# National Guard Federalization Flow The three legal statuses a [[National Guard]] unit can occupy, what changes when it moves between them, and the four statutory doors that lead into the one status where the [[Posse Comitatus Act]] applies. This is the process layer under the 2025–26 domestic-deployment fights: the same soldiers, in the same city, wearing the same uniform, are governed by entirely different law depending on which of three boxes they are standing in. The single most useful thing this map does is separate two questions that news coverage collapses into one. **Whether troops deploy** is a political question with a well-worn answer — governors invite them constantly, for hurricanes and floods and the occasional riot. **What legal status they deploy in** is the contested question, and it is decided by whether the governor consents. Title 32 gives the federal government federal money, a federal mission, and a federally requested deployment with **no** Posse Comitatus restriction, on the single condition that a governor agrees. Title 10 removes the governor entirely and switches on a criminal statute. Everything litigated between June 2025 and April 2026 was an argument about that switch. Sibling maps: [[Emergency Powers Crosswalk]] maps which statutes a declared emergency unlocks; this one maps a unit's legal status over time. [[War Powers Decision Flow]] is the foreign-deployment analogue, and [[Federalism Powers Crosswalk]] is the general state–federal division this is one instance of. > [!note] How to read this chart > `──▶` = a status change · `◇` = a decision point · `★` = a legally operative act · `✕` = the path is closed or dies here · `⚑` = a contested claim or a structural point worth stopping on. Statutory cites are to Titles 10, 18, and 32 of the U.S. Code as in force September 2026. **No officeholders are named inside the fence by design** — the process is evergreen and turnover in these seats has been extreme. The 2025–26 record block is the dated worked example, verified at build time. ``` NATIONAL GUARD FEDERALIZATION FLOW — three statuses, four doors, one criminal statute │ Legend: ──▶ status change ◇ decision ★ operative act ✕ closed path ⚑ contested claim │ Process evergreen · 2025–26 worked examples verified 2026-09-02 · no officeholders by design │ ■ 0. THE FLOOR — one soldier, two commissions, and a switch between them │ │ Art. I §8 cl.15–16 (the Militia Clauses): CONGRESS holds the power "to provide for │ calling forth the Militia to execute the Laws of the Union, suppress Insurrections │ and repel Invasions," and to organize and arm it — the STATES keep officer │ appointment and training authority. │ Art. II §2: the President commands the militia only "when called into the actual │ Service of the United States." │ ⚑ The sequence is the whole design. The call-forth power is LEGISLATIVE; the command │ power is executive and CONDITIONAL on a call Congress authorized by statute. │ │ Since the Militia Act of 1903 and the 1933 amendments every Guard member holds a │ DUAL ENLISTMENT — a state militia commission AND a commission in the National Guard │ of the United States, a federal reserve component. Federalization therefore does not │ transfer a soldier anywhere. It flips which commission is active. │ Perpich v. Dep't of Defense (1990, 9-0) settled that Congress may activate the │ federal commission for overseas training over a governor's express refusal. │ ├──▶ STATUS 1 ── STATE ACTIVE DUTY (SAD) — state law, top to bottom │ Commander ......... the Governor │ Payer ............. the State │ Posse Comitatus ... DOES NOT APPLY — these are not federal forces at all │ Typical use ....... hurricanes, floods, wildfires, state-law policing support │ Federal role ...... none │ ├──▶ STATUS 2 ── TITLE 32 — federally funded, state commanded ◀── the workhorse │ Commander ......... the Governor (32 U.S.C. §328 — the GOVERNOR issues the order) │ Payer ............. the United States (32 U.S.C. §502(f), "training or other duty") │ Posse Comitatus ... DOES NOT APPLY — §1385 reaches the FEDERAL armed forces, and a │ Title 32 soldier remains under state command and control │ Consent ........... the