COVID-19 Best Practice Information: Use of the National Guard

Introduction

On March 22, President Trump directed the Secretary of Defense to permit full federal reimbursement, by FEMA, for some states’ use of their National Guard forces.  The President’s action provides Governors continued command of their National Guard forces, while being federally funded under Title 32. Each state’s National Guard is still under the authority of the Governor and is working in concert with the Department of Defense.

Response to the coronavirus will necessitate a whole of community and whole of nation response. This document is one of a series designed to facilitate the sharing of best practices from other disaster events combined with the experiences of communities that have already faced some of the COVID-19 challenges. It is not exhaustive, but instead highlights some key areas where communities could benefit from the experiences of others. Each community knows their requirements best. Information will be updated as we receive information about more community best practices.

https://www.nationalguard.mil/

Memorandum on Providing Federal Support for Governors’ Use of the National Guard to Respond to COVID-19

Issued on: March 30, 2020

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MEMORANDUM FOR THE SECRETARY OF DEFENSE
THE SECRETARY OF HOMELAND SECURITY

SUBJECT:       Providing Federal Support for Governors’ Use of the National Guard to Respond to COVID-19

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5207 (the “Stafford Act”), and section 502 of title 32, United States Code, it is hereby ordered as follows:

Section 1.  Policy.  It is the policy of the United States to take measures to assist State Governors under the Stafford Act in their responses to all threats and hazards to the American people in their respective States and territories.  Considering the profound and unique public health risks posed by the ongoing outbreak of COVID-19, the disease caused by the novel (new) coronavirus known as SARS-CoV-2 (“the virus”), the need for close cooperation and mutual assistance between the Federal Government and the States is greater than at any time in recent history.  In recognizing this serious public health risk, I noted that on March 11, 2020, the World Health Organization announced that the COVID-19 outbreak can be characterized as a pandemic.  On March 13, 2020, I declared a national emergency recognizing the threat that SARS-CoV-2 poses to the Nation’s healthcare systems.  I also determined that same day that the COVID-19 outbreak constituted an emergency, of nationwide scope, pursuant to section 501(b) of the Stafford Act (42 U.S.C. 5191(b)).  All States have activated their Emergency Operations Centers and are working to fight the spread of the virus and attend to those who have symptoms or who are already infected with COVID-19.  To provide maximum support to the Governors of the States of Connecticut, Illinois, and Michigan as they make decisions about the responses required to address local conditions in each of their respective States and as they request Federal support under the Stafford Act, I am taking the actions set forth in sections 2 and 3 of this memorandum:

Sec. 2.  One Hundred Percent Federal Cost Share.  To maximize assistance to the Governors of the States of Connecticut, Illinois, and Michigan to facilitate Federal support with respect to the use of National Guard units under State control, I am directing the Federal Emergency Management Agency (FEMA) of the Department of Homeland Security to fund 100 percent of the emergency assistance activities associated with preventing, mitigating, and responding to the threat to public health and safety posed by the virus that these States undertake using their National Guard forces, as authorized by sections 403 (42 U.S.C. 5170b) and 503 (42 U.S.C. 5193) of the Stafford Act.

Sec. 3.  Support of Operations or Missions to Prevent and Respond to the Spread of COVID-19.  I am directing the Secretary of Defense, to the maximum extent feasible and consistent with mission requirements (including geographic proximity), to request pursuant to 32 U.S.C. 502(f) that the Governors of the States of Connecticut, Illinois, Massachusetts, and Michigan order National Guard forces to perform duty to fulfill mission assignments, on a fully reimbursable basis, that FEMA issues to the Department of Defense for the purpose of supporting their respective State and local emergency assistance efforts under the Stafford Act.

Sec. 4.  Termination.  The 100 percent Federal cost share provided for in this memorandum shall terminate 30 days from the date of this memorandum.

Sec. 5.  General Provisions.  (a)  Nothing in this memorandum shall be construed to impair or otherwise affect:

(i)   the authority granted by law to an executive department or agency, or the head thereof; or

(ii)  the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b)  This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c)  This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

(d)  The Secretary of Defense is authorized and directed to publish this memorandum in the Federal Register.

DONALD J. TRUMP


https://mwi.usma.edu/military-pandemic-explainer-national-guards-role-covid-19-response/

National Guard units are now involved in the response to the COVID-19 outbreak in every jurisdiction that has them—all fifty states, Washington, DC, and three US territories. In a growing number of these, these forces have transitioned to a Title 32 status to continue to provide support to their individual states. What does all of this mean? And more broadly, just how can the military be used during the pandemic response?

