Sources and Limitations of Command Authority over the Army Reserve Component

By Major Amanda M. Baylor

Article published on: January 1, 2024 in the Army Lawyer issue 2 2024 Edition

Read Time: < 27 mins

MAJ Amanda B. Baylor, USAR SVC Deputy Program Manager, briefs attendees at the active/Reserve component integrated SVC Regional Training held 5-7 December 2023 at the USARLC in Gaithersburg, MD. In this photo, MAJ Baylor specifically addresses active component SVCs and paralegals about the uniqueness of the USAR (especially part-time support) within the context of the SVC Program. (Credit: 1LT Amber Lamb, USARLC)

The joint force staff judge advocate (SJA) has a pivotal role in assisting the operational planners to anticipate, understand, and pursue necessary authorities. Joint force commanders rely heavily on their legal advisors for accurate, timely advice concerning authorities and limits that impact planning and execution. Their recommendations also help shape the commander’s guidance and intent.¹

The total U.S. Army is organized into the Regular Army and Reserve component, which is comprised of the Army National Guard of the United States (ARNG) and the U.S. Army Reserve (Reserve).² Across all components, the Army chain of command consists of commanders who exercise discrete authority.³ Command authority is “the authority a commander in the [Army] lawfully exercises over subordinates by virtue of rank or assignment.”⁴ Command authority for the Reserve component is different from command authority for the Regular Army. Recently, the frequency and duration of Reserve component activations have increased exponentially;⁵ commanders must address important issues unique to this operational force multiplier.

Despite the increases in frequency and duration of Reserve component activations, some commanders treat their Reserve and ARNG Soldiers just like their Regular Army counterparts.⁶ Commanders must acknowledge that there are differences between these populations both in the source of the command authority over them and in the unique circumstances that come with leading these Soldiers effectively. Whether limiting or permissive, command authority outlines the type of action(s) commanders may take and how they may act.⁷ Although commanders have broad authority to timely meet their significant responsibilities, they must know of and operate within specific limitations on the various mechanisms through which these powers are conferred. Operating within the bounds of command authority is woven into the very fabric of our national defense strategy; leaders who assume command must understand and appreciate that disregarding or misinterpreting applicable authorities can lead to injury, financial mistakes, and even criminal proceedings.⁸

The proper exercise of command authority expands well beyond formal authority in law or regulation,⁹ where duties include both express and inherent command and control over subordinates.¹⁰ Command and control is, therefore, the conduit through which commanders exercise their authority and direction over Soldiers assigned and attached to their command¹¹ and over assigned resources and equipment.¹² Commanders must plan and effectively use all available resources to complete their missions through the “employment of, organizing, directing, coordinating, and controlling military forces” while ensuring their “health, welfare, morale, and discipline.”¹³ No other military role matches the totality of express command duties coupled with ethical and legal obligations inherent in command.¹⁴

Because commanders cannot rely solely on express authority given through written or oral instruction, they must know and understand what decisions and actions are within their discretion (implied authority). They must know of any restrictions or withholdings that impact their authority to act to determine whether they should request new or additional authority through their technical chain.¹⁵ This requires a fundamental understanding of two separate yet distinct chains of command authority as it flows from the U.S. Constitution to the President and to Congress.

This article explains the Constitution’s grant of broad military authority to the President to serve as “Commander in Chief”¹⁶ and to Congress to “make rules for the Government and Regulation of the land and naval Forces,”¹⁷ as well as delegated command authority from this highest level. Through law codified in the U.S. Code, command authority flows from the President through the Department of Defense’s (DoD) Service Secretaries, such as the Secretary of the Army (SECARMY), down to commanders of each Service and through multiple command echelons (“theater army, corps, division, brigade, battalion, and company”).¹⁸ Combatant commands (COCOMs) are key components of this delegation chain, as combatant commanders (CCDRs) exercise command authority over assigned Reserve component members mobilized to Federal active duty.¹⁹

Lastly, this article explores how decentralized mission command requires commanders to exercise inherent command authority. It highlights key differences between Reserve component and Regular Army duty statuses and identifies sources of Reserve component²⁰ command authority. It discusses how the ARNG operates primarily under title 32 U.S. Code authority and the Reserve operates under title 10 U.S. Code authority. It also explains how National Guard Soldiers in a title 10 status outside the United States operate under CCDR command authority separate from a title 32 chain of command. Finally, it addresses key differences in applicable law, subject to duty status, with which commanders should be familiar.

