Written By Richard D. Newbold, JD, MBA, CIPP/US/G, LL.M. Candidate|National Security Law

For several weeks, public health officials and politicians have struggled to slow the spread of COVID-19 in nursing homes and long-term care facilities where it has taken the highest toll in mortality, and the military has been tapped to assist. The challenge is formidable. Over 4 million Americans are admitted to or reside in nursing homes and skilled nursing facilities each year, and nearly a million people reside in assisted living facilities, according to the Centers for Disease Control (CDC). 

In response, teams of National Guard troops have been fanning out to nursing homes and assisted living facilities across multiple states. Numerous states have now activated members of their National Guard forces to provide support to civil authorities trying to contend with the coronavirus pandemic. However, critics argue that imposing federal planning and operational control over a state’s military assets will result in a less-than-optimal use of both Guard and active-duty forces and potentially exacerbate existing political tensions already. 

The National Guard has a unique dual mission consisting of both Federal and State roles. Governors can call the National Guard into action during local or statewide emergencies, which are normally natural events like storms, fires, floods, and earthquakes. The president can activate the National Guard for participation in federal missions, such as wars, stability operations, and national health emergencies. 

On May 15th, the National Guard Bureau of Public Affairs announced there were more than 46,000 Air and Army National Guardsmen supporting the COVID-19 response at the direction of their governors, which is the largest use of the National Guard for a domestic operation since Hurricane Katrina in 2005, which involved over 51,000 Guard members. 

There are essentially three ways to bring a guardsman into active status. One method is called “state active duty,” in which the governor activates state Guard members in support of a particular mission. In this case, the state bears the cost and Service members are under the governor’s command. The second way is when the federal government activates the National Guard in what is called Title 10 status (or “federalizing” the Guard). In this scenario, the federal government pays associated costs, and activated Guard units are placed under the control of the Secretary of Defense and the President, with an active-duty military officer in the chain of command. 

As outlined in a Secretary of Defense memo dated April 2nd, President Trump authorized the use of Section 12302 of Title 10 to activate units and individual Service members in the Selected Reserve and Individual Ready Reserve to augment forces responding to the COVID-19 outbreak. According to the memo, activation decisions advance three priorities: 1) protecting troops, DoD civilians, and their families; 2) safeguarding national security capabilities; and 3) supporting the whole-of-nation response. The memo encourages voluntary activation and states that involuntary activation should be used “sparingly and only when necessary.”

Under Title 10, whenever Congress determines more units and organizations are needed for national security than are in the regular components of the ground and air forces, the Army National Guard and Air National Guard, together with reserve units, “shall be ordered to active duty and retained as long as so needed.” (see Section 10103) When federalized, Guard units are commanded by the Combatant Commander (COCOM) of the theatre in which they are operating, in this case U.S. Northern Command (NORTHCOM) since the military is responding to a threat in the homeland. 

Because of the Posse Comitatus Act (18 U.S.C. 1385), the US military is barred from directly using its capabilities to enforce US domestic laws unless Congress specifically authorizes it to do so. NORTHCOM leads Department of Defense (DOD) COVID-19 response efforts in the continental United States (CONUS) in support of the Federal Emergency Management Agency (FEMA) and reported that it deployed two Hospital Ships (USNS Mercy and USNS Comfort). The USNS Comfort recently returned from New York to berth at Naval Station Norfolk after having treated just under 200 COVID-19 patients. Both hospital ships have the ability to host up to 1,000 patients and also host 12 operating rooms, 20 post-anesthesia beds and 80 Intensive Care Unit beds. NORTHCOM has also deployed three Army field hospitals, and a 450-person Navy Medical Unit has been put on “Prepare to Deploy” orders to expand the medical capabilities in Texas and Louisiana in the next few days. NORTHCOM has also activated Dual-Status Commanders (DSC), Title 10 deputies, and Joint Enabling Capability (JEC) teams.

The National Guard may also be activated in Title 32 status, where troops remain under the control of the governor but are paid for by the federal government. This situation helps relieve the financial burden on affected states but does not address “unity of command” in cases multiple military units may be performing missions in the same area of operations and confusion may arise.

The National Defense Authorization Act for Fiscal Year 2012 (H.R. 1540) facilitated the use of Dual-Status Commanders to provide unity of effort between State and Federal forces in achieving common objectives in a disaster response and in support of a national event such as a crisis pandemic. A DSC is an officer of the Army (ARNG) or Air National Guard (ANG) or a commissioned officer of the Regular Army or Regular Air Force who has completed specialized training and certification and is jointly managed by NORTHCOM and the National Guard Bureau and may legally serve in two statuses (Federal and State) simultaneously. 

DSCs give a state National Guard unit the ability to command both State National Guard and active-duty military members to better allocate military resources across a wide response area. In “state” status, a DSC is a member of the state chain of command, subject to the orders of the Governor and Adjutant General. In “federal” status, the DSC is a member of the federal chain of command, subject to the orders of the President, the Secretary of Defense, and the supported COCOM and commands assigned Federal forces. Despite the dual-hatted role, if a commander of a National Guard unit (whether a DSC or not) received conflicting orders from the president and state governor, that commander would have to choose which order to follow.

The announcement of National Guard activations likely conjures up images of the 1970 Kent State massacre, only with convoys of armed troops descending on the elderly and infirm. The reality on the ground has been much more reassuring, as troops with appropriate training are currently augmenting nursing home staff, supporting warehouse and logistics operations, and helping deliver and distribute lifesaving medical equipment and mobile test kits. However, the situation could become more dire. If this were to occur, the same or perhaps even more troops would likely be ordered to perform additional tasks at nursing homes and other facilities, potentially putting military personnel as well as vulnerable residents in jeopardy. Although the elderly and those with underlying health conditions are more likely to succumb, so far three service members have died from the virus, according to reports. On the heels of Memorial Day, let us never forget those who voluntarily give their lives in defense  of the nation.

Disclaimer: The views expressed above are the author’s own and do not reflect those of SALPAL or Georgetown University.