief 

and Emergency Assistance 

The range of relief services and emergency assistance 

provided by National Guard units throughout the United 

States historically has been very diverse. Guard members 

have assisted during floods, humcanes, civil distuhances, 

Cuban refugee operations, President Nixon’s inauguration, 

hospital strikes, power failures, searches for missing persons, 

and the Huey I? Newton trial, to cite just a few instances. 

Without the Guard, many communities would be 

sorely tested, or perhaps overwhelmed, by an emergency. 

For example, after more than 10 million gallons of oil 

spilled into Alaska’s Prince William Sound in 1989, 130 

members of the state National Guard cooperated with the 

U.S. Coast Guard, civilian authorities, and active Army 

and Air Force units in the massive clean-up effort. 

The Alaska National Guard Emergency Operation 

Center in Anchorage coordinated the missions, which included communications, aircraft refueling, public affairs 

support, and providing equipment,’ 

The Federal Emergency Management Agency 

(FEMA) is responsible for coordinating the disaster assistance provided by all federal agencies2 In some states, the 

National Guard’s adjutant general is the initial contact for 

working with FEMA; other states have an Office of Emergency Services or similar agency. But the Guard assumes 

primary responsibility for coordination. 

Sometimes, National Guard effectiveness in disaster 

relief is hampered because the federal and state agencies 

responding to the crisis fail to communicate with each other. Different chains of command and failure to take directions from FEMAcontribute to this situati0n.Thi.s was the 

case for the Florida Guard during the 1980 Key West Cuban refugee operation. 

Civil Disorders and the National Guard 

Use of the National Guard to quell civil disturbances 

and help enforce the law is as old as the history of the 

Guard. Often, the Guard is considered to be the only orgaAdvisory Commission on Intergovernmental Relations 35 
nization in the states with sufficient personnel and equipment to assist local police in riot-control operations. 

Civil disorders serious enough to require National 

Guard intervention increased greatly from World War I1 

to 1969.3 During that period, disturbances on college campuses and in America’s cities increased the involvement of 

the National Guard and led to public debate over the use 

of the Guard in suppressing civil disorders. In particular, 

the Detroit riot in 1967and the incident at Kent StateUniversity in 1970 became catalysts for action to restrict the 

use of deadly force in controlling civil disorders? 

After studying the Detroit riot of 1967, the U.S. Riot 

Commission charged both the police and the National 

Guard with indiscriminate firing. It also found that the 

equipment at Kent State was inappropriate for law enforcement duties5 TI avoid a recurrence of these problems, 

the commission recommended training and policy changes 

to make the Guard more effective and competent in such 

situations.6 Others were even more critical of the Guard’s 

actions in domestic situations. For example, the American 

Civil Liberties Union charged that, “All in all, the lives, 

limbs and freedoms of innocent citizens were put in immediate danger on each of the 324 occasions when the Guard 

was called out between January 1968 and May 1970.”’ 

Prompted by these developments, the Guard reviewed its training procedures. Civil disturbance training 

prior to the 1967 riots, according to Lt. Col. Ronald R. 

Johnson, consisted primarily of mob dispersal and crowd 

control techniques with the emphasis on riot-control formations and the use of riot-control agents8 The Department of the Army and the National Guard, recognizing 

their riot control training deficiencies, expanded their 

training requirements to a 32-hour training program, with 

one hour devoted to riot-control policies and legal considerations? Also aware of these problems, the states started 

development of riot-control plans under directives of the 

Department of the Army.’” 

After the Kent State incident of 1970, a National 

Guard Bureau study group reviewed the civil disturbance 

plans of the states, particularly the provisions limiting and 

authorizing the use of deadly force. The study group found 

that state guidelines were generally compatible with the 

Department of the Army’s plan but did not eliminate opportunities for misuse of deadly force. For example, provisions in many state plans insisted that, “Rifles will be carried with a round in the chamber in the safe position.”” 

Today, National Guard and Air National Guard regulations specifically cover deployment of Army and Air National Guard unit personnel and the equipment of the several states in support of civil authorities.’* Unit commanders 

assigned a civil disturbance mission must ensure that all 

personnel receive at least 16 hours of instructions in initial 

individual civil disturbance 0perati0ns.l~ Units assigned to 

undertake “on-the-street” civil disturbance missions are 

required to participate in annual refresher and junior 

leadership training. l4 

Perhaps most important are clear regulations governing the degree of force that may be used. Civil disturbance 

training programs now emphasize minimum force, liabilities for the use of excessive force, “degrees of force options including the use of deadly force, [and] specific requirements for . . . lock plates installed to prevent 

automatic firing; apprehension and arrest; precommitment briefing; and psychological orientation. . : .15 

All of these provisions are designed to protect National Guard personnel and the civilian population in apotentially tense and dangerous situation. By the same token, there is little doubt that these regulatory restrictions 

can and will be used in proceedings against Guard members accused of a violation.’6 They have the effect of limiting 

the immunity or justification given by statute in cases involving injuries of bystanders after the riot-control warning has 

been given and when used in the arrest of felons. 

As the 1992 incident in Los Angeles demonstrated, 

the National Guard and civil authorities face different 

conditions than in the 1960s and 1970s. Although minimum force is preferred to control civil disorders, some of the 

participants in violent urban confrontations use automatic 

and other highly sophisticated weapons. Store owners in 

Los Angeles, for example, were seen firing on crowds below. Hundreds of fire fighters were vulnerable to gun fire, 

and police could not protect them.” 

The paradox of minimum versus deadly force is that 

looters and snipers involved in some urban areas are not 

constrained by governmental regulation, the notion of 

minimum force, or the police. Use of deadly force, therefore, will remain a necessary option for Guard members 

when their physical safety may be in jeopardy. 

Use of the National Guard 

in Drug Interdiction and Anti-Drug Activities 

The National Guard’s domestic role has expanded to 

assisting in the fight against drugs. Hawaii was the first 

state to utilize the Guard in this battle in 1977, when Governor George R. Ariyoshi orchestrated “Operation Green 

Harvest,” a program that combined local and state agency 

efforts to eradicate domestically grown marijuana.18 

Since that time, the National Guard‘s role in drug interdiction has developed gradually. In calendar year 1983, 

four states reported Guard drug interdiction missions. By 

1984, the number jumped to 14.19 Thirty-two states reported operational support to local and state law enforcement agencies in 1988.20 Thble 7-1 shows National Guard 

support to law enforcement agencies in drug interdiction 

activities during fiscal year 1991. 

“TO ensure the availability of military support to law 

enforcement agencies nationwide,” the Congress as- signed to DOD the mission of drug interdiction.*’ Aprovision of the 1989 National Defense Authorization Act further 

expanded this role as it approved funding of governors’ 

plans to use the National Guard in support of drug enforcement activities while in state status.” By federal law, 

the Department of Defense is authorized to provide fund- ing for personnel expenses, procurement of services, and 

leasing of equipment to support interdiction and eradica- tion operations. Examples of the types of support given include ground-based radar, communication equipment, 

aircraft, aerial search lights, and aerial imagery.23 

As an instrumentality of a state, the National Guard is 

not subject to Posse Comitatus Act restrictions except when 

called into active federal service. In addition, the Congress 

36 Advisory Commission on Intergovernmental Relations 
Table 7-7 

Results of National Guard Drug Support Operations 

Fiscal Year 1991 

Confiscations 

Cash 

Marijuana Plants Eradicated 

Processed Marijuana 

Cocaine 

Heroin 

Opium 

Vehicles 

Weapons 

Arrests Resulting 

M~,~~,ooo 

20,798,000 

116,864 Ibs. 

