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self-study / Constitutional Law

Oct. 5, 2023

Who gets to punish members of the National Guard?

4th Appellate District, Division 3

Eileen C. Moore

Associate Justice, California Courts of Appeal

" Th e Constitution forbids President Biden from treating the non-federalized militia just like the Army."

- The Fifth Circuit Court of Appeals

A recent opinion from the Fifth Circuit Court of Appeals raises old issues regarding federal authority over states' National Guards, sometimes referred to as militias. The case concerns a federal order regarding vaccinations. But at the heart of the matter is states' rights to govern their own National Guards and militias.

History of the National Guard

Although the title "National Guard" was not actually used by militia units until 1824, it is said the National Guard began on Dec. 13, 1636, when the Massachusetts Bay Colony organized three regiments of militia to defend against local Indians. In grammar school, we learned about the Minutemen fighting British troops during the Revolutionary War. When our Founding Fathers prepared our documents, they feared a standing army, preferring citizens be ready to defend our country instead. In Federalists No. 4, James Madison argued that a standing army could be offset by a militia of citizens with arms in their hands. When the Constitution was written, Article 1, section 8, clauses 15 and 16 granted Congress the power to "provide for organizing, arming, and disciplining the Militia" and "To provide for the calling of the militia to execute the laws of the Union, suppress insurrections, and repel invasions." Each state has its own National Guard.

In the Militia Act of 1792, Congress mandated that all free, able-bodied male citizens between 18 and 45 years old enroll in the militia in their respective states. For a long time, there were disputes over whether the National Guard was under the control of the federal or state governments.

During the Spanish-American War of 1898, President William McKinley individually swore members of the militia into federal service. Under those circumstances, the troops were, in effect, volunteers. This procedure obviated the restriction of sending National Guard troops to serve on foreign soil.

The Militia Act of 1903, 10 U.S.C. § 311, codified when the National Guard of the states may be federalized. The National Defense Act of 1916 allowed the President to draft state Guard troops into the regular Army, permitting the federal government to rely on Article 1, section 8, clause 12's power to raise and support armies, rather than the militia clauses. Thus, as federalized troops, they could be sent anywhere in the world. Timing is everything, of course. Shortly thereafter, President Woodrow Wilson sent National Guard troops to Europe when the United States entered World War I.

Today, persons enlisting in a state National Guard unit simultaneously enlist in the National Guard of the United States. State governors accept allotments of military personnel and equipment from the Department of Defense to train the National Guard. Enlistees retain their status as state Guard members unless and until ordered to active federal duty, and revert to state status upon being relieved from federal service. When joining the National Guard, soldiers and officers swear to obey the orders of both the state Governor and the President of the United States.

Sometimes Governors disagree with the federal government over National Guard issues

In 1986, after Governors George Deukmejian of California and Joseph Brennan of Maine refused to allow the deployment of their states' National Guard units to Central America for training, Congress passed the Montgomery Amendment, 10 U.S.C. § 672(b)(d), which prohibited state governors from withholding their consent to overseas deployments for training without the declaration of a national emergency. The governor of Minnesota, Rudy Perpich, challenged the law, arguing it violated Article 1, section 8 of the Constitution. The case ended up in the U.S. Supreme Court. In Perpich v. Department of Defense (1990) 496 U.S. 334, the high court held the fact that Guard units also have an identity as part of the state militia does not limit Congress's plenary authority to train the units as it sees fit when the Guard is called to active federal service. In the 2006 National Defense Authorization Act, Public Law 109-163, there is a provision that gives the President the authority to mobilize National Guard Units without the consent of state Governors.

The federal order that ignited the latest disagreement with some Governors

On Aug. 24, 2021, Secretary of Defense, Lloyd Austin, directed the secretaries of the branches of military service to begin full vaccination of all military members "under DoD authority on active duty or in the Ready Reserve, including the National Guard, who are not fully vaccinated against COVID-19."

