Hochul Has No Authority to Block Trump From Taking Control of New York National Guard

Governor Kathy Hochul has signaled that she would strongly oppose any effort by former President Donald Trump to take over the New York National Guard as he did in California. But under current law, she has virtually no ability to stop him if he chooses to do so.

By default, governors serve as the commander-in-chief of their state National Guard units and can call on them for state-level needs such as disaster response, public safety support, or, in New York’s case, deploying troops to help patrol subways.

However, Guard members are also part of the U.S. National Guard, which means the president can federalize them at any time. Once federalized, the troops are no longer under state authority and governors lose the power to issue them orders.

This dynamic leaves Hochul with no legal ability to order New York National Guard troops to resist a federal call-up. Any service member who ignored federal commands would risk court martial and jeopardize their military career. Hochul’s only possible recourse would be a legal challenge after the fact, similar to what California has pursued against Trump’s earlier actions. However, that effort by Governor Gavin Newsom has thus far been unsuccessful.

The California lawsuit could set an important precedent. Trump federalized California’s Guard under Title 10 of U.S. law without using the Insurrection Act, which historically has allowed presidents to override states without their consent.

Title 10, however, contains language requiring orders to be “issued through the governors of the States,” something Trump did not do in California. California has argued this omission made his order illegal.

A ruling in Trump’s favor would broaden presidential authority to take over state Guards without governor involvement. But if California wins, it could restrict Trump’s ability to deploy the Guard in the same way in New York unless Hochul cooperates.

Still, Trump could bypass that obstacle by invoking the Insurrection Act if he wanted to.

Joseph Nunn, counsel at the Brennan Center for Justice’s Liberty and National Security Program, said governors have little leverage besides political maneuvering: “politics and posturing” might allow them to preempt a federal takeover by activating their Guard troops for state purposes first. He noted that Minnesota Governor Tim Walz did exactly that during the George Floyd protests.

Hochul has already used the New York National Guard to bolster safety in the subway system, something Trump and Republicans often highlight when criticizing crime. Despite pushback from progressives, she has insisted the deployment has helped reduce crime by deterring offenders.

Hochul also drew a sharp line between her own policies and Trump’s actions saying this week that her use of Guard troops is “wildly different” from Trump’s “abuse of power” in California and Washington, D.C.

Hochul Has No Authority to Block Trump From Taking Control of New York National Guard