This article will aid senior judge advocates (JAs) (such as staff judge advocates) in understanding important challenges and limitations Regular Army and Reserve component commanders face while executing their command authority. Although JAs provide commanders with legal advice on a multitude of issues unique to the Reserve component,²¹ “the judgment of the commander is paramount.”²² Accordingly, JAs must advise commanders to exercise their inherent command authority and operate among the gray space within black-and-white authority to make timely decisions and take effective action.

BG Gerald R. Krimbill, Commanding General, U.S. Army Reserve Legal Command (USARLC), addresses special victims’ counsel (SVCs) and SVC paralegals attending the first active/Reserve component integrated SVC Regional Training held 5-7 December 2023 at the USARLC in Gaithersburg, MD. (Credit: 1LT Amber Lamb, USARLC)

Background

Command Authority under the U.S. Constitution
The Constitution grants Congress legislative power “to declare War,” “raise and support Armies,” “provide and maintain a Navy,” “make Rules for the Government and Regulation of the land and naval Forces,” call forth “the Militia to execute the Laws of the Union, suppress Insurrections, and repel Invasions,” and “provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States.”²³ The Uniform Code of Military Justice (UCMJ) and Servicemembers Civil Relief Act²⁴ (SCRA) are primary examples of legislation Congress passed with its constitutional powers to regulate military operations. Congress can also legislate limits on the President’s authority to conduct military operations, creating a fluid balance of war powers between Congress and the President.²⁵ Thus, the line of demarcation between the legislative and executive branches’ constitutional authority is not absolute. For example, Congress can limit funding to control the President’s ability to carry out military operations.²⁶

The Constitution grants the President executive power to serve as the Commander in Chief of the U.S. Army and Navy as well as militia “when called into the actual Service of the United States.”²⁷ It also grants executive authority to make treaties, provided two-thirds of the Senate concurs and ratifies them.²⁸ Congress cannot match the President’s broad military authority where the President specifically exercises command authority over the U.S. Armed Forces.²⁹ The President can manage the executive branch’s operations,³⁰ including the Army’s command authority, by issuing executive orders (EOs). This is a critical separation of power between the executive branch and the legislative branch, as command authority requires both a “grant of authority [(power in law)] and necessary freedom of action.”³¹

The President’s authority and freedom of action to pursue military operations includes “inherent or implied power” that does not always require congressional authorization (unless a statutory bar exists).³² Executive order legal and regulatory authorities are vested in law (such as the UCMJ, DoD directives, and Army regulations) and enhanced through “specific powers granted under the authority of immediate commanders.”³³ As such, EOs are directives that help define and confer military command authority as a source of law that does not require congressional legislation.³⁴

Through EOs, presidential power has expanded over time; Commanders in Chief have influenced both foreign and domestic affairs over which the DoD has exercised significant command authority—all without asking for congressional approval or encountering restrictions by Congress.³⁵ Because the Constitution limits Congress’s ability to regulate or restrict the President’s constitutional command authority, Congress should have less control over how the President employs executive authority.³⁶ Without this separation of powers, Congress could fundamentally hinder the President’s ability to carry out the duties of our Nation’s Commander in Chief. This could create unnecessary confusion over sources of command authority over the Armed Forces and cause leadership concerns to grow.

