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Reestablishing Florida’s State Guard Won’t Give DeSantis a Private Army

The governor’s move signals a worrying escalation of red-state hostility toward Washington. But it doesn’t pose the threat that opponents fear.

Last Updated: December 15, 2021
Published: December 14, 2021

This article first appeared at Just Secur­ity

Last Thursday, Flor­ida Governor Ron DeSantis announced that he wants to rees­tab­lish the Flor­ida State Guard, the state’s defunct defense force that was active between 1941 and 1947. He argued that this force would enhance the state govern­ment’s flex­ib­il­ity and abil­ity to respond to crises, saying that, unlike the Flor­ida National Guard, it would “not [be] encumbered by the federal govern­ment.” In response, prom­in­ent Flor­ida Demo­crats soun­ded alarm bells: Congress­man and former-Governor Charlie Crist tweeted that “No Governor should have his own hand­picked secret police,” while State Senator Annette Taddeo called DeSantis a “wannabe dictator trying to make his move for his own vigil­ante mili­tia like we’ve seen in Cuba.”

As a polit­ical matter, DeSantis’s move is worri­some, signal­ing an escal­a­tion of red states’ belli­cose atti­tude toward the federal govern­ment under Pres­id­ent Joe Biden. In prac­tice, though, what DeSantis is propos­ing is unlikely to pose the threat that his oppon­ents fear: that of a power­ful, private state army that can oper­ate as a kind of National Guard free from federal control.

The Limits of a State Defense Force

For starters, a “state defense force” — also known as a state milit­ary, state milit­ary force, state mili­tia, state milit­ary reserve, or, in Flor­id­a’s case, a state guard — is not a new or unusual concept. Both state defense forces and the National Guard are modern versions of the “Mili­tia” contem­plated by the Consti­tu­tion. State defense forces are author­ized by Congress under 32 U.S.C. § 109. Twenty-two states, includ­ing Cali­for­nia, Texas, and New York, and the Common­wealth of Puerto Rico currently main­tain state defense forces, and many more states have laws that allow for their creation.

In prac­tice, state defense forces tend to be small, auxil­i­ary forces trained in special­ized areas such as search and rescue oper­a­tions and used to support their states’ National Guard. The defense force DeSantis has in mind is no excep­tion. He is call­ing for a force of 200 volun­teers and asking for $3.5 million from the state legis­lature to train and equip them. The Flor­ida National Guard, by contrast, consists of nearly 12,000 milit­ary person­nel, employs an addi­tional 450 civil­ians, and receives more than $454 million in federal funds and about $18 million in state fund­ing annu­ally.

There is thus little risk of a state defense force serving as a signi­fic­ant coun­ter­weight to the feder­ally-regu­lated National Guard. Nor could it some­how replace the Guard; under 32 U.S.C § 104(f), states cannot disband their National Guard without the pres­id­ent’s consent or even reduce their Guard’s strength below the minimum set by the pres­id­ent.

Federal Control Is Not Off the Table

Moreover, if DeSantis is seek­ing a milit­ary force that reports only to him and is entirely free from federal direc­tion, a state defense force may not give him what he’s look­ing for. True, state defense forces, unlike the National Guard, are strictly state entit­ies. They are not subject to the train­ing require­ments and other federal regu­la­tions that govern the National Guard. State defense forces are also barred from receiv­ing federal fund­ing, and 32 U.S.C. § 109(c) provides that they “may not be called, ordered, or draf­ted into the armed forces.”

The Supreme Court, however, has cautioned against read­ing too much into Section 109’s restric­tion limit­ing feder­al­iz­a­tion of state defense forces. In the 1990 case Perpich v. Depart­ment of Defense, the Court noted that “the immunity of those forces from impress­ment into the national service appears — if indeed they have any such immunity — to be the consequence of a purely stat­utory choice.” In other words, Perpich indic­ates that Congress could enact legis­la­tion to make state defense forces subject to feder­al­iz­a­tion or even rescind their author­iz­a­tion entirely — although success­fully passing such a law would not be without its chal­lenges, as recent legis­lat­ive grid­locks have shown.

In addi­tion, the Court sugges­ted — albeit in dicta — that under current law, state defense forces might be subject to federal control in at least one circum­stance. While acknow­ledging that state defense forces cannot be “feder­al­ized” in the sense that term is usually under­stood, the Court explained that “it is nonethe­less possible that they are subject to call under [the Insur­rec­tion Act], which distin­guish[es] the ‘mili­tia’ from the ‘armed forces,’ and which appear[s] to subject all portions of the ‘mili­tia’ — organ­ized or not — to call if needed for the purposes specified in the Mili­tia Clauses.”

This possib­il­ity suggests that state defense forces oper­ate quite differ­ently from National Guard forces. As Perpich made clear, when National Guard troops are on active duty, they must be wear­ing one of two differ­ent hats. They have either been called into federal service, in which case they are tempor­ar­ily members of the federal armed forces just like any Soldier or Airman in the Army or Air Force, or they have not, in which case they are state officers and members of their state or territ­ory’s Guard unit. They can never wear both hats at the same time.

When it comes to state defense forces, however, the Court in Perpich seemed to indic­ate that a differ­ent regime may apply. The Court sugges­ted that the Insur­rec­tion Act allows the pres­id­ent to take control of the “Mili­tia,” broadly construed, and use it for the two purposes from the First Mili­tia Clause that the Insur­rec­tion Act refers to — namely, execut­ing the laws of the Union and suppress­ing insur­rec­tions — and to do so without “feder­al­iz­ing” these mili­tia forces. Under this view, Section 109(c) merely exempts state defense forces from being tempor­ar­ily incor­por­ated into the federal milit­ary, but it does not relieve them from being called up by the pres­id­ent as “Mili­tia.” In Perpich’s terms, it appears that state defense forces may be placed under pres­id­en­tial control without exchan­ging their state hat for a federal one.

This inter­pret­a­tion is consist­ent with the history of the Insur­rec­tion Act and of the “Mili­tia” itself. The present-day Insur­rec­tion Act can be traced all the way to the Call­ing Forth Act of 1792, and it has not been substant­ively amended since the Ku Klux Klan Act of 1871. By contrast, the “National Guard” has exis­ted since 1903, and the current frame­work of joint federal-state control over the Guard was not estab­lished until 1933. Before the advent of this system, the National Guard (and the earlier state mili­tias) were purely state entit­ies, like today’s state defense forces. Yet there is no doubt that they could be and often were called up under the Insur­rec­tion Act and used for federal missions under pres­id­en­tial control.

In sum, state defense forces are not in prac­tice, and prob­ably could never be, private armies that governors can use to enforce their will free from federal inter­ven­tion. As a func­tional matter, indi­vidual states simply cannot afford to main­tain signi­fic­ant milit­ary forces without federal fund­ing. More import­ant, state defense forces exist through the permis­sion of Congress, and a governor who sought to misuse their state’s defense forces could see command of those troops taken away by a pres­id­ent who invoked the Insur­rec­tion Act.