63,890 Ibs. 

1,610 Ibs. 

921 Ibs. 

2,083 

1,636 

6,152 

Source: U.S. Department of Defense, National Guard Bureau, 

Annual Review of tite Chief; National Guard Bureau, Fis- cal Year 1991 (Washington, DC, 1992), p. 112 

enacted exceptions to the act in 1982 and 1988 to recognize 

an “enhanced drug interdiction and law enforcement role 

for the National As a result, it appears that the 

National Guard, in addition to its primary responsibility of 

military readiness, will be providing support to law enforcement agencies well into the 21st century. Nevertheless, Guard personnel in state status, when assisting civilian law enforcement agencies, are prohibited by policy, 

although not by statute, from direct enforcement activities, such as arrest, search, and seizure.25 

To receive funding for counterdrug missions, a governor must submit a plan to the office of the secretary of defense (OSD) outlining missions to be conducted by the 

Guard, with the advice of state and local law enforcement 

agencies. The state must request the appropriate resources to conduct these missions, which are predominately interdiction, eradication, and urban drug enforcement operations.26 

The office allocates funds for what it considers 

high-priority missions that are consistent with the president’s national drug control strategy and with advice from 

federal law enforcement agencies. During fiscal years 

1989, 1990, and 1991, the federal government channeled 

$35.5 million, $67.7 million, and $111.9 million, respectively, to the states through this pr~gram.~’ 

During fiscal year 1989,53 states and territories, and 

the District of Columbia utilized a total of 107,348personnel-days in 1,811 separate drug interdiction support operations. It was not uncommon to have 2,000volunteer Guard 

members on duty on a given day. Guard personnel duties 

included inspection of commercial cargo at land border 

entry points, seaports, and international airports, and aerial and ground reconnaissance/surveillance.2s Activities 

made possible by the increased federal funding included 

transportation of law enforcement personnel, special 

training programs for law enforcement officers and Guard 

members, and numerous radar and imagery missions.29 

OSD and National Guard Bureau officials acknowledge that they lack adequate information on how to quantify 

the expansion of their counterdrug capabilities. In the future, they will require states to assign priorities among 

proposed missions. States with the most pressing interdiction needs will receive the highest 

Operation Autumn Harvest 

Operation Autumn Harvest is an example of how federal resources were used by the National Guard to support 

civilian law enforcement agencies. In September 1987, 

Guard units from Arizona, Missouri, Utah, and Wisconsin 

and officials of the U.S. Customs Service conducted a 

30-day, nearly around-the-clock, operation designed to 

detect and apprehend smugglers bringing drugs across the 

Arizona-Mexico border in aircraft. This operation was 

funded by the federal government and was conducted as a 

National Guard training exercise. Expenditures totaled 

approximately $960,000.31 

According to the General Accounting Office, “Operation Autumn Harvest did not meet its primary objective,” 

which was to detect and apprehend drug smugglers working 

the Arizona-Mexico border, although it did “provide valuable wartime readiness training, according to the National 

Guard.”32 GAO investigators found that “premature newspaper publicity, Limited coordination, inadequate radar capa- bility, and the absence of full-time Customs interceptor aircraft in close proximity to the radar sites limited the 

operation’s potential for interdicting drug smuggle~s.”~~ 

Perhaps the most significant lesson learned from the operation was that coordination between the National Guard 

and the US. Customs Service was inadequate. Moreover, 

the Customs Service was not sufficiently involved in the 

planning.34 GAO has suggested, however, that the impact of 

the Guard’s counterdrug activities cannot be measured in 

traditional terms of arrests and seizures because the Guard 

supports law enforcement agencies and does not independently plan, control, or execute operati~n~.~~ 

National Guard officials identified several important 

lessons learned from this operation. First, the operation 

provided valuable wartime readiness training and promoted a sense of purpose among Guard personnel. 

Second, National Guard and Customs officials agreed 

that the use of ground-based radar proved to be inadequate and ineffective. The Guard’s radar units identified 

93 suspect targets meeting Customs’ drug smuggling profile. Customs and/or Guard aircraft attempted to identrfy 

visually and intercept 33 of the 93 targets. Six targets were 

intercepted, but none were carrymg drugs.36 

Cost Concerns 

At a roundtable discussion on the use of the military 

in controlling illegal drugs in 1983, Lawrence Korb, then 

assistant defense secretary for manpower and logistics, acknowledged that 

the cost of military assistance to civilian law enforcement agencies is an issue of great concern to 

the states. . . . [A] lot of states have absorbed 

much of the cost in their own domestic agencies. . . . [Mlost of the assistance the military has provided 

to date has been on a non-reimbursable basis, 

which is permissible where the assistance is provided in the course of training and routine opera- tionsand no extraordinary cost is incurred. . . . [I]f 

Advisory Commission on Intergovernmental Relations 37 
the military assistance has no benefit to the military unit . . . the Department of Defense seeks reimbursement. . . .37 

Cooperative agreements may be the solution to the financing question. A cooperative agreement could set 

down the expectations between the National Guard and 

state and local police officials and explain how they will 

work together. Specific elements of the agreement would 

become the instrument to measure the accomplishments. 

State Defense Forces 

and the National Guard 

Federal law allows states to organize and maintain a 

state defense force in addition to the state’s National 

These forces, which exist in 24 states, are paramilitary, volunteer civilian militia (called militia, state 

Guard, Guard-reserve, or defense forces) that serve as a 

backup force in the event the National Guard is mobilized 

by the president. These forces usually consist of retired 

and former active service members and include approximately 10,OOO volunteers. The units participate in weekend and monthly drills, but receive little or no compensation. None of these state defense forces has federal status, 

although the National Guard Bureau assists the states in 

coordinating their activities. 

According to federal law, the defense force is under the 

control of the governor and may not be “called, ordered, or 

drafted into the United States armed forces.”39 Defense 

force members may not be in the armed forces reserve. 

Some state defense force units, such as Alaska’s, were 

formed at statehood. Others were authorized by state constitutions. New Mexico traces its force to 1606, when the 

Spanish explored the Rio Grand Valley, and to an organization known as “Los Vecinos” (the neighbors). Mississippi’s state defense force operated under an attorney general’s opinion until it was put into law in 1989.@ 

Participation in state defense forces is not always voluntary. During armed conflict in California, for example, 

the governor may draft any unmarried male resident between the ages of 18 and 45 who is not subject to any other 

armed senice.4l 

The size, duties, and capabilities of units vary widely. 

For instance, Texas has a 1,300-member state Guard, and 

units in Tennessee and Georgia number approximately 

1,000. In 1989, the Virginia Defense Force was involved in 

crowd control at 17 events around the state. Virginia’s unit 

also has conducted search-and-rescue missions and has 

helped a small community develop a plan to handle toxic 

chemical spills.42 

The rationale for state defense forces rests with the 

National Guard’s expanded role in the national defense 

structure. One observer notes that most states seem to believe and act as if “ ‘their’ Guard will always be available 

for the traditional disaster relief and constabulary mission~,”~~ but he points out that in the event of National 

Guard mobilization, “many states may find themselves 

lacking in trained cadres to replace missing Guard units.”44 

The recent Persian Gulf operation call-up of tens of 

thousands of National Guard personnel to active duty 

gave some states a new, but short-lived, opportunity to replace these troops with volunteer state defense forces. 