Through its power to raise and support armies and declare war, Congress cannot enact legislation that interferes with command authority over forces and military campaigns; that power belongs to the President.³⁷ Absent any court rulings on point, it is unclear whether Congress can regulate military deployments without overstepping presidential authority.³⁸ In March 2011, President Obama directed U.S. Armed Forces overseas to conduct limited military operations to aid United Nation member states in protecting civilians from attacks.³⁹ Afterward, he reported to Congress that he had “constitutional authority, as Commander in Chief and Chief Executive and pursuant to his foreign affairs powers” to act without legislative authorization.⁴⁰

Other Presidents have sent troops into battle without Congress’s official declaration of war.⁴¹ Such action underscores the importance of establishing command authority on the executive side of a clear line of demarcation.⁴² Sometimes, this line between congressional and presidential war power is blurred.⁴³ Nonetheless, it remains clear, and Congress and the U.S. Supreme Court agree with the executive, that not all presidential and congressional military authority is retained at the top.

Delegated Command Authority
Military authority within the executive and legislative branches does not exclusively rest with the President and Congress, respectively.⁴⁴ Both branches have delegated command authority in some respect.⁴⁵ Just as military powers flow from both the legislative and executive branches, command authority originates from several sources, including law, regulation, and policy.⁴⁶ By law, military functions are vested in the President and are delegable to the Secretary of Defense (SECDEF).⁴⁷ By EO, President George H.W. Bush delegated to the SECDEF complete military authority to assign commanders.⁴⁸ Consequently, most military power and authority flows from the President, as Commander in Chief, through the SECDEF, to COCOMs and the Services, and down to subordinate commands.⁴⁹ The President and SECDEF exercise command authority over the Army through two separate chain-of-command branches.⁵⁰

Command authority flows through two chains of command among all Army components: the operational chain of command and the administrative chain of command.⁵¹ Operational control (OPCON) of forces is the authority to “perform those functions of command over subordinate forces involving organizing and employing commands and forces, assigning tasks, designating objectives, and giving authoritative direction necessary to accomplish the mission.”⁵² Operational control for missions flows from the President to SECDEF and down to the CCDRs who exercise COCOM authority over missions and forces that SECDEF assigns to them.⁵³ Specific to the Army command structure, the chain of command flows through one of three major commands (four Army Commands, eleven Army Service Components Commands that support COCOMS, and thirteen Direct Reporting Units) down to subordinate commanders.⁵⁴ The President assigns CCDRs and approves SECDEF’s assigned missions and forces.⁵⁵ Upon consulting the Chairman of the Joint Chiefs of Staff (CJCS), SECDEF further delineates CCDRs’ authority to ensure they have the requisite authority to “exercise effective command over those commands and forces.”⁵⁶ As such, command authority over COCOMs for operational missions is extensive and includes assigning subordinate commanders their command functions.⁵⁷ In these assignments, however, CCDRs’ authority to issue orders is limited.

A COCOM’s authority is not wholly transferable; certain functions cannot be delegated, such as “giving authoritative direction over all aspects of military operations, joint training, and logistics necessary to accomplish the missions assigned to the command.”⁵⁸ As further discussed below, this is important because when the President mobilizes ARNG units to Federal active duty, they fall under COCOM authority (outside the title 32 ARNG command chain) over the theatre in which they operate.⁵⁹ Operational control, which can be delegated to subordinate commanders, is an integral component of the COCOM’s authority.⁶⁰ It includes the authority to perform command functions necessary to complete assigned missions but generally does not include “matters of administration, discipline, internal organization, or unit training,”⁶¹ otherwise known as administrative control (ADCON).⁶² Combatant commanders have ADCON authority to carry out their Federal statutory (title 10, U.S. Code) responsibilities for administration and support over subordinate units.⁶³ They can delegate ADCON authority to subordinate commanders but should document this in writing to avoid having their CCDR command authority usurped.⁶⁴

Within COCOMs, SECDEF manages Armed Forces and military operations across seven geographic combatant commands (GCCs) and four functional combatant commands with designated areas of responsibility.⁶⁵ The Secretary of Defense directs the Service Secretaries to assign or allocate military forces to GCCs and exercise certain command authority over their respective units and fill different Service component command roles (such as U.S. Army Central Command).⁶⁶ To prioritize their key role of planning and oversight, COCOM headquarters delegate authority to execute OPCON and tactical control (TACON) missions to Service component commands and subordinate commands.⁶⁷ Yet, only COCOM commanders have the authority to deploy forces from every Service.⁶⁸