GOVERNOR's. Under §502(f)(2)(A) the President or SecDef may │ only REQUEST such duty. A governor may simply decline. │ ⚑ This status does most of the real work, and it is the quiet one. Federal money, │ federal mission, federal request — and none of the federal restriction. It is │ what the Brennan Center calls the Posse Comitatus loophole, and closing it has │ been proposed in every recent NDAA cycle and enacted in none. │ ⚑ Consented Title 32 deployments generate almost no federal litigation, because │ there is no federalization to challenge. Memphis (Oct 2025) and New Orleans │ (Dec 2025) both ran here at the governors' own request. │ └──▶ STATUS 3 ── TITLE 10 — federalized Commander ......... the President → SecDef → the combatant command (NORTHCOM) Payer ............. the United States The Governor ...... CUT OUT. Not asked, not required, cannot recall the unit. Posse Comitatus ... APPLIES. 18 U.S.C. §1385 makes it punishable by up to 2 years to willfully use the Army, Navy, Marine Corps, Air Force or Space Force "to execute the laws," except as expressly authorized by the Constitution or an Act of Congress. [ Navy, Marines and Space Force added by the FY22 NDAA, Pub. L. 117-81 §1045(a), 12/27/2021 — the "Army and Air Force only" description of the PCA is now five years stale ] ⚑ So: the fight was never about whether troops appear on a street. It is about which STATUS puts them there, because the status decides whether §1385 is in the room — and §1385 is the premise of every injunction that has issued. ◆ THE FOUR DOORS INTO TITLE 10 — and they are not interchangeable │ ├─ DOOR A ── 10 U.S.C. §12406 "National Guard in Federal service: call" │ ◇ Predicate — the President must find ONE of three: │ (1) the U.S. "is invaded or is in danger of invasion by a foreign nation" │ (2) "there is a rebellion or danger of a rebellion against the authority of │ the Government of the United States" [ "rebellion" is UNDEFINED ] │ (3) the President "is unable with the regular forces to execute the laws of │ the United States" │ ★ Orders "shall be issued THROUGH the governors of the States." │ ⚑ Executed since June 2025 as a notification, not a request. No court has held │ the clause gives a governor a veto — and none has held it does not. │ ✕ What §12406 does NOT do: it federalizes, and that is all. It does not authorize │ law enforcement. §1385 attaches to the Title 10 force the moment it is created. │ The government's repeated conflation of these two is what it kept losing on. │ ⚑ No numeric cap. No duration limit. No report to Congress. Compare Door D. │ ├─ DOOR B ── the INSURRECTION ACT (10 U.S.C. §§251-255; renumbered from 331-335 in 2016) │ §251 insurrection against a STATE government ...... REQUIRES that state's request │ (legislature, or governor if │ it cannot be convened) │ §252 obstruction makes it "impracticable to NO state request needed │ enforce the laws of the United States ... by │ the ordinary course of judicial proceedings" │ §253 deprivation of a class's constitutional NO state request needed — and │ rights the state cannot or will not protect, the verb is "SHALL take such │ OR obstruction of federal law or justice measures as he considers │ necessary" │ §254 ★ PROCLAMATION TO DISPERSE — required first, whenever the chapter is used │ ⚑ This is the door that switches Posse Comitatus OFF, because §1385 excepts what an │ Act of Congress expressly authorizes. It is also the only door with a public, │ dated, signed instrument at its threshold — and that visibility is the deterrent. │ THREATENED REPEATEDLY IN 2025-26. NEVER INVOKED. │ ├─ DOOR C ── the D.C. EXCEPTION — no governor to route an order through │ D.C. Code §49-409 (Act of Mar. 1, 1889): "The President of the United States shall │ be the Commander-in-Chief of the militia of the District of Columbia." │ Delegated by EO 11485 (1969): President → SecDef → Secretary of the Army. │ §12406's orders clause routes through "the commanding general of the National Guard │ of the District of Columbia" instead of a governor. │ ⚑ Consequence: the D.C. Guard can be deployed under direct presidential command │ WITHOUT being federalized — which is the government's argument that §1385 never │ attaches at all. It is the only structural argument it has so far won on. │ └─ DOOR D ── the §1230x MOBILIZATION AUTHORITIES — a door Congress bolted shut §12301(a) full mobilization — war or emergency declared by CONGRESS §12302 partial mobilization — presidential emergency; ≤24 months, ≤1,000,000 §12304 Presidential Reserve Call-Up — ≤365 days, ≤200,000, 24-hour report to Congress ✕ §12304(c)(1) EXPRESSLY FORBIDS using that authority to perform "any of the functions authorized by chapter 15 or section 12406 of this title." ⚑ Read Doors A and D together and the asymmetry is the finding: Congress attached caps, clocks and reporting to every mobilization authority, then walled them off from domestic use — leaving the domestic instrument, §12406, the only one with no cap, no clock and no reporting requirement at all. ◆ ONCE TROOPS MOVE — the courthouse, and what it can actually reach │ ├─ ◇ Is the President's §12406 finding reviewable at all? │ Government ......... Martin v. Mott (1827): the exigency determination "belongs │ exclusively to the President, and ... his decision is │ conclusive upon all other persons." │ Every court to │ reach it, 2025-26 ... NO. Sterling v. Constantin (1932) supplies the standard — │ the executive gets a "permitted range of honest judgment," │ which is deference, not immunity. │ 9th Cir. 6/19/2025 .. reviewable, but "highly deferential" → stay GRANTED │ 7th Cir. 10/16/2025 . reviewable; great deference on the FACTS, but NO deference │ and de novo review on what the STATUTORY WORDS MEAN │ ├─ ★ SUPREME COURT — Trump v. Illinois, 12/23/2025 (stay DENIED · unsigned · 3 dissents) │ "Regular forces" in §12406(3) LIKELY MEANS THE REGULAR U.S. MILITARY — not ICE, │ not the Federal Protective Service, not any federal civilian officer. │ ⟹ the President must be unable WITH THE MILITARY to execute the laws │ ⟹ which presupposes the military COULD lawfully execute them │ ⟹ which §1385 makes exceptional │ ⟹ and the government "failed to identify a source of authority" that would. │ ⚑ Formally an interim stay order at the "likely" stage, not a merits holding. │ REVIEWABILITY EXPRESSLY RESERVED. The Insurrection Act is untouched by it. │ One concurrence reached the judgment on the narrower ground that the required │ determination had simply never been made — so the broad statutory reading │ commanded fewer votes than the 6-3 outcome suggests. │ ├─ WHO CAN SUE ......... STATES and CITIES, on sovereign and proprietary injury. │ Individual protesters generally cannot: Laird v. Tatum (1972) │ holds that subjective chill is not an Article III injury. │ └─ ◇ WHAT A COURT CAN ORDER — and the gap that ended every single one of these cases ✓ Enjoin the DEPLOYMENT — the operational use of the troops ....... done, repeatedly ✓ Declare a PCA violation and enjoin law-enforcement use ........... 9/2/2025 ✓ Enter a PERMANENT INJUNCTION after trial on the predicates ....... 11/7/2025 ~ Order DEFEDERALIZATION — the unit back to the governor ........... ordered 6/12/2025, stayed within hours, never sustained ✕ Reach the merits after the executive has already withdrawn ....... ⚑ THE GAP A case ends when the troops go home. Withdrawal moots the appeal, and the ruling below survives unreviewed — or, if it was the government's own appeal, is dismissed on the government's own motion. ◆ THE 2025-26 RECORD — the same shape five times │ │ LOS ANGELES .... 6/7/2025 · §12406(3) · ~4,000 CA Guard + ~700 Marines over the │ governor's objection · TRO 6/12 stayed in hours · 9th Cir. stay 6/19 · │ PCA VIOLATION FOUND 9/2 · en banc denied 10/22 over ten dissents · │ deployment ended 12/10-12/15 · control back to the governor 12/30-12/31 │ │ PORTLAND ....... 9/2025 · §12406 · ~200 OR Guard · TROs 10/4 and 10/5 · 9th Cir. panel │ stay 10/20 · EN BANC GRANTED AND STAY VACATED 10/28 · trial 10/29-10/31 · │ PERMANENT INJUNCTION 11/7 — neither (2) nor (3) satisfied · │ government dismissed ITS OWN APPEAL 2/17/2026, so the en banc court │ never ruled and the injunction stands unreviewed │ │ CHICAGO ........ 10/4-10/5/2025 · §12406(3) · ~300 IL Guard + ~200 TX Guard · TRO 10/9 · │ 7th Cir. 10/16 · SCOTUS DENIES STAY 12/23 · troops out mid-Jan 2026 · │ DISMISSED AS MOOT from the bench 4/20/2026 │ │ WASHINGTON DC .. 