“We’re sort of a has-been force until we are nekded,” reported Tom Anderson, president of the National Association of State Defense For~es.4~ 

Problems with State Defense Forces 

Analyzing the experiences of states with defense 

forces, several problem areas are apparent. First, trying to 

duplicate the role played by the state National Guard as 

both a constabulary and a potential combat force is likely 

to be a waste of effort and resources. Recognizing the conflict between these dual roles, many states have given 

their state defense forces the mission of internal security/ 

military police, which can be adapted to meet state needs. 

Other states regard the state defense force as a full replacement for the National Guard. 

Second, problems have arisen with membership and 

other personnel. Some observers have claimed that many 

of the volunteers are former servicemen, nostalgic for a 

type of soldiering inappropriate to their constabulary mission, and that no research has been done on the qualifica- tions of state defense force v01untee1-s.~~ 

Some state defense forces have been reported to attract 

neo-Nazis, survivalists, former mercenaries, and violent 

felons.47 At least four states have taken action regarding 

their state Guard units. For example, in 1987, Utah Governor Norman Bangerter removed all but 31 of almost 400 

state Guard officers after an investigation confirmed that 

members of the Aryan Nation had infiltrated the force.48 

Virginia terminated several hundred officers in response 

to an investigation by the state legislature that followed 

reports of a brigade saving money to buy a tank and of oth- er units practicing drug raids. In 1986, the Texas House of 

Representatives voted to terminate appropriations to the 

state Guard because of its activities and misappropriation 

of funds, but 40 percent of the funds were restored in a 

compromise with the state Senate. Some California legislators have opposed continued funding for the State Military Reserve (one bill was introduced to abolish the force) 

and are insisting on some accountability. 

Third, there has been poor local coordination because 

state forces are independent of state police, disaster relief 

agencies, and the civil defense system.49 

The National Guard Bureau, according to some critics, should oppose federal support for such organizations 

when they fail to conform to a minimum standard of mission development and training. 

Proposals for Expanded 

State Defense Forces 

Despite the difficulties in some states, early in President 

Ronald Reagan’s first administration, the Department of 

Defense issued model bills authorizing the creation and 

funding of volunteer militia organizations. These groups 

would be prepared, on request of the governor, to “assist 

civil authorities in the preservation of law and order. . . suppress subversive activities . . . protect critical industrial 

institutions, and assume control of state armories so that 

National Guard personnel would be freed for omb bat."^' 

Members of Congress also have expressed support for 

these state defense forces. As of May 1992, three bills had 

38 Advisory Commission on Intergovernmental Relations 
been introduced on this subject.51 The bills generally seek 

to allow arms and equipment and training assistance to be 

provided by the federal government to state defense 

forces. Supporters of such legislation argue that federal 

intervention is justified, for example, on the basis that it is 

“in the national interest . . . (1) to maintain public safety 

and order, (2) to protect essential resources and facilities, (3) 

and to perform essential sentices when National Guard 

forces are federalized or otherwise not available or adequate to the 

Intergovernmental Issues 

If the Department of Defense becomes involved in either training or logistical support to state defense forces, 

some advance thought needs to be given to a number of fed- eral-state legal questions. For instance, individuals and cor- porations in some states donate funds to the state defense 

force.53 In other states, the forces receive little or no funding 

from the ~tate.5~ These relationships suggest that the National Guard Bureau should consider establishing guidelines 

governing state acceptance of gratuities if the state defense 

force wants to receive federal recognition and support. 

Several intergovernmental issues, such as professional standards in recruitment, grade classification, and training and development, have not been res0lved.5~ These issues are important because they suggest that the current 

status of many state defense forces is inappropriate for 

their potential mission as constabulary and combat force. 

An ambiguous relationship exists among the Depart- ment of Defense, the National Guard, and state defense 

forces in several states. These forces lack the oversight of 

a chain of command that governs both active duty military 

forces and the National Guard. 

Compliance 

with Environmental Protection laws 

Like most institutions in the United States, and par- ticularly certain federal agencies, the National Guard has 

encountered public criticism for its treatment of the environment. The potential for environmental problems is 

enormous because the National Guard maintains more 

than 25,000 buildings at some 3,200 state and federal facilities.56 Many of these sites have leaking underground storage tanks, among other problem^.^^ In February 1990, Otis 

Air National Guard Baselcamp Edwards was added to 

the Environmental Protection Agency’s Superfund toxic 

waste site cleanup list.58 

Lt. Gen. John B. Conaway, chief of the National 

Guard Bureau, may be correct when he says, “There was, 

and remains today a pervading attitude throughout our 

military that the importance of the mission somehow outweighs the consequences of our action-that the end justifies the means.”59 Conaway said that total environmental 

compliance will be among the Guard’s top goals in the 

1990s and that the National Guard’s performance is to be 

the standard by which all other agencies within the Department of Defense are judged. To meet these performance standards, Conaway proposed the following: 

1) Creating separate budget line-items for the Na- tional Guard environmental programs; 

2) Building an Army National Guard headquarters 

staff within the Army Directorate to provide federal environmental compliance management for 

federal facilities and for those USARNG facilities receiving federal supp~rt;~ 

Upgrading and, where necessary, replacing the 

Guard’s underground storage tanks at Army and 

Air Guard federal and federally supported state 

institutions; 

A centralized auditing program as the key to 

identifying past, present, and long-term environmental threats that may result from the Guard’s 

day-to-day operations; 

Developing a central environmental contracting 

office, operating out of the National Guard Bureau, to help develop contracts for hazardous 

waste clean-up under the Installation Restoration Program and other environmental requirements; and 

Instituting and following a clearly defined, uniform system for administering the National Environmental Policy 

The Army National Guard established an Environmental Resource Management Office in July 1990 to oversee 17 different program areas, such as noise abatement, 

air quality, and cultural resources management. The staff 

also provides assistance to all National Guards:* Funding 

for environmental management programs grew from $8.1 

million in FY 1989 to $30.373 million in FY 1991. 

U.S. Army regulations “require major commands to 

perform comprehensive environmental assessments at all 

installations on a four-year According to the National Guard Bureau, “all federal or federally supported 

National Guard installations must conduct internal compliance assessments every two years.”- 

Attention is being paid to the importance, not only of 

environmental remediation but also of communicating 

with the public on these matters. The National Guard Bureau published “Public Affairs Guidance on National 

Guard Bureau Environmental Programs” in October 

1990, in which it is pointed out that it is the policy of the 

bureau to keep the public fully informed of past and proposed actions that have the potential of adversely affecting the envir~nrnent.~~ 

Equal Opportunity 

in the National Guard 

Legally and technically, membership in the National 

Guard is open to eligible Americans of every race, color 

and creed. Nevertheless, it has only been during recent 

years that the number of minority group and women members in the Guard has increased significantly. 

