Senate Bill S8533

                                 
BILL NUMBER: S8533

SPONSOR: GOUNARDES
 
TITLE OF BILL:

An act to amend the military law, in relation to prohibiting outside
militias without permission

 
PURPOSE OR GENERAL IDEA OF BILL:

To clarify that another state may not deploy its National Guard reserves
into New York State without the Governor's consent.

 
SUMMARY OF PROVISIONS:

Section one of this bill adds a new subdivision to Section 22-a to Mili-
tary Law, which is the enabling statute for the New York National Guard.
This new subdivision would forbid any other state, territory, or
district from deploying their organized militias into the New York State
without expression permission from the New York State Governor, unless
the militia has been federalized and is acting under the direct authori-
ty of the President of the United States. This carveout exists because
              

while there are various other constitutional and legal constraints that
this type of federalization of state troops may face, states are
preempted from barring National Guard federalization under state law.

This prohibition would be enforced by the New York State Attorney Gener-
al, who could sue for injunctive relief.

Section two is a severability clause.

Section three sets the effective date.

 
JUSTIFICATION:

The National Guard, as a state-based military reserve that supplements
the operations of the United States Army and Air Force, is a critical
arm of our nation's military apparatus. The majority of National Guard
soldiers hold full-time civilian jobs while conducting drills at least
one weekend a month and training at least two weeks of the year.1 Organ-
ized at the local level in all 50 states, three US territories, and the
District of Columbia, the National Guard typically reports to and oper-
ates directly under each state or territory's governor and is thus fund-
ed by state dollars.

Beyond their role as military reservists, the Guard has historically
been tapped by state leaders for missions of nationwide importance, such
as the Hurricane Katrina rescue, wildfires in Maui, Hawaii, and the City
of Los Angeles, World Trade Center rescue operations after September
11th, 2001, or the distribution of the COVID vaccine in 2020.2

Recognizing the autonomy which constitutional, federal, and state law
gives states over their own National Guard, all 50 states have entered
into frameworks that balance coordination with federal authority, while
maintaining local control. The Emergency Management Assistance Compact
(EMAC)3, an interstate compact subscribed to by all fifty states and the
District of Columbia, which, recognizing the sovereign control that each
state generally exercises over its National Guard, provides state gover-

nors with a way to quickly request assistance from other states, is one
such framework.

In recent years, questions have emerged about whether and under what
circumstances one state's National Guard may be deployed across state
lines without the host state's consent. Such deployments raise signif-
icant constitutional questions related to the Tenth Amendment, the Posse
Comitatus Act (in 18 USC Section 1835, which bars any use of the federal
armed forces for traditional, non-military law enforcement4), and the
general principle that each state's executive branch serves as comman-
der-in-chief of its own military forces.

While federal law permits the President to federalize the National Guard
under Title 32 of the U.S. Code, the authority is limited by longstand-
ing prohibitions against using the armed forces for domestic law
enforcement. States have, on occasion, exercised their rights to chal-
lenge perceived overreach in federal deployment. For example, the State
of California recently used the Posse Comitatus Act to win an early
legal victory when President Trump deployed National Guard troops to Los
Angeles in response to deployments in June 2025.5

Separately, there have been instances of states voluntarily deploying
their National Guard troops across state lines for missions not coordi-
nated through federal channels.6 These actions underscore the need for
clear statutory guidance ensuring that the Governor of a state retains
ultimate authority over any military or law enforcement activity occur-
ring within that state's borders.

This bill would therefore take the simple, but necessary, step of proac-
tively requiring other states to obtain the permission of the New York
State Executive before deploying their National Guard troops into the
Empire State. In the event that another state violates this law, the New
York State Attorney General would have grounds to sue for a preliminary
injunction and other equitable relief.

While this type of nonconsensual, out-of-state activation of the
National Guard arguably already violates the state sovereignty doctrine
of the Tenth Amendment, this question has yet to be tested in the
courts, which is why several other states have seen fit to clarify and
reaffirm this prohibition in their own state laws and constitutions.'
This bill would therefore follow the lead of these other states by
establishing a clear statutory requirement for other states, districts,
and territories to obtain affirmative, advance consent from the New York
State governor before deploying their National Guard troops into New
York, protecting residents while affirming the governor's constitutional
role as commander-in-chief of our state's military forces.

This legislation is a common-sense measure designed to promote public
safety, prevent interstate conflict, and safeguard civil liberties by
ensuring that all National Guard deployments within state borders occur
with clear legal authority and respect for state sovereignty.

 
PRIOR LEGISLATIVE HISTORY:

None

 
FISCAL IMPLICATIONS:

None

 
EFFECTIVE DATE:
1 (Thomas, Morgan. "Military 101: Understanding the Differences between
Active Duty, National Guard and Reserves - the Council of State Govern-
ments." The Council of State Governments, 19 Dec. 2023,
www.CMorg/2023/12/19/militarv-101-understanding-the-differences-between-
active-duty-national-guard-and-reserves/.).
2 Hippensteel, Chris. "Trump Is Expanding the National Guard's Role.
Some Former Generals Worry." The New York Times, 21 Sept. 2025,
www.nytimes.com/2025/09/21/us/national-guard-crime-washington-
cities.html.)
3 https://www.emacweb.org/
4 Nunn, Joseph. "The Posse Comitatus Act Explained." Brennan Center for
Justice, 29 Sept. 2025, www.brennancenter.org/our-work/research-
reports/posse-comitatus-act-
explained?ms=gad_posse%20comitatus_757934968274_8626214133_184759161790
&gadsource=1&dad camoaignid=8626214133&gb
raid=0AAAAAC8MkJHLO2LwSvoisi4IG
L8XNM&dclid=CiOKCIDiw30iGBhDYARIsADd-uX5tA7fEtPILF3
cLeoNvF6fd112BNp1xhNpCoG41 51ex126v himpdaAdZ6EALw wcB.).
5 Newsom v. Trump, No. 25-CV-04870-CRB, 2025 WL 2501619, at *1 (N.D.
Cal. Sept. 2, 2025
6 Vasilogambros, Matt. "Blue States Fear Invasion by Red-State National
Guard Troops for Deportations ò Stateline." Stateline, 5 Feb. 2025,
stateline.org/2025/02/05/blue-states-fear-invasion-by-red-state-national
-guard-troops-for-deportations/.)
7 Hall, Peter. "Trump Has Deployed Troops to Three Cities; Could Phila-
delphia Be on His List? ò Pennsylvania Capital-Star." Pennsylvania Capi-
tal-Star, 22 Sept. 2025, penncapital-starcom/civil-riqhts-social-
iustice/trumn-has-deployed-troop s-to-three-cities-could-philadelphi
a-be-on-his-list/.