The first pillar of the National Security Strategy devotes an entire section to combating biothreats and pandemics and lays out priority actions including the implementation of “public health containment measures.” The National Guard is uniquely postured for this type of national-security threat and provides a range of capabilities to support civil authorities. A better understanding of the laws and authorities regarding the employment of the military during domestic disasters provides the best picture as to how the Guard might be used during the COVID-19 pandemic.

US Military Operating on Domestic Soil: A Very Brief History

Since the Reconstruction period in the late 1860s, the Army has supported civil authorities on domestic soil. However, extensive use of the Army during Reconstruction by President Ulysses Grant forced Congress to pass the Posse Comitatus Act of 1878, restricting the federal government from interfering in the internal affairs of states. The Posse Comitatus Act has become an important point of separation between federal and state authorities concerning specific responsibilities during large-scale disaster events that require military support. One of the key aspects of Posse Comitatus is that it restricts the federal government from employing the military to conduct law-enforcement activities in the United States. The National Guard, however, unless federalized, is not restricted by Posse Comitatus because the Guard remains under the control of each state’s governor.

In early 2005, the Bush administration introduced Homeland Security Presidential Directive 5, which led to the development of a National Response Plan (NRP). The new NRP was supposed to provide swift delivery of federal support while allowing a response to be handled at the lowest level possible. Hurricane Katrina illuminated several problems with the NRP and in 2008 the NRP was redesigned as the National Response Framework (more on that later).

When it comes to providing military support to civil authorities during domestic disasters, the National Guard is well suited to provide that support, especially considering the requirements of the National Response Framework. The Guard can be activated under State Active Duty, Title 32 full-time National Guard duty, or Title 10 active-duty status.

Title 10

Title 10 active-duty status is the most unlikely status for deploying the National Guard during a crisis, but it is important to understand why. Title 10 status federalizes the National Guard and effectively takes the Guard away from governors’ control, placing them in the same category as all active-duty military. This severely limits what the Guard can do and the duties its members can perform. A Title 10 activation of the Guard just doesn’t make sense in most domestic response situations because it would require activation of all members of a Guard unit, which is particularly problematic when you consider that many of those Guardsmen also have civilian jobs as local first responders (police, firefighters, paramedics, etc.). If the federal government were to activate units in a Title 10 status, this would potentially devastate local and state response efforts by pulling first responders away from the frontlines.

More than six hundred New York Police Department officers have tested positive for COVID-19—a number surely to continue growing. It would not be a sound decision to pull away even more first responders from high-risk areas already suffering from a police force under pressure. A better use of the National Guard in this case, would be to supplement the civilian police force with trained Military Police units. But even then, those soldiers would likely perform duties such as traffic control, transportation, and protection of infrastructure (like airport security). This would allow the local first responders to focus on filling the gaps left by those who may be out sick. This type of response effort would likely not be conducted under a federalized (Title 10) response, however, due to the Posse Comitatus restrictions noted above.

State Active Duty

Under a State Active Duty (SAD) status, the National Guard response is fully controlled and funded by a state’s governor. This type of response is the most widely used, and as of this writing represents the status of activated National Guard personnel in most states where they are being employed for the COVID-19 response. Each individual state’s statutes determine funding and employment of Guard resources through SAD. For these reasons, this is the most flexible status and may look different from state to state. One key aspect of this status is that the Posse Comitatus Act does not apply, allowing the National Guard to perform law-enforcement duties. Another key aspect of SAD is that unit commanders can usually tailor the force that is activated to allow first responders to remain employed in their primary job. This is extremely helpful when states make decisions to activate units to support a local domestic response. By allowing Guardsmen that are also first responders to remain in those critical roles, including police, firefighters, nurses, and paramedics, the state can add to rather than take away from the overall response.

Title 32

The third type of status available for employment of the Guard is activation under Title 32 full-time National Guard duty. This status is unique in that it allows the governor to order National Guard members to full-time duty to conduct homeland-defense activities but remain under the state’s chain of command. A key aspect of Title 32 status is that it is funded by the federal government, therefore pay and benefits are equal to those of the active-duty military. This duty status was used during the 9/11 response, when Guard units were placed on airport-security missions, allowing them to conduct a vital homeland-defense mission while remaining under the command and control of their individual states. This is also the newly approved status for National Guardsmen supporting the COVID-19 response in at least eight states, along with those in Guam and Puerto Rico (a number which will likely increase). The decision to transfer National Guard units from SAD to Title 32 status usually comes when a state’s Guardsmen have been on duty for several weeks, exhausting the state’s funding for SAD duty, or when multiple state National Guard units are deployed to a single location. For example, in New Orleans during the Hurricane Katrina response, multiple states’ National Guard units worked under one headquarters and were therefore transferred to a Title 32 full-time duty status early in the response to equalize pay and benefits.