According to the National Guard Almanac, the transition began with the establishment of the National Guard 

Bureau’s Office of Equal Opportunity and Civil Rights in 

1966 in accordance with Title VI of the Civil Rights Act 

(Nondiscrimination in Federally Assisted Programs). By 

Advisory Commission on Intergovernmental Relations 39 
Table 7-2 

Minority Participation in the National Guard 

(September 30, 1991) 

Service Number Percent Number Percent Number Percent Number Percent 

White Black Hispanic Other‘ 

Air Force 

Officers 

Enlisted 

Subtotal 

hY 

Officers 

Enlisted 

Subtotal 

TOTAL 

13,345 92.4% 496 3.4% 324 2.2% 275 2.0% 

91,231 84.2 8,812 8.1 4,627 4.3 3,627 3.4 

104,576 85.2 9,308 7.6 4,95 1 4.0 3,902 3.2 

45,779 88.3 3,136 6.0 1,73 1 3.3 1,218 2.4 

311,664 73.9 66,550 15.8 25,846 6.1 10,774 4.2 

357,443 75.5 69,686 14.7 27,577 5.8 18,992 4.0 

462,019 78,994 32,528 22,894 

American Indians, Alaskan Natives, Asians, Pacific Islanders, and others. 

Source: National Guard Almanac, 1992, p. 92. 

1968, the secretary of defense had approved plans to increase the number of blacks in the Army and Air National 

Guards, and the Office of Equal Opportunity began collecting data on minority group participation. 

The Civilian Acquired Skills Program to recruit minorities enabled individuals without prior service to join the 

Guard and receive promotions to E-4 and E-5 rank after 

completing initial active duty training. In 1974, the National 

Guard Bureau funded personnel positions for race relations/equal opportunity for each Army Guard. 

Although minority membership among enlisted personnel was good during the l97Os, the number of African-American officers and warrant officers failed to increase proportionately. As a result, the Guard launched a minority officer 

recruitment program in the late lWh, which by 1981, won 

praises from the NAACP. Through most of the 19&, however, progress leveled off. Minority officers make up 11.48 

percent of total Army Guard officers and 7.90 percent of total Air Guard officers. The enlisted strength figures of minorities are higheP (see %ble 7-2). 

The participation of women in the military, and in the 

National Guard in particular, has increased dramatically 

in recent years. The first female Guard member was a 

nurse, commissioned by the Air National Guard in 1956.67 

Historically, women were excluded from many military 

units involved in active combat or serving on ships and aircraft on combat missions. Until 1967, women could not be 

officers in the Guard.68 At the end of FY 1991, however, 

more than 45,000 women served in the National Guard 

(see Table 7-3) 

The chief of the National Guard Bureau has issued a 

goal charter committing the Guard to leadership in equal 

opportunity and fair, equitable, and nondiscriminatory 

treatment of all members and employees. Commenting to 

the Air Force Times, Chief John Conaway said there were 

no specific numerical goals in recruitment, but that he 

wanted the Air National Guard to be as totally representative as possible of its communities.@ 

Equal opportunity remains an important issue for the 

Guard, not only because of the need for equity but also because units may be called to quell disturbances in predominantly minority areas. When the Guard has a well-trained 

leadership reflective of the diversity of state citizens, its 

state missions can be accomplished with more ease and 

professionalism . The challenge for the rest of the decade is to develop 

programs and processes that ensure continuation of the 

progress shown thus far of minorities and women into senior leadership positions within the Guard, during an era 

of downsizing. 

The National Governors’ Association has gone on 

record in favor of equal opportunity in the Guard. NGA 

policy states: 

Governors, as commanders-in-chief of the 

National Guard, fully support equal opportunity 

in all state programs and institutions under the 

Guard regardless of race, sex, or religion; endorse the National Guard Bureau’s goal; and 

pledge full support in achieving equal opportunity in all aspects of the Guard.70 

Table 7-3 

Female Participation in the National Guard 

September 30,1991 

status Air Force 

Commissioned Officers 1,490 

Warrant Officers 0 

Enlisted Personnel 14,160 

Total 15,650 

3,575 

264 

28,034 

3 1,823 

Source: National Guard Almanac, 1992, p. 93. 

40 Advisory Commission on Intergovernmental Relations 
Unit Integrity 

Although many of the intergovernmental issues discussed in this report are of relatively recent origin, unit integrity has been debated by federal and state officials from 

the earliest days of the militia Guard. 

Many Guard officials and members believe that combat 

efficiency, capability, and group spirit of National Guard 

members are maximized when the unit in which they have 

trained is called up intact.” Practices followed by the active 

military, however, have not always promoted unit integrity. 

The 1916 National Defense Act clarified the relative 

federalktate relationships of the National Guard by directing that when the Congress authorized use of the 

Guard, the president could draft members of the National 

Guard into the federal service. When such action took 

place, neither individual Guard members nor state units 

retained their status as state militia.72 

That approach controlled for over a decade, although 

not without controversy. From the beginnings of the 

United States involvement in War World I, the regular 

militaly ignored previous state Guard identification and 

cohesion. Guard personnel were drafted as part of the 

Army and “regiments with proud histories and tradition 

were broken up.”73 Within the general army staff, “there 

was still strong feeling that the sooner the regional background and historic heritage of citizen-soldier units were 

obscured or obliterated, the better it would be for the regular Army.”74 

For this reason, and to clarify Army organization 

structure, Guard regiments were renumbered without 

reference to the home state, so that, “the resulting Divisions and Brigades should bear no designations indicative 

of State or region. There would be no ‘Wisconsin Iron Brigade,’ no ‘Hood’s Texans,’ nor ‘Roosevelt’s Rough Riders,’ as in the Civil and Spanish Wars.”75 

Following the experience of World War I, officials 

recognized a need to permit state Guard units to serve as 

federalized Guard units rather than be drafted essentially 

as individuals. The Congress moved to correct the situation with its 1933 amendments to the National Defense 

That law created the National Guard of the United 

States, whose units were identical to that of the various 

state National Guards. The legislation explicitly provided 

that, once called up for federal active duty, Guard units 

were to be kept as discrete entities to the maximum feasible extent.77 

Maj. Gen. E. Gordon Stump, Michigan’s adjutant 

general, recently spoke to the importance of unit integrity: 

An essential element of morale in a military 

unit is the relative cohesion of its members. 

Nothing could be more detrimental to National 

Guard units when they are called to active duty 

than to fragment them, or otherwise destroy their 

unit integrity. Any use of National Guard personnel as fillers is indicative of a sort of second class 

status for National Guard units and is detrimental to the Total Force 

The Defense Department’s interpretation of “unit in- tegrity,” however, leaves the department considerable 

leeway. Federal law states that the department will maintain units “so far as practicable” during the initial mobilization.w Furthermore, DOD regulations clearly provide 

that National Guard units are to be activated as such. 

The 1990 report of the Reserve Force Policy Board observed that Desert Shield had surfaced several unit call-up 

policy issues. The interagency board felt the need to observe that, to the extent practicable, reserve component 

units should be called up 

as complete units, to maintain their unit integrity 

and readiness. There may be occasions when an 

entire unit may not be needed. However, the 

Board is concerned that a recent trend toward 

calling unit cells, rather than units, is a departure 

from an understanding that Reserve component 

units would be called to serve only as units.s0 

In response to the manner in which National Guard 

units were mobilized with respect to unit and leadership 

integrity during Desert ShieldIDesert Storm, the National 

Guard Association, at its September 1991 general conference, passed a resolution urging that the Guard be activated and commanded as units. 

Conclusion 

The constitutional, statutory, historical, and militaly 

responsibilities of the two American defense establishments are linked, but remain partly independent as well. 

As a result, although the governors command the Guard 

in peacetime, they must comply with various federal regulations and instructions from the National Guard Bureau, 

the Army, and the Air Force, when exercising powers over 

Guard members. 

