ALBANY, N.Y. (NEXSTAR) — A bill introduced in the New York State Senate would clarify the governor’s authority over out-of-state National Guard deployments, in a move Democratic State Senator Andrew Gounardes called protection against a potential military invasion by fellow Americans. The legislation, introduced on Friday, would require any organized militia from another state, territory, or district to have permission from the governor of New York before entering the state for military duty.
S8533, sponsored by Gounardes, represents a concern that one state’s National Guard could be sent across state lines as President Trump makes “escalating threats” against states he views as uncooperative with his mass deportation agenda. But State Assembly Republican Leader Will Barclay criticized the proposal, arguing that Democrats are “outraged at the idea of utilizing federal resources to help stop criminal acts” and suggesting that the senator is merely chasing headlines.
If another state were to deploy to New York without authorization—violating the law—the New York State Attorney General could sue for an court order to stop it. The only exception would be if the militia has been federalized, “acting under the direct authority of the President of the United States,” because states can’t legally prevent the federalization of their own National Guards.
A president could bypass federalizing troops altogether by convincing a friendly governor to deploy across less friendly state lines. Twenty six Republican governors have committed to using their National Guard to carry out federal Immigration and Customs Enforcement enforcement.
The National Guard, a state-based military reserve for the U.S. Army and Air Force, is organized locally, funded by federal dollars, and typically reports directly to the governor of its state or territory. Soldiers usually have full-time civilian jobs while conducting drills one weekend a month and two weeks of training each year.
State leaders often call on them for domestic missions like COVID vaccine distribution, assisting with wildfires in places like Maui, Hawaii, and Los Angeles, and rescue operations during Hurricane Katrina and at the World Trade Center after September 11, 2001. This year, Governor Kathy Hochul deployed New York’s National Guard for a long-term engagement in the state’s prison system, covering for correction officers amid a shortage aggravated by their strike.
When a state governor calls up their own Guard for such state deployment, they’re in State Active Duty status. The National Guard is often deployed under Title 32 of the U.S. Code for duties like training or federal disaster response. In this status, the federal government pays costs like salaries and fuel, but the guardsmen remain under the orders of the state governor.
The federal Posse Comitatus Act prohibits using federal armed forces for traditional, non-military, domestic law enforcement. Were the president to federalize the Guard under the part of the U.S. Code that governs the federal military, Title 10, then state law doesn’t apply since federal troops go where the president sends them. But those troops can’t enforce state or federal laws under Posse Comitatus. They become part of the federal armed forces until they return to state control.
The Emergency Management Assistance Compact lets states voluntarily deploy their Guard into another state or states for missions not coordinated through federal channels. When one state lends its National Guard to another with that governor’s permission, the borrowing state pays the lending state back for any costs.
The nearly 150-year-old Posse Comitatus doesn’t apply under State Active Duty or Title 32. But it does have exceptions, the Insurrection Act notable among them for letting the president direct federal troops to conduct law enforcement during national emergencies.
By sending in troops without consent, a state sidesteps Posse Comitatus limits on federal armed forces from participating in civilian law enforcement. According to Gounardes’ office, this nonconsensual invasion could violate the state sovereignty doctrine of the Tenth Amendment, and the question “has yet to be tested in the courts.”
This would be a proactive step that follows the lead several other states that clarified this prohibition in their own laws or constitutions. Gounardes said the proposal is about more than one president, calling it a “commonsense way to ensure public safety, prevent interstate conflict, and safeguard our civil liberties in an era of growing autocracy and political violence.”
The bill aims to affirm the governor’s constitutional role as commander-in-chief of the state’s military forces. Supporters include the New York Working Families Party, Communication Workers of America District 1, Common Cause new York, Citizen Action of New York, 32BJ SEIU, and the Professional Staff Congress/CUNY, a union representing 30,000 academic workers from the City University of New York system. They’re concerned about the armed forces pushing a partisan agenda on residents, for example by using National Guard from another state to suppress non-violent protest.
James Davis, President of the Professional Staff Congress/CUNY, said the uninvited deployment of another state’s National Guard would be a “profoundly intrusive and destabilizing act.”
And Susan Lerner, executive director of Common Cause, said, “New Yorkers don’t need out-of-state troops telling us how to run our cities.”
But Barclay tied his criticism of the bill to New York’s own National Guard deployment to subways and prisons on State Active Duty. New York “was forced to put National Guard troops in subways and state prisons, in large part because Albany Democrats abandoned any commitment to public safety,” he said. “if you’re looking for decisive measures to crack down on crime and keep people safe, look elsewhere.”
Supporters point to states that have recently challenged perceived overreach under Posse Comitatus. For example, California won a legal victory after President Donald Trump deployed National Guard troops to Los Angeles in June 2025.
Still, it’s not clear whether the act, were it to become a law, would hold up to legal scrutiny. It may not ultimately be enforceable. In the 1900s, the U.S. Supreme court disagreed when states argued against the Reagan administration deploying the Guard to Honduras.
