Legality of National Guard and Presidential Orders

Overview

The National Guard is a unique military force that can be controlled by both state governors and the President of the United States. The President, as Commander-in-Chief, can federalize the National Guard under certain circumstances.

Legal Authority

• State Control: Normally, the National Guard operates under the authority of state governors.
• Federalization: The President can federalize the National Guard under Title 10 of the U.S. Code, usually during national emergencies or to enforce federal laws.
• Insurrection Act: Allows the President to deploy the Guard domestically to suppress insurrection or enforce federal authority.

Lawful vs. Unlawful Orders

• Members of the National Guard must follow lawful orders from the President or their governor.
• If an order is unconstitutional or illegal, service members have a duty to refuse it.
• The Uniform Code of Military Justice (UCMJ) and U.S. law make it a crime to follow clearly unlawful orders.

Trump and the National Guard

• During the Trump administration, there were instances where the use of the National Guard was considered or enacted (e.g., protests in 2020).
• Legal debates focused on whether such orders were within the President’s authority and whether they complied with the Constitution and federal law.
• Ultimately, the legality depends on the specific circumstances and whether the orders were lawful under the Constitution and statutes like the Insurrection Act.

Conclusion

The President can order the National Guard to act under certain legal frameworks, but those orders must be constitutional and lawful. Service members are obligated to refuse unlawful orders, even from the President.

What to Do If You Believe an Order Is Unlawful

If a service member believes an order is unlawful and does not want to follow it, they should:

• Report their concerns through their chain of command, if possible.
• Contact the Inspector General (IG) of their branch of service for confidential reporting.
• Seek legal advice from the Judge Advocate General’s (JAG) office.
• Use the Department of Defense (DoD) Hotline: 1-800-424-9098 (for reporting fraud, waste, abuse, or other serious concerns).

GI Hotlines and Support Resources

There are additional hotlines and organizations that provide support and guidance to service members:

• GI Rights Hotline: 1-877-447-4487 — Free, confidential counseling on military regulations, discharges, and rights.
• Military OneSource: 1-800-342-9647 — Confidential help and resources for service members and families.
• Inspector General (IG) Offices: Each service branch has IG offices for reporting concerns within the military.

These resources can help service members understand their rights, report unlawful orders, and get support with military legal issues.