With military policy expected to become even more 

complicated in the coming years, due to force reductions, 

budgetary constraints, shifting national security concerns, 

and expanding roles in the drug war and environmental 

protection, the relationship between federal policymakers 

and the governors needs close examination and coordination. Cooperation and consultation will be essential if 

America is to maximize its defense forces and meet domestic needs during the coming years. 

Notes 

“State Line: March 1989, Prince William Sound, Alaska,” USA 

Today, September 14, 1990. 

PL. 93-288, as amended by F?L. 100-707. See also Sandra K. 

Schneider, “FEMA, Federalism, Hugo, and ‘Frisco,’ ” Publius: 

The Journal of Federalism 20 (Summer 1990): 97-115. 

Ronald R. Johnson, “The Rock and the Hard Place: Use of 

Force by ARNG in Civil Disturbance Operations” (unpub- lished, 1974), p. 2. 

The Role of the National Guard in an Age of Unrest,” 77ieNarional Giiardsmun, September 1970, p. 10. From 1945 to 1964, 

more than 99,000 Guardsmen were involved in control of 88 

separate civil disturbances, with more than one-third in the fi- nal five years of that period. Between 1965 and 1969, some 

291,396 Guardsmen participated in 242 control operations, 

with the majority in the final years. 

Advisory Commission on Intergovernmental Relations 41 
’ Ibid. See also Ed Grant and Mike Hill, Z Was There: What Really 

Wenton at Kent State(Lima, Ohio: C.S.S. Publishing Company, 

1971), pp. 128-132; and “No More Kent States,” Die Philadelphia Inquirer, November 12, 1970. 

U.S. Department of the Army, “Civil Disturbance and Riot 

Control,” August 1967; and “A New Riot Control Memo is 

Given to the Guard,” New York Times, August 6, 1967. ’ “It’s Time to Change the Guard,” Time, October 20,1967, pp. 

24-23; and William A. McWhite, “The National GuardAwake or Asleep?” Life, October 1967, pp. 85-98. 

* Johnson, “The Rock and The Hard Place,” pp. 3-7. 

U.S. Department of Defense, Department of the Army, “Civil 

Disturbance and Riot Control” 19-6 (T) (August 1967); and “A 

New Riot Control Memo is Given to Guard,” New York Times, 

August 6, 1967. 

l0U.S. Department of Defense, Department of the Army, 

‘Army Subject Schedule, 19-6” (February 21, 1968); and The 

National Guarhman, September 1970, p. 10. 

Ibid. 

l2 National Guard Regulation 500-1 and Air National Guard 

Regulation 55-04, “Military Support to Civil Authorities.” 

l3 U.S. Department of Defense, “Use of Military Resources dur- ing Peacetime Civil Emergencies within the United States, Its 

Temtories, and Possessions,” Directive 3025.1, May 1980, pp. 

14U.S. Department of Defense, Department of the Army, 

“Army Regulations 350-7” (February 8, 1973), as supplemented by Appendix XV Annex C, FORSCOM Supply 1 to 

AR350-1; see also US. Army Military Police School, Law Division, “Policies and Legal Consideration of Leadership Train- ing Program,” Lesson Plan (Washington, DC, February 1971). 

l5 US. Department of Defense, Department of the Army, “Reg- ulation 190-28”; and Federal Manual 19-15, Chapter 7. 

l6 Johnson, “The Rock and the Hard Place,” p. 8. 

Carlos Sanchez, “Looting’s Legacy: More Guns for Gangs,” 

Wmhington Post, May 7, 1992. 

l8 “Guard Helps Wage the War on Drugs,” USA Today, September 14-16, 1990; and U.S. General Accounting Office (GAO), 

Drug Interdiction: Operation Autumn Harvest: A National 

Guard-Customs Anti-Smuggling Effort (Washington, DC, 

1988), p. 10, and Drug Control: National Guard Counter-Dnig 

Support to Law Enforcement Agencies (Washington, DC, 1991), 

l9 Lt. Gen. Herbert R. Temple, Jr. (then chief of the National 

Guard Bureau), in a speech to the Border Trade Alliance, 

Washington, DC, April 4, 1989. 

1-9. 

p. 8. 

2o GAO, Drug Control, p. 8. ’‘ Ibid. See also National Defense Authorization Act, PL. 100-456. 

22 PL 101-189, division A, Title XII, Section 1207(a)(l), now 

found at 32 U.S.C. Sec. 112. 

23 GAO, Drug Control, pp. 16-17. 

24 Ibid., pp. 2-4. 

25 U.S. Department of Defense, “DoD Cooperation with Civilian Law Enforcement Officials,” Directive 5525.5 (January 15, 

1986), pp. 4-1 to 4-3. 

26 32 U.S.C. Sec. 112@). See also U.S. Department of Defense, 

“Use of Military Resources during Peacetime Civil Emergencies within the United States, Its Temtories, and Possessions,’’ 

Directive 3025.1. 

2’ GAO, Drug Control, p. 2-3. 

28 John B. Conaway, Statement before the Senate Subcommittee 

29 GAO, Drug Control, p. 3. 

30 Ibid., pp. 4 and 9. 

on Military Construction, p. 3. 

31 GAO, Dnig Interdiction, pp. 4-5. 

32 Ibid., p. 14. 

33 Ibid., p. 5. 

34 Ibid., p. 26. 

35 GAO, Drug Control, p. 4. 

36 GAO, Drug Interdiction, pp. 6,24, and 25. 

37 National Governors’ Association, ‘R Roundtable Discussion 

on the Use of the Military in the Control of Illegal Drugs,’’ 

Washington, DC, 1984, p. 31. 

38 32U.S.C. Sec. 109(c). In October 1917, the judge advocategenera1 ruled that states could maintain forces “resembling” the 

Army but with “much more restricted” functions. The National Defense Act of 1920 was amended in 1940 to loosen the prohibition on state forces in peacetime and in 1947 to prohibit 

state military forces except the Guard. See George J. Stein, 

“State Defense Forces: The Missing Link in National Security: Military Review 64 (September 1984): 4. 

39 “State Volunteers Replace Activated Guardsmen” Wahington 

Post, December 24,1990; and ”Few States Maintain AllVolunteer Militia” Army Times, November 20, 1974. 

“State Volunteers Replace Activated Guardsmen,” Wahington Post. 

41 Edward Connolly, ‘A Quiet Plan for Volunteer Militia to Keep 

Peace,” San Jose Mercury News, May 2, 1989. 

42 State Volunteers Replace Activated Guardsmen,” LVahington 

Post. 

43 Stein, “State Defense Forces,” p. 2. 

44 Ibid. 

45 “State Volunteers Replace Activated Guardsmen,” LVmhing46 Stein, “State Defense Forces,” pp. 12-13. 

47 Edward Connolly, ‘A Highly Irregular Force: Scandals of the 

48 Ibid. 

49 Stein, “State Defense Forces,” p. 5. 

50 Connolly, ‘A Highly Irregular Force,” p. 338. ’’ H.R. 2001 (Jones), H.R. 2081 (Spence), and S. 958 (Thurmond). See Congressional Record, April 25, 1991, pp. S. 

5216-S5218. 

ton Post. 

State Militias,” The Nation, March 18, 1991, p. 338. 

52 H.R. 2001, Section 1. 

53 Stein, “State Defense Forces,” p. 5. 

54 U.S. Department of Defense, Office of the Secretary of Defense, Reserve Component Programs, Fiscal Ear 1990: The 

Annual Report of the Reserve Forces Policy Board (Washington, 

DC, 1991), p. 23. ’’ Ibid., p. 16. 