The governor of Oklahoma asked for the National Guard to be exempted

In early November 2021, Oklahoma Governor Kevin Stitt requested that his state's National Guard be exempted from the vaccine mandate. The Governor informed DoD that approximately 800 members of the Oklahoma National Guard refused to get the vaccine. About a week later, the General in charge of the Oklahoma National Guard informed DoD that he answers to the Governor and not to the DoD. However, the General said if the federal government activates the National Guard under federal orders, he would enforce the mandate.

The Department of Defense Doubled Down

On Nov. 30, 2021, Secretary Austin issued another memorandum, stating: "Unless otherwise exempted in accordance with Department policy, all members of the National Guard must be fully vaccinated for COVID-19 by the deadlines established by the Army or Air Force, as appropriate, or must subsequently become vaccinated, in order to participate in drills, training and other duty conducted under Title 32, U.S. Code. ¶No Department of Defense funding may be allocated for payment of duties performed under title 32 for members of the National Guard who do not comply with Department of Defense COVID-19 vaccination requirements." [When operating under Title 32, the Guard is not under federal authority, but under state authority.]

The lawsuit filed by the governors of Alaska and Texas

The governors of Alaska and Texas, Mike Dunleavy and Greg Abbott, asked a federal court in Texas to issue a preliminary injunction against the Biden administration. Their lawsuit contended the federal government's vaccine mandates exceeded its authority. A federal trial court in Texas denied the request, holding that President Biden had statutory authority to issue vaccine mandates and that the DoD's enforcement of its COVID-19 vaccination requirement did not amount to federal governing of states' militias. (Abbott v. Biden (2022) 60 F.Supp. 3d 47)

Rescission of vaccine mandates

Because the 2023 National Defense Act, Public Law 117-263, mandated it, Secretary Austin rescinded both the Aug. 24, 2021 and the Nov. 30, 2021 memos on Jan. 10, 2023.

Appeal of the denial of request for a preliminary injunction

Despite the rescission of the vaccine mandates, the governor of Texas continued with the appeal of the denial of the preliminary injunction. And, in fact, the Fifth Circuit Court of Appeals found the action was justiciable.

Why wasn't it moot? Well, Secretary Austin's Jan. 10, 2023 memo rescinding the vaccine mandates included this language: "No individuals currently serving in the Armed Forces shall be separated solely on the basis of their refusal to receive the COVID-19 vaccination if they sought an accommodation on religious, administrative, or medical grounds." About that language, the Fifth Circuit said: "Secretary Austin did not simply rescind the vaccine mandate and all related enforcement measures. Instead, he reserved the ability to punish Guardsmen who didn't seek a religious, administrative, or medical accommodation while the mandate was operative."

The Fifth Circuit's opinion in Abbott v. Biden (2023, 70 F.4th 817) has an impressive discussion of American history, including several references to the Federalist Papers. The opinion notes that the Anti-Federalists worried that the federal government would arrogate to itself too much power over the state militias, but the Federalists insisted that would never happen in that non-federalized militias would remain in the states' domain. The appeals court points out that even James Madison, who was in favor of national control over the militia, conceded that the United States could only govern the militia when the militia is called into national service. The Fifth Circuit's opinion notes that under the Constitution, the President is Commander in Chief of the militia of the states only "when called into the actual Service of the United States." U.S. CONST. art II, § 2."

In reversing the federal district court's denial of a preliminary injunction, the appellate court concluded that "The Constitution forbids President Biden from treating the non-federalized militia just like an Army," adding: "Thus, the Constitution's text, history, and tradition instruct that States retain exclusive authority to punish militiamen--unless and until called into national service. If and when the militia is called into federal service, the President can punish either the refusal to heed his call or the refusal to meet his standards."


When it comes to the National Guard, we are still facing some of the same issues our Founding Fathers deliberated and disagreed about. As the Fifth Circuit noted, the Founders agreed there was a need for a strong national defense, but loathed and feared standing armies while they cherished and trusted the militia.


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