8/2025 · NOT a §12406 case — Title 32 out-of-state units plus the D.C. │ Guard under direct presidential command · PI 11/20/2025 · D.C. Circuit │ STAYED it 12/17 on the President's "unique power within the District │ ... under 32 U.S.C. §502(f)" · deployment extended through end of 2026 │ by Army memorandum 1/14/2026 · appeal still pending │ │ MEMPHIS ....... 10/2025 ┐ governor-REQUESTED, Title 32. The Memphis state-court │ NEW ORLEANS ... 12/2025 ┘ challenge was reversed on standing 4/28/2026. No §12406 suit │ exists for either, because there is nothing to challenge. │ │ MINNEAPOLIS ... 1/2026 · the governor mobilized the Guard himself under STATE authority │ after a federal shooting. The Insurrection Act was publicly threatened │ and not invoked. No federalization; therefore no case. ◆ FIVE THINGS THIS MAP IS FOR │ │ 1. THE CONTESTED VARIABLE IS STATUS, NOT DEPLOYMENT. Title 32 already gives the │ federal government everything it wants except the ability to act over a governor's │ objection. Every fight of 2025-26 was about buying that one thing. │ │ 2. THE POSSE COMITATUS ACT IS THE HINGE, AND IT IS A CRIMINAL STATUTE NOBODY IS EVER │ PROSECUTED UNDER. Its entire practical force is as the premise of a civil │ injunction — which is why the argument is always about whether it applies, never │ about whether it was broken. │ │ 3. §12406 FEDERALIZES; IT DOES NOT AUTHORIZE POLICING. The government's litigating │ position collapsed those two repeatedly, and every court that reached it pulled │ them apart. A district court put it plainly: reading §12406 as its own exception │ to §1385 would nullify the Act. │ │ 4. THE ONE DOOR THAT WOULD ACTUALLY WORK WAS NEVER OPENED. The Insurrection Act │ switches §1385 off by its terms. It was threatened for eighteen months and never │ invoked — because §254 requires a signed, dated, published proclamation ordering │ the insurgents to disperse, and that document is a political cost the informal │ route avoids entirely. │ │ 5. NOT ONE OF THESE RULINGS WAS AFFIRMED ON THE MERITS. Four district courts ruled │ against the government; every case ended in withdrawal, voluntary dismissal, or │ mootness before an appellate court could decide it. The law now governing the │ next federalization is a three-page interim stay order, a permanent injunction │ nobody reviewed, and a circuit stay in the one jurisdiction with no governor. ``` ## Notes - **⚑ The single most load-bearing distinction on this page is the one the coverage almost never draws: Title 32 is federally funded and state commanded, and the Posse Comitatus Act does not touch it.** Section 1385 reaches "the Army, the Navy, the Marine Corps, the Air Force, or the Space Force" — the *federal* armed forces. A Guard member in Title 32 status has not been called into federal service under 10 U.S.C. § 12401 or § 12406 and remains under the governor's command and control, so the statute never attaches, however federal the money and the mission are. This is the structural reason Memphis and New Orleans produced no federal litigation while Los Angeles, Portland, and Chicago produced four courts' worth: a consented deployment has nothing to challenge. - **The Posse Comitatus Act is not an "Army and Air Force" statute anymore, and sources written before 2022 will say it is.** The Navy, Marine Corps, and Space Force were written into 18 U.S.C. § 1385 by **Pub. L. 117-81 § 1045(a), December 27, 2021** — the FY2022 NDAA. Before that date, Navy and Marine coverage was a matter of DoD regulation rather than statute. The Coast Guard remains outside it, because it holds express statutory law-enforcement authority. - **10 U.S.C. § 12406 has no subsections (a) and (b).** Briefs and opinions citing "§ 12406(b)" are using shorthand for the undesignated flush paragraph that carries both the grant of authority and the "through the governors of the States" orders clause. The three predicates are unnumbered paragraphs (1) through (3). The section was added by Pub. L. 103-337 § 1662(f)(1) in 1994; it descends from former §§ 3500 and 8500. - **The Insurrection Act's sections were renumbered and the old numbers are still in circulation.