56 Ibid. 

57 John B. Conaway, Speech to the National Guard Commander’s Environmental Seminar, April 19, 1990, p. 23. 

To qualify for aid through the Superfund program, a site must 

be near population centers and pose a threat to groundwater, 

surface water, or outdoor air. See Jeff McLaughlin, “Cancer 

Incidence Up on Part of Cape: Statistics Show Elevated Rates 

of Disease Near Hazardous Waste Site at Otis AFB,” Boston 

Globe, February 4, 1990. 

A staff increase from four to 156 has been programmed for fis- cal years 1992-1993. Ibid. 

59 Conaway, Speech to Environmental Seminar, p. 3. 

61 Ibid., p. 33 

62 U.S. Department of Defense, National Guard Bureau,Anniral 

Report of the Chiex National Guard Bureau, Fiscal Ear 1991 

(Washington, DC, 1992), p. 39. 

Ibid. 

42 Advisory Commission on Intergovernmental Relations 
64 Ibid. 

65 U.S. Department of Defense, National Guard Bureau, Office 

of Public Affairs, “Public Affairs Guidance on National Guard 

Bureau of Environmental Programs,” October 1990, pp. 1-16. 

66 National Guard Almanac 1992, p. 91. 

67 Robert K. Wright, Jr., and Renee Hylton-Greene,A BriefHistory of the Militia and the National Guard (Washington, DC: 

National Guard Bureau, 1986), p. 51. 

See PL 90-130, Sec. 2(1), amending the prior prohibition. 

69 Pat Dalton, “More Women, Minorities Participate in ANG,” 

Air Force Times, April 21, 1988. 

70 National Governors’ Association. 

71 Conversely, communities may be decimated if the units con72 39 Stat. 166. 

73 Samuel J. Newland, “TheNational Guard: Whose Guard Anyway?” Pammeters 18 (June 1988): 45. 

74 Jim Dan Hill, The Minute Man in Peace and War A History of 

the National Guard (Harrisburg, Pennsylvania: The Stackpole 

Company, 1964), p. 265. 

taining their residents are wiped out in a single battle. 

75 Ibid. 

76 48 Stat. 153. 

” Many state and local Guard units were successful in maintaining that integrity. The old 69th New York Infantry,”The Fighting Irish,” was redesignated the 155th Infantry during World 

War I. Nevertheless, throughout World War 11, this outstanding military unit referred to themselves as the “69th”; canied 

their shamrocks, flags and colors; talked in a thick brogue; and 

let no one doubt that they were the “Fighting Irish.” Edmund 

G. Love, “The Case of the ‘Fighting Irish’: An Illustration of 

American Indifference to Regimental Traditions,” MiZifary Affairs XI (Spring 1947): 46-48. 

78 Memorandum from Adjutant General E. Gordon Stump to 

Bruce McDowell, Advisory Commission on Intergovemmental Relations, dated May 1, 1992. 

79 10 U.S.C. Sec. 3498. 

Office of the Secretary of Defense, Fiscal Ear1990: TheAnnual 

Report of the Reserve Forces Policy Board, p. 16. 

Advisory Commission on Intergovernmental Relations 43 
44 Advisory Commission on Intergovernmental Relations 
Appendixes 

Advisory Commission on Intergovernmental Relations 45 
Service 

Appendix Table 1 

Reserve and National Guard Programs 

Personnel Summary by Component- Fiscal Years 1990-1 993 

FY 1990 FY 1991 FY 1992 FY 1993 Percent Change 

(actual (actual) (estimated) (requested) FY 1990-1993 

National Guard 

Air Force 

hY 

Subtotal 

Reserve 

Air Force 

Marine Corps 

Subtotal 

hY 

Navy 

143,495 144,146 145,252 147,339 + 2.7 

466,479 486,758 439,023 392,431 -15.9 

609,974 630,904 584,275 539,770 -11.5 

95,317 101,006 97,028 98,703 + 3.6% 

3 16,49 1 335,815 297,730 268,469 -15.2 

50,427 49,100 45,427 43,250 - 14.2 

160,295 163,372 143,555 135,139 -15.7 

622,530 649,293 583,740 545,561 -12.4 

National Guard and Reserve-Total 1,232,504 1,280,197 1,168,015 1,085,331 -12.0% 

Source: U.S. Department of Defense, Reserve and Guard Programs Summq, FY 1992tFY 1993 President’s Budget (February 1991). 

Appendix Table 2 

Reserve and National Guard Programs 

Funding Summary by Component- Fiscal Years 1990-1 993 

(dollars in thousands) 

FY 1990 FY 1991 FY 1992 FY 1993 Percent Change 

Service (actual (actual) (estimated) (requested) FY 1990-1993 

National Guard 

Air 

hY 

Subtotal 

Reserve 

Air Force 

Marine Corps 

Special Operations 

Subtotal 

Amy 

Navy 

$4,506,162 $4,572,153 $3,881,827 $4,285,707 -4.9 % 

7,655,745 7,268,989 5,988,9 12 5,778,970 -24.5 

12,161,907 11,841,142 9,870,739 10,064,677 -17.2 

2,046,847 2,086,114 1,928,908 2,132,212 + 4.2 

4,020,686 3,838,269 3,583,616 3,486,876 -13.3 

707,055 78 1,4 12 576,360 551,562 -21.1 

3,189,089 3,896,142 2,889,251 2,762,716 -13.4 

0 0 76,912 90,041 + 90,041 

9,963,677 10,601,937 9,055,047 9,029,407 -9.4 

National Guard and Reserve-Total $22,125,584 $22,443,079 $18,925,786 $19,094,084 -13.7% 

Source: US. Department of Defense, Reserve and Guard Ptvgmms Summary, FY1992lFY 1993 President’s Budget (February 1992). 

46 Advisory Commission on Intergovernmental Relations 
~ ~ ~ ~~ 

Appendix Table 3 

Appropriations Summary -Army National Guard. Fiscal Years 1990-1 993 

(dollars in thousands) 

FY 1990 FY 1991 FY 1992 FY 1993 Percent Change 

Object of Expenditure (actual (actual) (estimated) (requested) FY 1990-1993 

National Guard Personnel 

Unit/Individual Training 

Other Traininghpport 

OperationsIMain tenance 

Mission Forces 

Depot Maintenance 

Other Support 

Military Personnel 

Procurement 

Aircraft 

WeaponsfTracked Vehicles 

Ammunition 

Other 

National GuardIReserve Equipment 

Research, Development 

Military Construction 

TOTAL 

$3,294,7 11 

1,760,479 

1,534,232 

1,864,037 

1,678,864 

54,616 

130,557 

18,517 

1,160,500 

136,900 

137,300 

481,500 

33 1,790 

0 

230,490 

$7,655,745 

$3,466,868 

1,815,287 

1,651,581 

2,024,867 

1,797,859 

50,086 

176,922 

19,230 

83,400 

344,500 

101,000 

103,700 

812,200 

0 

313,224 

$7,268,989 

$3,201,700 

1,711,215 

1,490,485 

2,080,700 

1,863,605 

50,824 

166,271 

20,970 

359,200 

13,800 

103,700 

159,400 

0 

0 

50,400 

$5,988,912 

$3,038,600 

1,622,244 

1,42416,356 

2,083,700 

1,850,014 

48,579 

185,107 

20,970 

309,400 

40,300 

39,500 

192,400 

0 

0 

54,100 

$5,778,970 

-7.8 % 

-7.8 

-7.6 

+ 11.7 

+ 10.1 

-11.1 

+ 41.7 

+ 13.2 

-73.4 

-70.6 

-71.3 

-60.1 

-100 

0 

-76.6 

-24.6% 

Source: U.S. Department of Defense, Reserve and Guard Ptvgmms Summary, FY 19921FY 1993 Pwsident’s Budget (February 1991). 

