The National Guard is a creation of the U.S. Constitution, the U.S. Code, and state statutory authority.
Under the U.S. Constitution, Congress is granted the authority to organize, arm, discipline, and call forth the Militia to “be employed in the Service of the United States…”
The composition of the militia is more specifically defined in the U.S. Code, which incorporates the National Guard into the organized component of the militia of the United States.
The organization of the National Guard in Kansas is specified in Chapter 48 of the Kansas Statutes Annotated. “The Kansas army and air national guard shall consist of such units as the governor of Kansas may from time to time authorize to be formed, all to be formed and organized in accordance with the laws governing the regular army and regular air force of the United States and the regulations issued by the secretary of defense, the department of the army and thee department of the air force of the United States.”
As a result, the National Guard exists as both a state and federal entity. Accordingly, the National Guard provides both the state and federal government with trained armed forces support in appropriate conditions.
What is Mobilization of the National Guard?
Mobilization of the National Guard is the process by which reservists are brought into active duty service for a prescribed set of circumstances.
State Definition
Although relevant state statutes do not explicitly define what “mobilization” means, KSA 48-238 states the Governor is required in certain cases “to call upon the national guard to defend the State or aid the civil authorities to enforce the laws thereof.” [Note: Under the Kansas Family Law Code Revised, KSA 23-3217 defines “mobilization” with regard to child custody and parenting time as “the call-up of a National Guard or reserve service member to extended active-duty status.”]
Federal Definition
Title 10 of the U.S. Code mobilizes the National Guard through the call of “units of the National Guard of any State” to active duty.
The National Guard, distinct from federal reservists and active-duty military personnel, is subject to Title 10 active duty, Title 32 full-time National Guard duty, and state active-duty military orders for mobilization.
Who May Mobilize the National Guard?
Because the National Guard is both a state and federal entity, it may receive orders from the state or federal government.
Governor
The Governor, by statute, presides as the Commander in Chief for the State of Kansas and has supreme command of the state’s military forces until they are ordered or accepted into the services of the United States.
Kansas law grants the Governor the ability to “muster out any national guard organization of the state…” and discharge members “from military service of the state.”
President of the United States
Similarly, the President of the United States presides as the Commander in Chief of the United States. The U.S. Constitution states “the President shall be Commander in Chief… of the Militia of the several States, when called into the actual Service of the United States…”
Title 10 of the U.S. Code prescribes circumstances in which the President may order the National Guard to active duty, as the Commander in Chief.
When May the National Guard be Mobilized?
State Mobilization
Pursuant to Kansas law, the Governor may order the National Guard to mobilize under three instances:
- Request by civil authorities to support federal or state law enforcement agencies in counter-drug and drug interdiction operations when such request is approved by the Commander in Chief;
- A need for personnel to support the Adjutant General’s Department during a local, state, or federal disaster or other mission; or
- Breaches of the peace, tumult, riot, or resistance to process in this state, public disaster, or imminent danger thereof.
Federal Mobilization
Title 32
Similarly, the National Guard may be activated to full-time National Guard duty pursuant to Title 32 of the U.S. Code.
“Full-time National Guard duty” is legally defined as “training or other duty, other than inactive duty, performed by a member of the Army National Guard of the United States or the Air National Guard of the United States in the member’s status as a member of the National Guard of a State or territory…”
“Active guard and reserve duty” more specifically refers to “active duty performed by a member of a reserve…or full-time National Guard duty performed by a member of the National Guard pursuant to an order to full-time National Guard duty…for the purposes of organizing, administering, recruiting, instructing, or training reserve components.”
Title 32 provides for five circumstances that may be used to mobilize National Guard forces to active duty by the President:
- For purposes of the training of civilians in the use of military arms;
- To attend schools conducted by the Army or the Air Force;
- To conduct or attend schools conducted by the National Guard;
- To participate in small-arms competitions;
- For the purposes of different training and field exercises pursuant federal law; and
- To “support or execute homeland defense activities…”
Title 10
Members of the National Guard also may be mobilized federally through Title 10 of the U.S. Code. Title 10 activation orders National Guard members to serve in federal active-duty alongside reserves and active duty military components.
The U.S. Code sets forth multiple methods of mobilization under Title 10:
- Call into federal service the militia of other states as the President considers necessary to suppress an insurrection in any state against its government;
- To enforce the laws of the United States or to suppress rebellion;
- To suppress in a state any insurrection, domestic violence, unlawful combination, or conspiracy in hindrance of the laws of the state and the United States;
- For selected or ready reserve, a member of the National Guard may be mobilized into active duty upon declaration of war or national emergency by Congress;
- Mobilization to active duty may be made upon a national emergency declared by the President;
- When it has been determined that it is necessary to augment the active military forces;
- Upon the request of federal assistance by a governor in response to a major disaster or emergency;
- Whenever the United States, or any of the commonwealths or possessions, is invaded or is in danger of invasion by a foreign nation;
- There is a rebellion or danger of a rebellion against the authority of the United States government; and
- The President is unable, with the regular armed forces, to execute the laws of the United States.
What is the Effect of Mobilizing the National Guard?
The ultimate effect of a mobilization order depends on its type. Under state active duty, members of the National Guard are limited to pay in accordance with state law.
State active duty is limited to deployment within the continental United States and forces remain under the command of the Governor. Full-time National Guard duty is also limited to deployment within the continental United States with forces remaining under the command of their state’s governor.
In a federal activation, guardsmen are entitled to federal pay and allowances through the duration of their mobilization. Like Title 32 full-time National Guard duty activations, Title 10 federal active duty entitles guardsmen to federal pay and allowances. However, Title 10 mobilizations bring the National Guard members under the command of the President, and deployments may be worldwide.
The length of a mobilization order and any extensions thereof are statutorily defined, but may be modified by active duty agreement.
By Kyle Anderson and Mike Ditch.
See Veterans, Military and Security for more.