Much like COCOMS combine forces across the different military departments for a joint war-fighting role, the Army combines its distinct troops among the Regular Army and Reserve component to provide a unified federalized force to which Federal command authority equally applies.⁶⁹ Just like CCDRs are responsible for total force structure integration, Regular Army commanders must integrate the Reserve component into its ranks operationally to “help meet both steady state peacetime engagement and contingency requirements of the [CCDRs] . . . at home and abroad.”⁷⁰ Because joint operations are generally conducted through decentralized execution,⁷¹ Regular Army commanders must understand that differences exist between Regular Army and Reserve component command authority.

Decentralized Command Authority
After the Civil War, American commanders began decentralizing command execution by using mission orders to achieve a desired end state.⁷² This developed into mission command authority, which is a type of ad hoc authority commanders have over “the conduct of military operations through decentralized execution based upon mission-type orders.”⁷³ It is best described as the “creative and skillful use of authority, instincts, intuition, and experience in decision-making and leadership to enhance operational effectiveness.”⁷⁴ Commanders use mission command to empower subordinates to make disciplined decisions through command and control, without a direct order, and accept the risk of interpreting commander’s intent.⁷⁵

Balancing delegation of authority against manageable risk requires trust, experience, and a solid understanding of command authorities.⁷⁶ This is critical, as commanders must always have a lawful mission (assigned duty and function) and authority.⁷⁷ They must know what their unit function and mission are and where their authority comes from. They cannot just say, for example, EO 12333⁷⁸ allows intelligence collection. They must trace their authority through orders (concept of operations, operations order, etc.).⁷⁹ Commanders must further balance express mission command with inherent command authority.⁸⁰ They do this through command and control, which gives commanders broad authority to manage all aspects of forces to accomplish the mission.⁸¹

Commanders have inherent authority to regulate good order and discipline and support the health, safety, and morale of troops.⁸² For Regular Army commanders, inherent command responsibility also includes providing “consultation and liaison with the ARNG and USAR to ensure interaction and synchronization among [Regular Army] and USAR concerning Family assistance and readiness issues.”⁸³ Judge advocates must advise commanders on express and inherent command authority, including all delegated authority, authority withheld, and authority to exercise discretion to ensure readiness, good order, and discipline. This will help achieve harmony across Army components, wherein some Soldiers have multiple duty statuses.

Commanders Must Be Aware of Reserve Component Roles and Duty Statuses

Reserve Component Command Authority (Title 32 versus Title 10 Status)
The Army National Guard primarily operates in a title 32, U.S. Code, duty status while the Reserve solely performs missions while in a title 10 status—just like the Regular Army.⁸⁴ The Regular Army and Army Reserve are always under the command and control of the President.⁸⁵ The Regular Army consists of full-time units ready to employ land power,⁸⁶ and it relies heavily on the Reserve component as a total force multiplier.⁸⁷ The Reserve provides half of the Army’s sustaining units and a good portion of mobilization capability.⁸⁸

The Reserve
The Army Reserve originated in the twentieth century from Congress’s constitutional authority “to raise and support Armies.”⁸⁹ Reserve component Soldiers receive the same initial basic and advanced training as the Regular Army.⁹⁰ After completing initial training, however, Reserve component Soldiers return to their civilian jobs (and lives) and conduct military duty and training one weekend a month and two weeks annually.⁹¹ The Reserve is under the military command and control of a three-star commander who has single, unified command authority both as the commanding general, U.S. Army Reserve Command (USARC), and the chief of the Army Reserve (CAR). While USARC is a direct reporting unit to the U.S. Forces Command, the CAR reports directly to the Secretary and Chief of Staff of the Army.⁹²

