The newly agreed-upon National Defense Authorization Act would forbid the use of private funds to pay for the National Guard to be deployed.
The relevant provision in the NDAA, which was announced on Tuesday, comes months after a controversial case in which a political donor funded a deployment. It bars a National Guardsman from being “ordered to cross a border of a State to perform duty … if such duty is paid for with private funds, unless such duty is in response to a major disaster of emergency under section 401 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act," according to a summary of the final legislation.
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South Dakota Gov. Kristi Noem approved two deployments of roughly 175 total members of the South Dakota National Guard’s 1742nd Transportation Company to the southern border. The first deployment that Noem ordered on June 29 was funded by Republican donors Willis and Reba Johnson.
At the time, Noem’s communications director referred to SDCL 5-23-12 and SDCL-48A-36 when asked about the legality of the order. The first law allows the governor to receive a gift, including money, even if there is a "pre-existing condition," as long as it is in "the best interest of the state," while the latter specifically allows the governor to receive funds should they be in the name of "emergency management."
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Rep. Adam Smith, chairman of the House Armed Services Committee, called Noem's decision to use a private donation to fund the Guard deployment "unbelievably dangerous" and said the U.S. military should not be treated like a "private militia."
The NDAA authorizes $740 billion for the Department of Defense, $25 billion more than the Biden administration requested, and includes $7.1 billion, roughly $2 billion more than the administration sought, to “support and attempt to improve the current posture, capabilities, and activities of U.S. forces in the Indo-Pacific region,” according to the summary.