Object of Expenditure 

Appendix Table 4 

Appropriations Summary- Air National Guard, Fiscal Years 1990-1 993 

(dollars in thousands) 

FY 1990 FY 1991 FY 1992 FY 1993 Percent Change 

(actual (actual) (estimated) (requested) FY 1990-1993 

National Guard Personnel 

UniVIndividual Training 

Other TrainingISupport 

OperationsIMaintenance 

Mission Forces 

Depot Maintenance. 

Other Support 

Military Personnel 

Procurement 

Aircraft 

Other 

National CuardIReserve Equipment 

Research, Development 

Military Construction 

TOTAL 

$1,063,9 14 

540,515 

523,399 

2,020,393 

1,689,467 

325,373 

5,553 

22,446 

659,700 

247,200 

238,660 

17,982 

235,867 

$4,506,162 

$1,119,002 

558,330 

560,672 

2,272,036 

1,881,069 

385,876 

5,091 

24,055 

122,100 

209,400 

645,000 

0 

180,560 

$4,572,153 

$1,145,500 

576,886 

568,614 

2,287,800 

1,981,664 

300,386 

5,750 

25,727 

206,600 

84,400 

0 

0 

13 1,800 

$3,881,827 

$1,195,100 

603,087 

592,013 

2,700,900 

2,358,826 

336,056 

6,018 

26,907 

212,600 

109,600 

0 

0 

40,600 

$4,285,707 

+ 12.3% 

+ 11.5 

+ 13.1 

+ 33.6 

+ 39.6 

+ 3.3 

+ 8.4 

+ 19.9 

-67.8 

-55.7 

-100 

-100 

-82.8 

-4.9 70 

Source: U.S. Department of Defense, Reserve and Guard Pmgrants Summary, FY 19921FY 1993 President’s Budget (February 1991). 

Advisory Commission on Intergovernmental Relations 47 
Appendix Table 5 

National Guard Strength by State and Territory 

(November 30,1991) 

State or Armv Guard Air Guard 

Territory noops Units Troops Units Total Strength Total Units 

Alabama 

Alaska 

Arizona 

Arkansas 

California 

Colorado 

Connecticut 

Delaware 

District of Columbia 

Florida 

Georgia 

Guam 

Hawaii 

Idaho 

Illinois 

Indiana 

Iowa 

Kansas 

Kentucky 

Louisiana 

Maine 

Maryland 

Massachusetts 

Michigan 

Minnesota 

Mississippi 

Missouri 

Montana 

Nebraska 

Nevada 

New Hampshire 

New Jersey 

New Mexico 

New York 

North Carolina 

North Dakota 

Ohio 

Oklahoma 

Oregon 

Pennsylvania 

Puerto Rico 

Rhode Island 

South Carolina 

South Dakota 

Tennessee 

Texas 

Utah 

Vermont 

Virginia 

Virgin Islands 

Washington 

West Virginia 

Wisconsin 

Wyoming 

Totals 

20,991 

3,213 

5,281 

9,520 

20,997 

3,899 

5,448 

2,189 

2,107 

12,310 

11,108 

457 

3,558 

3,647 

11,633 

14,794 

7,857 

7,000 

7,441 

12,149 

3,020 

7,338 

10,330 

12,243 

10,843 

12,211 

9,657 

3,512 

4,476 

1,790 

2,249 

8,963 

4,180 

16,056 

12,203 

3,916 

13,692 

8,624 

7,838 

18,290 

9,460 

2,672 

13,874 

4,063 

14,922 

20,232 

6,053 

3,537 

9,469 

809 

6,928 

3,710 

8,939 

1,834 

443,532 

273 

156 

96 

138 

251 

73 

88 

23 

26 

16 1 

137 

8 

61 

62 

145 

15 1 

117 

139 

104 

139 

47 

123 

138 

143 

15 1 

192 

18 1 

59 

71 

40 

38 

18 1 

65 

289 

179 

65 

182 

145 

108 

220 

38 

94 

147 

81 

200 

118 

49 

118 

21 

120 

57 

14 1 

44 

6470 

277 

3,147 

1,584 

2,95 1 

2,257 

5,676 

1,576 

1,253 

945 

1,503 

1,610 

3,494 

159 

2,087 

1,357 

3,702 

2,535 

2,115 

2,s 10 

1,184 

1,672 

1,419 

1,941 

2,826 

2,968 

25 18 

2,911 

2,875 

1,104 

1,060 

1,105 

1,048 

2,848 

1,052 

6,101 

1,550 

1,19 

5,566 

2,466 

1,987 

4,612 

1,331 

1,490 

1,349 

992 

3,911 

3,856 

1,612 

1,033 

1,332 

33 

2,577 

2,121 

2,125 

958 

117,184 

32 

24 

28 

31 

64 

20 

13 

15 

15 

16 

36 

5 

26 

14 

40 

31 

24 

27 

16 

16 

15 

27 

34 

39 

30 

31 

34 

13 

13 

13 

13 

38 

13 

71 

19 

13 

66 

29 

20 

56 

17 

16 

14 

13 

46 

52 

18 

13 

14 

2 

29 

27 

26 

14 

1381 

24,138 

4,797 

8,232 

11,777 

26,673 

5,475 

6,701 

3,134 

3,610 

13,920 

14,602 

616 

5,645 

5,004 

15,335 

17,329 

9,972 

9,5 10 

8,625 

13,821 

4,439 

9,279 

13,156 

15,231 

13,361 

15,122 

12,532 

4,616 

5,536 

2,895 

3,297 

11,811 

5,232 

22,157 

13,753 

5,106 

19,258 

11,090 

9,825 

22,902 

10,79 1 

4,162 

15,223 

5,055 

18,833 

24,088 

7,665 

4,570 

10,801 

842 

9,505 

5,831 

11,064 

2,792 

560,736 

305 

180 

124 

169 

3 15 

93 

10 1 

38 

41 

177 

173 

13 

87 

76 

185 

182 

14 1 

166 

120 

155 

62 

150 

172 

182 

18 1 

223 

2 15 

72 

84 

53 

51 

2 19 

78 

360 

198 

78 

248 

174 

128 

276 

55 

110 

161 

94 

246 

329 

136 

62 

132 

23 

149 

84 

167 

58 

7,851 

Source: National Guard Almanac, 1992, p. 126. 

48 Advisory Commission on Intergovernmental Relations 
Appendix Table 6 

Statutory Authority for Mobilizing the National Guard into Federal Service 

Presidential Mobilization Authority Secretary of Defense Mobilization Authority 

Under 10 U.S.C. 331, the president is authorized to 

mobilize the militia (by call), if requested to do so by 

the governor or legislature of a state. The statute au- thorizes the mobilization only to suppress insurrec- tions.' 

There is no limitation on the number of troops that 

may be mobilized in this manner nor their length of 

service. Consent of the troops is not required, nor is 

the consent of the governor needed. 