** Sections 331 through 335 became **§§ 251 through 255** by Pub. L. 114-328 § 1241(a), December 23, 2016. Section 253 briefly carried natural-disaster and terrorist-attack triggers after 2006; that language was **repealed in 2008**. Anyone citing § 333's disaster clause is eighteen years out of date. - **⚑ Section 12304(c)(1) is the sleeper provision on this page.** It forbids using the Presidential Reserve Call-Up "to perform any of the functions authorized by chapter 15 or section 12406 of this title." Chapter 15 is the old Insurrection Act numbering. Congress therefore looked directly at the domestic-deployment authorities, walled the capped mobilization authorities off from them, and left § 12406 uncapped — which is not an oversight so much as an artifact of assuming § 12406 would be used the way it had been used for a century. - **The Supreme Court's December 23, 2025 order in [[Trump v. Illinois]] should be described precisely, because most summaries overstate it.** It is an **unsigned order denying a stay application**, decided at the "likely to succeed" stage, with three noted dissents. Its statutory reading — that "regular forces" in § 12406(3) means the regular U.S. military rather than civilian federal officers — is the first Supreme Court limit on the provision. But one member of the majority concurred **in the judgment only**, on the narrower ground that the President had never actually made the "unable with the military" determination, and criticized the broader analysis. So the sweeping reading commanded fewer votes than the headline count. The Court **expressly reserved** the reviewability question, and expressly did not address the [[Insurrection Act]] or any Article II protective power. - **⚠️ Every one of these cases ended without appellate merits review, and the pattern is not coincidental.** Portland's permanent injunction survives because the government dismissed its own appeal on February 17, 2026, after the en banc Ninth Circuit had already vacated the panel stay in its favor — a party abandoning an appeal it appeared to be winning procedurally is a party avoiding a merits precedent. Chicago was dismissed as moot from the bench on April 20, 2026. Los Angeles wound down between December 10 and December 31, 2025. **The doctrine governing the next federalization was therefore made almost entirely on emergency dockets**, which is the same pattern the vault tracks in [[How an Executive Order Is Issued and Challenged]]. - **⚠️ The status of [[Newsom v. Trump]] in the district court after February 2026 could not be verified as of this writing** and is marked as such on that page. The September 2, 2025 Posse Comitatus ruling and the December 2025 wind-down are solidly sourced; a 2026 final judgment is not. - **No statutory change was enacted.** Neither 10 U.S.C. § 12406, the Insurrection Act, nor 18 U.S.C. § 1385 was amended in 2025 or 2026. The FY2026 NDAA (Pub. L. 119-60, signed December 18, 2025) left all three alone; the governor-consent fight in that cycle concerned Air Guard unit reassignment, a different issue. Amendments requiring gubernatorial consent for federally directed Title 32 operations, and a bill requiring 24-hour notice to Congress before a § 12406 call, were **introduced and went nowhere**. The FY2027 NDAA passed the House on July 22, 2026 and is stalled in the Senate; reports that it contains a Title 32 consent provision could not be verified in the bill text and are **not asserted here**. - **Officeholders were deliberately kept out of the map, and two of the relevant seats are in motion as of this writing.** [[Pete Hegseth]] has been Secretary of Defense since January 25, 2025. **The Secretary of the Army seat — the delegated command authority for the D.C. Army National Guard under Door C — is in transition:** [[Dan Driscoll]] submitted his resignation on August 31, 2026, confirmed by the White House September 1; no effective date and no acting successor had been announced as of this writing, so no name is given. The Chief of the [[National Guard Bureau]] is Gen. [[Steven Nordhaus]] (since October 15, 2024), a Joint Chiefs member who commands no Guard forces. [[Dan Caine]] has chaired the Joint Chiefs since April 11, 2025. The [[United States Northern Command]] commander is not named here: the seat was confirmed occupied only through late July 2026 and no change was reported, which is not the same as verification. - **"Department of War" is a secondary title, not a rename.