Federalization of the Federal Guard: The Implications of the National Defense Act During the Novel Coronavirus (COVID-19) Pandemic
Under the National Defense Act and its amendments, the President has the authority to federalize the National Guard in times of crisis.
The National Defense Act, ratified by Congress in May of 1916, allows for the federalization of state National Guards in the event of a national emergency. It was enacted in response to mounting domestic concerns during World War I. In 1915, as war broke out across Europe, the United States originally committed to its isolationist stance and resolved not to get involved in the war. However, when a German submarine sunk the British passenger ship R.M.S. Lusitania killing 120 Americans onboard, the government was forced to reconsider. After the sinking of the Lusitania, U.S. government officials met in Washington D.C. to determine the country’ response, but they were still hesitant to declare war against Germany as they feared the U.S. armed forces were unequipped to win a large-scale war.
The Impetus Behind the Enactment of the National Defense Act
When World War I began, the United States Army was still relatively small in size, and the state National Guards had vastly different capabilities and resources. While government officials were still deciding what to do regarding the deaths of 120 Americans onboard the Lusitania, Francisco “Pancho” Villa and his rebel forces invaded the United States at its southern border. The Army was not large enough to hunt down Villa, nor was it large enough to protect the southern border against possible future invasions. Villa’s domestic attack spurred the U.S. government to reach a resolution regarding the preparedness of the nation’s armed forces; and, four months after Villa’s invasion, President Woodrow Wilson signed the National Defense Act into law.
Under the National Defense Act, the Army was to increase its numbers during peacetime to 175,000 soldiers, with authorization to increase its wartime numbers to 300,000. The Act called for the National Guard to expand to over 400,000 servicemembers. To address the inconsistencies in training among each state’s National Guard, the National Defense Act also allocated federal funds to states to pay for drilling, training, and equipment.
Federalization of the National Guard Under the National Defense Act
Importantly, the National Defense Act also authorized the President to call the National Guard to active duty, thus codifying the National Guard as both a state and national entity. This “federalization” of the National Guard allowed for the timely mobilization of American troops during both World War I and World War II. Various subsequent enactments have further expanded the President’s authority to mobilize the National Guard, including the National Defense Authorization Act of 2007 which allows the President to mobilize the National Guard domestically without state governors’ consent.
The National Defense Act also gave $17 million to the Army to acquire over 370 new airplanes and created a new Amy air division with its base at Langley Field, Virginia, and it addressed concerns regarding the lack in speed of munitions manufacturing during times of war by authorizing the construction of two nitrate-manufacturing plants in Alabama, along with an industrial village, and a hydropower dam. Although these efforts may seem relatively small in scope by today’s standards, the National Emergencies Act and the Defense Production Act (both of which President Trump has invoked during the novel coronavirus pandemic) provide the federal government with significantly greater authority to ensure that the nation has adequate resources to protect itself in times of crisis.
While the National Defense Act was signed into law more than 100 years ago, it remains an important weapon in the federal government’s arsenal to fight threats at the national level. The federalization of the National Guard allows the United States to stand as a unified force when facing national emergencies such as the novel coronavirus (COVID-19) pandemic, and its amendments further expand upon the President’s ability to mobilize the National Guard as and when necessary.
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Dr. Nick Oberheiden, founder of Oberheiden P.C., focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation.