The Takeaway: Answering legal questions around potential National Guard deployment

As a potential National Guard deployment to Illinois looms, residents may have legal questions about the action.

To help answer those questions, NBC Chicago’s Alex Maragos spoke with a legal expert and the former head of the Illinois National Guard.

Joe Ferguson is the Co-Director of National Security and Civil Rights Program at Loyola University Law School, while Maj. Gen. Rich Hayes spent 34 years in the Illinois Army National Guard and served as the 39^th Adjutant General for the State of Illinois.

You can see the full interview here, and see questions and answers below.

 Can members of the Illinois National Guard refuse an order from the President if they think it’s illegal?

“They can object to it, but if you are found to have failed to abide by a legal order, guess what? You’re going to be court martialed,” said Hayes.

Ferguson explains the legal precedent set in Martin v. Mott (1825), which is a case that went all the way to the U.S. Supreme Court. The case focused on a member of the New York militia who did not agree with the president’s decision to call in the militia and refused to report.

“The Supreme Court said the discretion is left entirely with the president, regardless of what you think. That’s that and you have to follow the order,” Ferguson said.

“[The National Guard] has to execute it until the courts determine it’s not proper,” said Hayes

How long does it take to activate the National Guard?

According to Hayes, it would “take about 96 hours at most really in this type of situation.” That’s the equivalent of four days.

Hayes said the National Guard has contingency plans for all kinds of operations they may be called to perform, and mobilization depends on the request outlined in the order.

How is an order given to federalize the Illinois National Guard?

“The order would come from the Department of Defense to the National Guard Bureau in the Pentagon and it’d be transmitted to the governor’s office through the adjutant general. (The) governor would see it, (but) he can’t stop it,” Hayes said.

Hayes and Ferguson said governors can call in their state’s national guard at any time for a variety of reasons, but orders coming from the President require  more narrow circumstances.

“Under [10 U.S. code 12406], that’s the authority which the president appears to leaning…which he basically says, ‘I’ve got an emergency here’” said Hayes. “He’s justifying in his own right and he’s sending it down. As far as the military is concerned, there’s a lawyer at all those levels before that order ever gets down here. That doesn’t stop our lawyers in the Illinois National Guard. We have Judge Advocate Generals from reviewing it as well and advising a guy like me to saying, ‘Hey, what do you think? Is this legal?’ And then even with that, I would be the final adjudicator of it.”

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