As the human toll of COVID-19 worsens, it is understandable that leaders are looking for ways to harness the resources of the U.S. military to help fight the pandemic. Unfortunately, one state has seized on a terrible idea—deploying its National Guard to conduct house-to-house searches for visitors from New York.
There is much that our armed forces can do to help right now. In fact, they are already doing a great deal. The military medical system has surged to provide additional hospital capacity in the areas worst affected by COVID-19, with Navy hospital ships deployed to New York and Los Angeles, Army field hospitals operating in Manhattan, and Air Force aircraft transporting critical cargo to support testing and treatment. In the coming weeks, the U.S. military undoubtedly will contribute even more much-needed medical and logistical support to civilian authorities.
It is understandable that some would like the military—one of the United States’ most trusted institutions—to do more. It is equally understandable that state governors, confronting a generational crisis, want to leverage every asset available to them, including the National Guard. But although the National Guard can perform important tasks to support public health efforts, it should not be conducting domestic law enforcement.
Most of the discussion of this question has focused on whether governors have the legal authority to use the Guard to enforce quarantine or stay-at-home orders. But even assuming that the governors may use the Guard in this way, they should not.
In practical terms, the National Guard forces available to the states are U.S. Army soldiers (there are, of course, Air National Guards, too, but they have fewer personnel and are focused on flying). Although the Title 10 (federal active duty) vs. Title 32 (state active duty) distinction has legal and fiscal significance, it is largely invisible to the public. Even when performing state missions, National Guardsmen wear U.S. Army uniforms and insignia and carry U.S. Army equipment. To the average citizen, they are indistinguishable from the 82nd Airborne Division.
National Guard soldiers lack the tools and training with which civilian police give effect to their authority. When a citizen fails to comply with an order, a trained police officer can employ nonlethal tools (such as unarmed defensive tactics, pepper spray, baton, or electroshock weapon) to achieve compliance. National Guardsmen lack police training and equipment, leaving them with essentially two choices: shoot the resister or do nothing. This is not effective law enforcement.
Moreover, deploying uniformed soldiers to U.S. streets may reinforce some Americans’ fears of impending martial law. For years, a small number of Americans have believed that the U.S. military plans to occupy the country, disarm gun owners, and suspend civil liberties. One need not believe such theories—to be clear, I do not—to acknowledge that they influence people’s behavior. Indeed, it appears that at least one person has already seen a sinister hand behind the presence of a hospital ship in the Port of Los Angeles. And that was a hospital ship; as one commentator recently observed, there’s little “that would do more to stir public panic than members of the military going door-to-door with police[.]”
By all means, keep the medical and logistics support coming. But the National Guard—and the rest of the U.S. military—should stay out of domestic law enforcement.
