South Dakota taxpayers have subsidized the state National Guard’s operations in world wars, the Middle East, Panama and the Caribbean. Now Gov. Kristi Noem has come up with a novel way of paying for it.
Ms. Noem, a Republican, announced Tuesday that she would deploy up to 50 of the state’s 3,100 Guard members to Texas, where they will help “secure the border between the United States and Mexico.” But unlike other Republican governors, who have dispatched troops to secure both the border and photo-ops for themselves, Ms. Noem found a private donor to provide the money for the deployment.
“The border is a national security crisis that requires the kind of sustained response only the National Guard can provide,” Ms. Noem said in a statement.
The move prompted an array of questions in South Dakota about the legality of privately funding National Guard operations, a fuzzy area of the law that officials in the state said had never before been contemplated. It comes as Ms. Noem is busy building a national profile ahead of the 2024 Republican presidential primary contest.
Ms. Noem’s spokesman, Ian Fury, said the governor was not available to be interviewed because she was with a newborn grandchild. The donor, Willis Johnson, a Tennessee billionaire who sent the money through his family’s foundation, declined to say how much he was sending to South Dakota to subsidize the Guard’s deployment.
“You’ve got illegals coming in and I just think they ought to follow the rules of America,” Mr. Johnson said. “South Dakota is a small state. They want to help America, I want to help them.”
Mr. Fury also declined to say how much the deployment would cost.
Mr. Johnson said he and Ms. Noem had both cleared the arrangement with their lawyers, but officials in South Dakota said they were unsure if it was legal.
“There are instances in South Dakota where we have private funding of government activities, but you see it more commonly in construction projections than in operations,” said Neil Fulton, who served as chief of staff to former Gov. Mike Rounds, a Republican, and is now the dean of the University of South Dakota School of Law.
The legal questions in South Dakota center on how the money would be transferred from Mr. Johnson through the state government to the National Guard. The State Legislature’s session has finished for the year, and no appropriations were set to consider a private donation to fund the state’s National Guard.
“I don’t have a clue if it’s legal,” said Roger Tellinghuisen, a Republican who served as South Dakota attorney general. “It’s a question in my own mind.”
Governors have wide authority to deploy National Guard units as they choose, and existing interstate compacts allow them to be sent to aid in recovery from natural disasters or events like the Jan. 6 attack on the Capitol by supporters of Donald J. Trump.
But Ms. Noem’s decision to accept private funding for the South Dakota National Guard’s deployment raised a number of ethical questions about the transparency of the state’s government and its use of the military.
“It’s basically money laundering, and it’s turning the state National Guard into a mercenary force,” said Rachel VanLandingham, a former Air Force lawyer who is a professor at Southwestern Law School in Los Angeles. “She’s using troops there that are a resource and have been paid for by taxpayers that are being used for a political show by a high-powered donor because the governor thought it was a good idea.”
Private funding of state National Guard troops was common in the 19th century, when mining companies subsidized military deployments to crush labor uprisings during the Industrial Revolution. A dedicated federal funding stream for the National Guard was created with what is often known as the Dick Act of 1903, named for the Ohio congressman who was chairman of the House Militia Affairs Committee.
“In terms of a governor accepting private money, there’s no historic precedent because the Guard is funded by U.S. and state tax dollars,” said Joshua Kastenberg, a military historian who served as an Air Force judge and is now a law professor at the University of New Mexico.
Legality aside, Ms. Noem’s decision to accept private funding for military operations worried both South Dakota Democrats and military ethicists. State Senator Reynold Nesiba, one of three Democrats in the 35-member chamber, said Wednesday that deploying troops at a donor’s whim “sets a dangerous precedent.”
“We cannot be setting up our Guardsmen to be mercenaries,” Mr. Nesiba said. “These are not troops for hire by anyone who calls the governor. They are not hers to dispatch for partisan political purposes.”
Geoffrey Corn, a retired Army lieutenant colonel who is a professor at the South Texas College of Law Houston, said he had never heard of private funding for American military activity. Federal law, he said, would prohibit donors from directly subsidizing federal military activities, but it does not govern the funding of state National Guard units.
Like the National Guard troops deployed to the Texas border by Republican governors of other states, South Dakota’s troops, Professor Corn said, will largely serve ceremonial duties, though they will have the authority to make citizens’ arrests.
This year, Gov. Brian Kemp of Georgia, who is vying to rebuild his standing among Republican voters after a falling-out with Mr. Trump over the governor’s refusal to help overturn the results of the presidential election in Georgia, traveled to the border to take a boat tour of the Rio Grande and meet with members of the Georgia National Guard. The trip was documented on his social media feeds.
Mr. Johnson called Ms. Noem “an up-and-comer in the Republican Party” whom he met at the Republican Governors Association gathering in Nashville in May. He said that in the 2024 presidential race, he was “100 percent for Trump,” but that if the former president did not run, he would support Ms. Noem or Gov. Ron DeSantis of Florida for the Republican nomination.
Mr. Fury declined to say where South Dakota’s troops would serve or when and if Ms. Noem would visit them there. Ms. Noem said in her statement that the initial deployment would last 30 to 60 days.
“All these governors are jockeying to be the heir apparent to Trump,” Professor Corn said. “I can’t even imagine being part of that National Guard unit. I’ve got to leave my job and my family to go to Texas for this publicity stunt?”
Kitty Bennett contributed research.