This dual mission ensures the Reserve achieves its purpose: to supplement the Regular Army and joint force in an operational role by providing “trained units and qualified persons available for active duty in the Armed Forces, in time of war or national emergency” and filling “the needs of the Armed Forces whenever more units and persons are needed.”⁹³ While the ARNG shares this same mission, it has a second unique mission: provide trained and equipped Soldiers and units to the states and territories to protect people and property.⁹⁴

The ARNG
The ARNG has the same unit structure and equipment as the Regular Army.⁹⁵ Yet, a key distinction between the ARNG and Regular Army, relevant to command authority, is their title 32 and title 10 status, respectively.⁹⁶ The ARNG originated from colonial-era militias, which predate the Constitution.⁹⁷ It is a dual-hatted institution wherein citizen-Soldiers are primarily mobilized by a state governor to active-duty status to perform a state military mission or, as discussed more below, are in a title 32 status with Federal pay and benefits.⁹⁸ Under state sovereignty, both statuses are under the command and control of the state governor,⁹⁹ who appoints an adjutant general (TAG)—a general officer—over each ARNG state and territory as its uniformed leader.¹⁰⁰ Each state or territory’s laws prescribe the TAG’s command authority and duties.¹⁰¹ This authority is frequently used to respond to domestic emergencies.¹⁰² The law provides Federal funding to the ARNG under state authority while decentralizing and leveraging its sovereignty to conduct domestic operations.¹⁰³

SVCs and SVC paralegals from all three Army components (active component, Army National Guard, and Army Reserve) take a break from their SVC Regional Training to pose for a group photo outside the USARLC in Gaithersburg, MD. (Credit: 1LT Amber Lamb, USARLC)

Separate and apart from the ARNG, state defense forces organized under 32 U.S.C. § 109(c) are generally a state guard or militia unit wearing military-type uniforms indistinguishable from standard Army uniforms.¹⁰⁴ Because militia members remain under the governor’s command authority, they are not ARNG forces and cannot be federalized.¹⁰⁵ However, under applicable state laws, governors can lawfully issue orders to state defense forces to conduct law enforcement missions.¹⁰⁶ Within all the types of military status, command authority is executed at all levels of command, to various degrees.¹⁰⁷

Title 32 is a “middle ground” status between state and Federal operations where, despite being paid with Federal funds at the President’s request, the ARNG is under the governor’s control.¹⁰⁸ However, command authority over the ARNG changes when units are lawfully federalized;¹⁰⁹ like Reserve forces, ARNG Soldiers can also be mobilized in a title 10 status to perform Federal active duty (such as Reserve component training or a Regular Army operational mission) under the sole command and control of the President and CCDRs by delegation.¹¹⁰ By statute, the President “shall prescribe regulations, and issue orders necessary to organize, discipline, and govern the National Guard” forces mobilized in this status.¹¹¹ This statutory grant of authority mirrors the authority in the second militia clause, which states that Congress shall “provide for organizing, arming, and disciplining[] the Militia, and for governing such Part of them as may be employed in the Service of the United States.”¹¹² These similarities and the unique balance of power between the executive and legislative branches were underscored in the recent debate over the Justice Department’s Office of Legal Counsel claims that the Constitution authorizes the President to order a military attack on another country, without congressional authorization, for self-defense of an imminent attack or other important but limited interests.¹¹³

Title 10 status is an important role for the Reserve component due to the increasing number of times the Federal Government has involuntarily activated it for contingency operations.¹¹⁴ There have been nine such activations since 1990, “including large-scale mobilizations for the Persian Gulf War (1990-1991) and the aftermath of the September 11, 2001, terrorist attacks (2001-present), as well as for Coronavirus Disease 2019 (COVID-19) pandemic response.”¹¹⁵ Yet command authority over Reserve component Soldiers on Federal missions is limited by its very nature (title 10, U.S. Code). For example, Federal military forces cannot assist law enforcement except in limited circumstances.¹¹⁶ Therefore, ARNG Soldiers participating in law enforcement missions in a title 32 status fall under a unique command authority.¹¹⁷

