No, Hochul can’t stop Trump from taking control of the state National Guard

Gov. Kathy Hochul has made it clear that she wouldn't take too kindly to President Donald Trump taking over the New York National Guard like he did in California. But as it stands, Hochul has no legal pathway to prevent such a move and only limited options to dissuade the president from exercising that authority. 

Normally, a state’s governor serves as the commander-in-chief of their National Guard force. They can activate members for purposes like responding to natural disasters, assisting with pandemic response and, in the case of New York, providing additional security on public transit. But National Guard troops don't only belong to the state-level military body. Every member is at the same time part of the U.S. National Guard, which is under the control of the president. When a president federalizes a state’s National Guard, the governor immediately loses their authority over members. The president does not simply borrow the National Guard that remains under the control of the governor – members literally no longer belong to the state during their period of federalization. The governor has no more power to issue commands to them than any other civilian does. 

This means that Hochul could not preemptively order the New York National Guard to ignore a deployment from Trump if they get federalized, nor would she have any standing to attempt to countermand any presidential orders. Any Guard members who don't follow Trump's commands after federalization would risk court martial and their future in the armed services. From a legal perspective, Hochul's only avenue to oppose a federal takeover of the National Guard would be to argue in court that the action ran afoul of the law after the fact, as California has done. 

The outcome of that California case could somewhat hamstring Trump’s ability to federalize the National Guard, though not significantly. Trump federalized the National Guard in California through a provision in Title 10 of U.S. law, but he specifically did not invoke the Insurrection Act, as presidents in the past have. That difference matters. While the Insurrection Act permits the president to call into federal service the National Guard without state permission, the Title 10 provision contains a requirement that orders must be “issued through the governors of the States,” which Trump did not do in California. 

Lawyers for California argued, among other things, that the federalization was illegal because Trump failed to get the cooperation of the governor. This is a novel legal challenge to define that particular provision, and a favorable court ruling for Trump would stand to expand the president’s authority over the National Guard and to deploy federal troops domestically. On the other hand, a ruling in favor of California could create a consequential precedent that would make it more difficult for Trump to attempt to call up the National Guard in the same way in New York without Hochul’s permission. 

But even if the court finds that he indeed needed state approval to federalize the National Guard under Title 10 alone, Trump could always fall back on the Insurrection Act if he truly wanted to federalize the National Guard in New York or other states.

According to Joseph Nunn, counsel at the Brennan Center for Justice’s Liberty and National Security Program, governors could try “politics and posturing” like deploying their National Guard for the same purposes before the president to keep troops under state control. He used Minnesota Gov. Tim Walz’s decision to send in the National Guard in response to George Floyd protests as an example of this approach. The move drew sharp criticism from many on the left, but Trump praised Walz at the time and did not attempt to take control of the Guard himself.

Hochul has already mobilized the New York National Guard in order to help combat crime on the subway, a frequent talking point for the Trump administration and Republicans. Despite backlash from progressives, the governor has maintained that she made the right move and that the Guard presence contributed to recent reductions in crime thanks to a deterrent effect. But Hochul said this week that her use of the National Guard is “wildly different” from Trump’s “abuse of power” in California and Washington, D.C.