Under 10 U.S.C. 332, the president is authorized to 

mobilize the militia (by call) and the armed forces (by 

order), if the president cannot enforce the laws 

through normal means. The statute authorizes the 

mobilization only to enforce federal law. 

As in 10 U.S.C. 331, there is no limitation on the num- ber of troops that may be mobilized in this manner nor 

their length of service. Consent of the troops is not required, nor is the consent of the governor needed. 

Under 10 U.S.C. 333, the president is authorized to 

mobilize the militia (by call) and the armed forces Coy 

order) in the event of the denial of equal protection of 

the laws due to domestic violence or conspiracy. The 

statute authorizes the mobilization to suppress insur- rection or domestic violence. 

Again, there is no limitation on the number of troops 

that may be mobilized in this manner nor their length 

of service. Consent of the troops is not required, nor is 

the consent of the governor needed. 

Under 10 U.S.C. 3500 and 8500, the president is authorized to mobilize the National Guard (by call) in 

the event of invasion, rebellion, or if the president 

cannot enforce the laws with regular forces. The statute authorizes the mobilization to repel invasions, 

suppress rebellions, or execute the laws. Under 10 

U.S.C. Sec. 8500, however, the order to mobilize must 

be issued through the governor. 

Again, there is no limitation on the number of troops 

that may be mobilized in this manner or on their 

length of service. Consent of the troops is not re- quired, nor is the consent of the governor needed. 

(1) Under 10 U.S.C. 672(a), the secretary of defense is au- thorized to mobilize all reserve components (by or- der) on a declaration of war or national emergency by 

Congress. The statute places no limitation on the pur- poses for which troops may be mobilized. 

There is no limitation on the number of troops that 

maybe mobilized in this manner although their length 

of service is limited to the duration of the war/emergency, plus six months. Consent of the troops is not 

required, nor is the consent of the governor needed. 

(2) Under 10 U.S.C. 672(b), the secretary of defense is 

authorized to mobilize all reserve components in ac- tive status (by order). The statute places no limitation 

on the purposes for which troops may be mobilized. 

There is no limitation on the number of troops that may 

be mobilized in this manner, although their length of 

service is hmited to 15 days. Consent of the troops is not 

required, but consent of the governor is needed.2 

(3) Under 10 U.S.C. 672(d), the secretary of defense is 

authorized to mobilize all reserves (by order). The 

statute places no limitation on the purposes for which 

troops may be mobilized. 

There is no limitation on the number of troops that 

may be mobilized in this manner or on their length of 

service. Consent of the troops and of the governor is 

required. 

(4) Under 10 U.S.C. 673(a), the secretary of defense is 

authorized to mobilize the ready reserve (by order) if 

the president declares a national emergency. The 

statute places no limitation on the purposes for which 

troops may be mobilized. 

Only one million troops that may be mobilized in this 

manner and their service is limited to 24 months. Consent of the troops and of the governor is not required. 

(5) Under 10 U.S.C. 673b, the secretary of defense is authorized to mobilize the selected reserve (by order) if 

the president determines it is necessary to augment 

active forces for operational missions. This statute 

may not be used in place of a call or for disaster relief. 

Only 200,000 troops may be mobilized in this manner 

and their service is limited to 90 days (one 90-day extension is allowed). Consent of the troops and of the 

governor is not required. 

Before employing troops, the president must issue a proclamation requiring the insurgents to disperse. 

Subject to the restrictions of the Montgomery Amendment. 

Source: National Guard Bureau, August 1990. 

Advisory Commission on Intergovernmental Relations 49 
Appendix Table 7 

Selected National Guard Call-ups, 1950-1 990 

1. Korea 

Authorized by Presidential Proclamation No. 2914 of December 

16, 1950, in which President Truman proclaimed a state of emer- gency. Reservists were called to active duty for a period of 24 

months under the provisions of this proclamation. 

Component Number 

Army National Guard 139,000 

Navy Reserves 274,563 

Marine Corps Reserves 98,229 

Air National Guard 46,413 

Air Force Reserve 135,874 

Total 938,379 

(July 1, 1950 to July 26, 1953) 

Army Reserves 244,300 

2. Little Rock, Arkansas 

Authorized by Executive Order No. 10730 of September 23,1957, 

signed by President Eisenhower. 

Component Number 

Arkansas Army and Air National Guard 

Released from active duty (11/10/57) 

(September 24, 1957 to May 29, 1958) 

9,873 

8,973 

Released from active duty (5/29/58) 900 

3. Berlin 

Authorized by Joint Resolution (Public Law 87-117) of August 1, 

1961. The resolution authorized the President to call zs0,OaO ready 

reservists to active duty for one year, as units or individuals. Membes were called between October 1-31,1961. Those who reported 

and served did so between October 1,1961 and August 31,1%2 

Component Called Served 

Army Reserve/ 

National Guard 119,622 113,254 

Navy Reserve 8,357 8,020 

Air Force Reserve/ 

National Guard 27,821 26,575 

Total 155,80 147,849 

(October 1, 1961 to August 31, 1 963) 

4. Oxford, Mississippi 

Authorized by Executive Order 11053, signed by President Kennedy on September 30,1962 

(September 30, 1962 to October 23, 1962) 

Component 

Mississippi 

Number 

10,927 

5. Cuban 

Authorized by Joint Resolution (Public Law 87-736) of October 3, 

1962. Authorized the President to call 150,000 ready reservists for 

12 months. 

Component Called Served 

Air Force Reserve 14,200 14,025 

Note: Members were called on October 17, 1962, and reported 

within nine hours. All were released by November 21, 1962. 

(October 27, 1962 to November 1, 1962) 

6. Tuscaloosa, Alabama 

Authorized by Executive Order 11111 of June 11,1963, signed by 

President Kennedy. 

Component Number 

Alabama Army/Air National Guard 16,463 

7. Integration of Public Schools, Alabama 

(September 10-1 4, 1963) 

Authorized by Executive Order 11118 of September 10, 1963, 

signed by President Kennedy. 

Component Number 

Alabama Army/Air National Guard All 

Entire force called to active duty but held in their armories on 

standby for the 4-day period. 

8. Selma, Alabama 

Authorized by Executive Order 11207 of March 20,1965, signed 

by Resident Johnson. 

Component Number 

Alabama Army/Air National Guard 4,000 

(June 1 1,1963, to July 1 1, 1963) 

(March 20-29, 1965) 

9. Korea and Vietnam 

Authorized by Executive Order 11392 of January 25, 1968, and 

Executive Order 11406 ofApril 10,1968, both signed by President 

Johnson. 

Component Number 

Army National Guard 12,234 

Air National Guard 10,673 

Other Reserves 12,373 

Total 35,280 

(January 25,1968, to December 15,1969) 

10. Postal Strike 

Authorized by Executive Order 11519 of March 23, 1970, signed 

by President Nixon. 

Component Number 

Army National Guard 10,845 

Air National Guard 1,876 

Other Reserves 13,366 

Total 26,087 

(March 24, 1970, to April 1970) 

11. Operation Desert Shield/Desert Storm 

Authorized by Executive Order 12727 of August 22, 1990, signed 

by President Bush. 

Component Number 

Army National Guard/Army Reserve 88,183 

Air National Guard/Air Force Reserve 13,080 

Other Reserves 24,794 

Total 126,057 

(August 22, 1990, to March 15, 1991) 

Source: US. Department of Defense, Total Force Policy Repori to the Congress (December 1990), p. 16, and unpublished data. 

50 Advisory Commission on Intergovernmental Relations