** [[Executive Order 14347]], signed September 5, 2025, authorizes the usage in correspondence and ceremonial contexts. Congress has not enacted it, and every statute cited on this page — Titles 10, 18, and 32 — still says "Secretary of Defense." A codification proposal went to the Hill in April 2026 requiring roughly 7,600 conforming changes to federal law. - **What this map deliberately omits:** the merits of any particular deployment (see [[Operation Storm Warning]]), the immigration-enforcement operations the troops were sent to protect, the Marine Corps deployments that ran alongside the Guard in Los Angeles under separate Title 10 authority, and [[Martial Law]] proper — which is not a status on this chart because it is not a statutory one. ## See also - [[Foundations Hub]] — parent hub for the map series - [[National Guard]] — the institution this map moves between statuses - [[Posse Comitatus Act]] · [[Posse Comitatus]] — the criminal statute that is the hinge of the whole chart - [[Insurrection Act]] — Door B, the one that switches § 1385 off - [[Militia Clauses]] — the Article I grant Congress is exercising in every one of these statutes - [[Militia Act of 1903]] — the dual-enlistment structure that makes federalization a switch - [[Guarantee Clause]] — the other constitutional route to federal force in a state, and the one that requires an invitation - [[Perpich v. Department of Defense]] — dual enlistment upheld; a governor cannot block federal activation - [[Martin v. Mott]] · [[Sterling v. Constantin]] — the two poles of the reviewability argument - [[Trump v. Illinois]] — the December 2025 order reading "regular forces" - [[Federal Law Enforcement Agencies Tree]] — the civilian layer that order held is *not* what § 12406(3) measures: 133,798 armed, arrest-authorized federal officers across 89 agencies, inventoried by employing department - [[Newsom v. Trump]] · [[Oregon v. Trump]] · [[District of Columbia v. Trump]] — the three federalization cases - [[Laird v. Tatum]] — why states and cities sue and protesters cannot - [[Ex parte Milligan]] — the outer limit on military process against civilians - [[Youngstown Sheet and Tube Co. v. Sawyer]] — the framework for domestic use of military power - [[Political Question Doctrine]] — the doctrine the government argued for and did not get - [[Defense Support of Civil Authorities]] — the DoD framework, and the "protective power" claim inside it - [[State Defense Forces]] — the one uniformed body a governor holds that cannot be federalized - [[National Guard Bureau]] · [[United States Northern Command]] — the administrative hinge and the operational destination - [[Federal Protective Service]] · [[Immigration and Customs Enforcement]] — the civilian forces the Supreme Court said § 12406(3) does not measure - [[District of Columbia Home Rule Act]] — the statute Door C runs around - [[Executive Order 14347]] — why the department's name and its statutes disagree - [[Karin Immergut]] · [[Charles Breyer]] · [[April Perry]] · [[Jia Cobb]] — the four district judges - [[Gavin Newsom]] · [[Tina Kotek]] · [[J.B. Pritzker]] · [[Tim Walz]] — the governors who refused - [[Bill Lee]] · [[Jeff Landry]] — the governors who asked - [[Pete Hegseth]] · [[Dan Caine]] · [[Steven Nordhaus]] · [[Dan Driscoll]] — the command chain - [[Operation Storm Warning]] — the Los Angeles deployment as an event record - [[Emergency Powers Crosswalk]] · [[War Powers Decision Flow]] · [[Federalism Powers Crosswalk]] — sibling maps - [[How a Federal Agency Is Dismantled]] · [[How an Executive Order Is Issued and Challenged]] — the other second-term process flows - [[Unitary Executive Theory]] · [[Separation of Powers]] · [[Federalism]] — the three frames this map sits between - [[Federal Agencies Hub]] · [[Judiciary Hub]] · [[Congress Hub]]