A Framework for Response

Another important concept to understand how the military supports civil authorities during a domestic response is the National Response Framework. In 2008, the Department of Homeland Security created this framework to better partner with state governments to create tailored plans based on prevention and response requirements. Key to the National Response Framework is the bottom-up response approach that allows states to maintain the lead during a domestic response while providing a structured way to request additional resources. As the Federal Emergency Management Agency (FEMA) puts it, “response is most successful when it is locally executed, state managed, and federally supported.” During crises the National Response Framework is designed to enable local and state authorities to respond first, allowing each situation to be managed at the lowest level possible. Additionally, most domestic disaster responses can and should be handled at the state or local level, but those incidents that are large enough to require federal resources rely on a structured mechanism to ensure the best means of providing those capabilities.

The National Response Framework also relies on the Stafford Act to unlock federal funds and resources for use at the state level. Under the Stafford Act, states must request federal assistance to supplement shortfalls only once the state’s resources become overwhelmed. Once the declaration is made, a broad range of federal assistance is then available for use by the state. For example, if a state requires additional transportation assets to move healthcare products, the agency in charge of the response can make a request through FEMA. If FEMA deems that DoD is the best agency to provide that resource, then FEMA forwards the request to DoD. Upon approval, DoD can direct an active-duty unit to provide the transportation assets to the state. Usually, these federal resources will fall under the command and control of that state’s dual status commander that has the authority to direct both National Guard and active-duty military units (typically this is a National Guard officer authorized to serve in both federal and state statuses simultaneously, but can also be an active-duty officer). This provides for unity of effort and unity of command. By design, active-duty units are typically the last to respond and the first units out. The National Response Framework, therefore, allows the response to be scalable and adaptable, transferring responsibility for recovery back to the local level as soon as possible.

What Does This All Mean?

The COVID-19 pandemic and the ongoing response in the United States is unprecedented. Because of the scope of the crisis, there’s not a perfect historical example for comparison. In some recent domestic disaster responses, like the Hurricane Katrina or Hurricane Sandy responses, the affected area was limited to a few states. With COVID-19, every state is dealing with its own portion of the crisis. For this reason, and a variety of others, the National Guard remains best postured to support civil authorities.

The National Guard’s flexibility allows for the state and local leaders to tailor a response that is effective while protecting the rights of the citizens. Some states may use transportation assets in the Air National Guard to move bulk supplies; others might employ Guard medics to help run medical screening sites. Yet other states may employ their Guardsmen to conduct distribution of food and water to areas where at-risk individuals cannot venture out of their homes.

At the time of this writing, there are approximately 15,000 National Guard troops deployed in all fifty states, Puerto Rico, Guam, the US Virgin Islands, and Washington, DC, in response to the COVID-19 crisis. These units are all under the command and control of their individual states. Those numbers are likely to increase as states become more reliant on National Guard assets to meet a variety of needs. It is highly unlikely that a state would activate their National Guard to enforce a mandatory quarantine. With food and basic needs supply chains still functioning, that scenario just doesn’t make sense for this type of response. And it’s almost impossible under the Posse Comitatus Act for the federal government to do so, making that scenario even more unlikely.

A decision point for many states (or the National Guard Bureau) may be if or when to transition those responding units from a SAD status to Title 32 full-time status, like those in eight states and two territories currently. Key factors for this decision are the continued assessment of the length of time National Guard units are required and federal resources involved in the response, and the potential impacts on longer-term recovery. In most cases, state authorities seek to remove external support as quickly as possible once a local area can function without the need of state or federal resources.

Moving forward, we can expect that military units (almost exclusively National Guard) continue to be required to support the increased logistics and medical needs of each state. We can also expect that the military response in each state will continue to be led at the lowest level and will remain under the authority of state leadership. Whatever the military support requirements look like for each state, those units are there to provide surge support to civil authorities so the community can return to normal as quickly as possible. The fact that those Guardsmen are employed in support of civilian authorities ensures that they will be utilized with discretion and only for limited requirements.

Maj. Dennis R. Bittle is currently a student at the School of Advanced Military Studies at Fort Leavenworth, KS and a member of the Mississippi National Guard. He has multiple deployments to Iraq and Kuwait in support of Operation Iraqi Freedom and Operation Spartan Shield and has served in State Active Duty, Title 32, and Title 10 roles.

The views expressed are those of the author and do not reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.

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