Dual-Status Commanders
The requisite command authority in this title 32 situation is achieved through the President and governor approving a dual-status commander (DSC) role, where the commanding military officer serves as both a state National Guard officer under the governor’s control and a Federal Army officer under the control of the President, SECDEF, and supported COCOM—all at the same time.¹¹⁸ This authority to simultaneously serve in a state and Federal status provides dual command authority over non-federalized National Guard forces and federalized forces through two chains of command.¹¹⁹ The commander of the U.S. Northern Command and the chief of the National Guard Bureau share joint management over DSCs.¹²⁰ The DSC command authority is specifically utilized to unify and support state and Federal forces responding to disasters and national events.¹²¹ To operate within state law prohibitions and limits of command authority within each state National Guard, each state is appointed a DSC to respond to situations that cross state lines.¹²² However, this structure (unique command authority) is lost in a deployed environment, where CCDRs only command Service members federalized in a title 10 status under the President’s chain of command.

Active and Reserve component attendees discuss their unique experiences during the integrated SVC Regional Training held 5-7 December 2023 at the USARLC in Gaithersburg, MD. In this photograph, CPT Aldavina DosSantos, Army SVC (XVIII Airborne Corps, Fort Liberty) (front-right) exchanges ideas with MAJ Keith A. McCarthy, USAR SVC Northeast regional manager (139th Legal Operations Detachment (LOD)) (left) and SFC Jessica F. Nolan, USAR SVC paralegal (139th LOD) (right). (Credit: 1LT Amber Lamb, USARLC)

In a Title 10 Status, the National Guard Operates under COCOM Authority
When mobilized solely to Federal active duty, such as Defense Support to Civil Authorities, ARNG Soldiers operate under the COCOM authority of CCDRs.¹²³ Under the Goldwater-Nichols Act, CCDRs were granted the control and authority under OPCON that the Services’ respective chains of command previously possessed.¹²⁴ By assigning all combat forces to unified CCDRs, the Goldwater-Nichols Act removed the Joint Chiefs of Staff from the operational chain of command.¹²⁵ While CCDRs have OPCON over Reservists, they must coordinate with ADCON commanders (e.g., the ARNG title 32 commander with whom they share ADCON responsibility) on all discipline issues. This is important because, since fiscal year 2014, the Services have been involuntarily activating Reservists to provide global support to COCOMS for planned missions.¹²⁶ ADCON is not part of the command relationship; therefore, discipline matters do not fall within operational missions under OPCON.¹²⁷

To support COCOMs, the President can involuntarily activate Reserve units for 365 or fewer consecutive days for operational missions to respond to “weapon[s] of mass destruction” or “a terrorist attack in the [U.S. resulting] in significant loss of life or property.”¹²⁸ Since September 11, 2001, “more than 420,000 Army Reserve Soldiers were mobilized. [As of 2022], nearly 8,000 Soldiers are deployed to [twenty-three] countries in direct support of [GCCs] ”¹²⁹ Sufficient Reserve component mobilizations under the Federal chain of command is important to CCDRs who rely heavily on the Reserve component to provide “combat ready resources”¹³⁰ and “build[] global partnerships” worldwide.¹³¹

Commanders Must Know the Key Differences in Law Applicable to Duty Status
One important limitation on command authority is the bar to using Federal active Service members for civilian law enforcement (domestic police force) and other domestic operations without express legal authority in accordance with the Posse Comitatus Act.¹³² However, the Posse Comitatus Act does not cover ARNG members in a title 32 status reporting to their governor.¹³³ Although the Posse Comitatus Act prevents the military from being “a threat to both democracy and personal liberty,”¹³⁴ statutory exceptions give the President command authority to direct Service members to suppress rebellion and civil rights violations.¹³⁵ Even though the DoD has established policy assigning responsibilities for defense support of civil authorities,¹³⁶ the courts have not determined whether the Constitution expressly grants or confers inherent “emergency authority” on military commanders to use Federal troops “to quell large-scale, unexpected civil disturbances” when “necessary” where presidential authorization is impossible.¹³⁷

Whether the Posse Comitatus Act is deemed a source of command authority or limitation depends on whether the governor ordered the support or the request as part of a larger Federal mission.¹³⁸ In 2020, the President asked governors to send ARNG members in a title 32 status (under their respective state’s command and control) into Washington D.C. to police protests.¹³⁹ In 2021, the President’s Acting Defense Secretary authorized thousands of ARNG members to secure the U.S. Capitol area and help ensure a “peaceful transition of power” to the President-elect.¹⁴⁰ This is an unconventional command authority not typically conferred on the President under the Posse Comitatus Act because, except for the Washington D.C. National Guard, the ARNG “generally operate under the command of their state or territorial governor” when not federalized.¹⁴¹ By contrast, when mobilized to active duty, command and control over ARNG members shifts to Federal commanders.¹⁴²

Falling under a federalized chain of command can expose Reserve component citizen-Soldiers to unique problems for which they are afforded protections under the Uniformed Services Employment and Reemployment Rights Act¹⁴³ and SCRA.¹⁴⁴ These laws, while applicable to duty status, do not directly affect command authority over federalized Service members. However, the issues they are designed to address can negatively impact Reserve component members’ morale and overall effectiveness as a force multiplier. Therefore, inherent command authority includes the responsibility to manage problems these Soldiers encounter because of their dual status. Judge advocates can help commanders ensure Soldiers receive the assistance they need to protect their civil rights and balance their Federal military duty with their civilian lives. For example, a comprehensive RAND study found that the four most reported issues Reserve component Families encounter post deployment are the Service member’s “mental or emotional health, health care or medical issues, . . . civilian employment, and relationship with a spouse or partner.”¹⁴⁵ Leaders and JAs should learn about and recommend reintegration resources (ranging from informal to Federal resources) for Reserve component Families.¹⁴⁶

Active and Reserve component attendees discuss their unique experiences during the integrated SVC Regional Training held 5-7 December 2023 at the USARLC in Gaithersburg, MD. In this photograph, MAJ Amanda M. Baylor, USAR SVC deputy program manager (left), enjoys a light-hearted exchange between MAJ Daphne A. Trombley, USAR SVC Southwest regional manager (1st LOD) (middle) and CPT Gabrielle D. Bloodsaw, Army SVC (Maneuver Center of Excellence, Fort Moore) (front-right). (Credit: 1LT Amber Lamb, USARLC)

Conclusion

Both the President and Congress govern and regulate the Armed Forces. The President delegates command authority to Service Secretaries, down to commanding officers and subordinate commanders. This delegation structure includes COCOMs, which have command authority over ARNG Soldiers on Federal active duty. Significant differences in command authority exist among the Regular Army, ARNG, and Reserve. Reserve component mission command authority stems from Congress’s legislative framework of training, funding, and personnel law unique to these two components. Congress funds and equips the Reserve component and can “adjust Reserve activation authorities,”¹⁴⁷ but its broad power over the Armed Forces should not unduly restrict the President’s command authority.

Commanders’ powers and responsibilities are based on whether their Soldiers are serving in a title 32 versus title 10 status; each status comes with its own set of command authority. Senior JAs must help commanders acknowledge the differences between these populations both in the source of the command authority over them and in the concerns they bring with them on Federal active duty. This is important given that the Reserve component will likely continue to mobilize in large numbers for Federal operations,¹⁴⁸ as it has been transformed since the Cold War Era from a last-resort force to an integral force multiplier.¹⁴⁹ Commanders need legal advice on matters requiring their exercise of discretion, judgment, inherent authority, and assumption of risk while making decisions. They must know the designated command roles to determine applicable legal authorities and responsibilities.¹⁵⁰ Judge advocates from all components must be prepared to advise commanders in operational environments that will include federalized ARNG and Reserve members transitioning from citizen-Soldier roles to active duty.¹⁵¹

Students in the 72d Graduate Course participate in a game of ultimate frisbee at The Judge Advocate General’s Legal Center and School in Charlottesville, VA. (Credit: MAJ Jonathan L. Kopecky)

Notes