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.