Good story. One note of interest is that the reporter writes:
“This legislation sets up a potential constitutional collision. The Supreme Court ruled in Perpich v. Department of Defense (1990) that CONGRESS (emphasis added) can authorize the President to call up the Guard without gubernatorial consent, stripping states of veto power over federal deployments.”
To my knowledge, Congress has not ruled on any such measure for Trump since his second term began. Also, would this not be on a case-by-case basis? In other words, Congress would have to give Trump such permission for each incident whether it be Venezuela, Iran, Greenland, Cuba or, heavens knows, where else Trump might choose to strike.
Which is the point: Congress should be involved, not standing to the wayside and letting Trump rule the nation's armed forces (including states’ National Guard Units) by fiat.
As long as he or she serves under the command of the governor the national guard member is subject to Title 32 and is not subject to Title 10, including 10 U.S.C. § 12305. Therefore, § 12305 cannot be used to prevent a national guard member from resigning while that member is still under the command of the governor.
Thanks for raising this — you’re right on the narrow point that while a Guard member is serving purely under Title 32, 10 U.S.C. § 12305 does not operate directly on that state status, and a governor technically retains authority over state service.
Where the interpretation falls short is in treating Title 32 status as a practical exit from federal retention authority.
National Guard officers hold dual commissions: a state appointment and a federal commission in the Reserve of the Army or Air Force. Even if a governor accepts a state resignation, the federal commission does not automatically terminate. During a stop-loss or national emergency, § 12305 authorizes the President to suspend separations “notwithstanding any other provision of law,” which prevents the federal resignation from being accepted.
In practice, an officer separated from state status is transferred to the Individual Ready Reserve, where they remain fully subject to involuntary mobilization under federal law. So while the state and federal authorities are distinct on paper, they do not function as independent escape routes during a declared emergency.
In short: Title 32 limits the governor’s authority, not the federal government’s. During a stop-loss, resignation becomes a request rather than a right, regardless of current duty status.
I appreciate the thoughtful engagement — this is a genuinely complex area where the statutory distinctions don’t always align with operational reality.
Good story. One note of interest is that the reporter writes:
“This legislation sets up a potential constitutional collision. The Supreme Court ruled in Perpich v. Department of Defense (1990) that CONGRESS (emphasis added) can authorize the President to call up the Guard without gubernatorial consent, stripping states of veto power over federal deployments.”
To my knowledge, Congress has not ruled on any such measure for Trump since his second term began. Also, would this not be on a case-by-case basis? In other words, Congress would have to give Trump such permission for each incident whether it be Venezuela, Iran, Greenland, Cuba or, heavens knows, where else Trump might choose to strike.
Which is the point: Congress should be involved, not standing to the wayside and letting Trump rule the nation's armed forces (including states’ National Guard Units) by fiat.
Great Article! The bottom line is the "Military" is Federal, no matter how you cut the Cake....
As long as he or she serves under the command of the governor the national guard member is subject to Title 32 and is not subject to Title 10, including 10 U.S.C. § 12305. Therefore, § 12305 cannot be used to prevent a national guard member from resigning while that member is still under the command of the governor.
Hi James,
Thanks for raising this — you’re right on the narrow point that while a Guard member is serving purely under Title 32, 10 U.S.C. § 12305 does not operate directly on that state status, and a governor technically retains authority over state service.
Where the interpretation falls short is in treating Title 32 status as a practical exit from federal retention authority.
National Guard officers hold dual commissions: a state appointment and a federal commission in the Reserve of the Army or Air Force. Even if a governor accepts a state resignation, the federal commission does not automatically terminate. During a stop-loss or national emergency, § 12305 authorizes the President to suspend separations “notwithstanding any other provision of law,” which prevents the federal resignation from being accepted.
In practice, an officer separated from state status is transferred to the Individual Ready Reserve, where they remain fully subject to involuntary mobilization under federal law. So while the state and federal authorities are distinct on paper, they do not function as independent escape routes during a declared emergency.
In short: Title 32 limits the governor’s authority, not the federal government’s. During a stop-loss, resignation becomes a request rather than a right, regardless of current duty status.
I appreciate the thoughtful engagement — this is a genuinely complex area where the statutory distinctions don’t always align with operational reality.