Inconvenient News,
       by smintheus

Wednesday, January 10, 2007

  When will a governor put His Petulance on notice?

His Petulance cannot hope to escalate farther down into the abyss without sending more members of the state militias, also known as the National Guard, to Iraq. Congress can stop the escalation by refusing to permit those troops to be called up to active duty. But a courageous governor could also block Bush, and change the entire dynamic of the national debate on Iraq, by refusing to permit the federal government to take control of the forces under the governor's command.

Why has a revolt of the governors not occured yet? Surely because they feel stymied by a deeply flawed ruling of the Supreme Court. In 1990 SCOTUS upheld the language of an Act of 1987, which stated that governors may not block the federal government's deployment of their own National Guard troops on the grounds of "location, purpose, type, or schedule of such duty".

But SCOTUS evaded the fundamental fact that the Constitution allows state militias to be federalized only for a few domestic purposes. Since the invasion and occupation of Iraq do not by any stretch of the imagination fit into the circumstances identified by the Constitution, it seems to me that a governor would be justified in challenging any further National Guard deployments.

The issue was brought before SCOTUS in 1990, after the governor and state of Minnesota refused to allow the Minnesota National Guard to be dragged off to Central America for "training". For most of the nation's history, governors retained the right in some circumstances to refuse a federal request for state militia troops.

Congress decided to change that tradition with the National Defense Authorization Act for Fiscal Year 1987. The Montgomery Amendment to the Act revised federal law to provide...

that a governor cannot withhold consent [to the federal government for bringing National Guard troops into active duty] with regard to active duty outside the United States because of any objection to the location, purpose, type, or schedule of such duty.


In 1990, SCOTUS unanimously upheld the 1987 Act and rejected the case brought by Minnesota. Find Law But to my mind, the ruling has some truly basic flaws:

Since 1933, federal law has provided that persons enlisting in a State National Guard unit simultaneously enlist in the National Guard of the United States, a part of the Army. The enlistees retain their status as State Guard members unless and until ordered to active federal duty and revert to state status upon being relieved from federal service. The authority to order the Guard to federal duty was limited to periods of national emergency until 1952, when Congress broadly authorized orders "to active duty or active duty for training" without any emergency requirement, but provided that such orders could not be issued without the consent of the governor of the State concerned. After two State Governors refused to consent to federal training missions abroad for their Guard units, the gubernatorial consent requirement was partially repealed in 1986 by the "Montgomery Amendment," which provides that a governor cannot withhold consent with regard to active duty outside the United States because of any objection to the location, purpose, type, or schedule of such duty....

Held:

Article I's plain language, read as a whole, establishes that Congress may authorize members of the National Guard of the United States to be ordered to active federal duty for purposes of training outside the United States without either the consent of a State Governor or the declaration of a national emergency.

(a) The unchallenged validity of the dual enlistment system means that Guard members lose their state status when called to active federal duty, and, if that duty is a training mission, the training is performed by the Army. During such periods, the second Militia Clause is no longer applicable. ...

(c) This interpretation merely recognizes the supremacy of federal power in the military affairs area and does not significantly affect either the State's basic training responsibility or its ability to rely on its own Guard in state emergency situations....

(e) Thus, the Montgomery Amendment is not inconsistent with the Militia Clauses. Since the original gubernatorial veto was not constitutionally compelled, its partial repeal by the Amendment is constitutionally valid.


I think you will search in vain in the ruling for any decisive demonstration of the sweeping assertion, "Article I's plain language, read as a whole, establishes that Congress may authorize members of the National Guard of the United States to be ordered to active federal duty for purposes of training outside the United States without either the consent of a State Governor or the declaration of a national emergency." Read as a whole? The argument is, in effect, that because Article One gives Congress some powers to organize the militias, therefore it also permits Congress to ignore Article One's plain language about the limited circumstance in which militias may be federalized.

SCOTUS denied in effect that there was a constitutional issue at all in the 1990 case. I think that the ruling is highly questionable. Indeed, it assumes the very issues that need to be addressed.

The question before it was, or should have been, when, how, and under what circumstances may the federal government take command over the state militias (aka National Guard, etc.)? SCOTUS argued instead that because Guard personnel have a dual role, as state militia members and as regular army members, the governors lose control over when and how the federal government gets to use them--whenever the federal government chooses to treat them as active duty troops.

This, to my mind, makes nonsense of the very distinction in the Constitution between state militias and federal forces. The SCOTUS ruling implies that militias are in all essentials federal forces whenever the federal government says that they are. But if that were indeed the case, why would Article One bother to specify the circumstances in which militias could be federalized?

In other words, it may be the current will of the federal government to ignore the distinction between National Guard and regular Army forces, but that conflicts with the actual Constitutional arrangements for state militias.

Here are the relevant sections of the Constitution:

Article I, Section 8; Clause 15

The Congress shall have Power ... To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.

Article I, Section 8; Clause 16

The Congress shall have Power ... To 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, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

Article II, Section 2

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States...


The first selection is the most critical, for this question. What are the circumstances under which the Congress may call up and employ state militias? There are only three circumstances:

to execute the Laws of the Union, suppress Insurrections and repel Invasions.


These are all, entirely, domestic matters. Federal law cannot be executed except within the bounds of the US. The reference to "Insurrections" clearly is to domestic insurrection. And an invasion can be repelled only when it is inside the borders of the US.

There is not even a hint in the Constitution that Congress may use state militias to invade foreign countries, much less to occupy them.

Furthermore, it is the Congress which is permitted to make the decision to call up state militias, not the President. He becomes commander-in-chief of the state militias only "when called into the actual Service of the United States." That is to say, he becomes CiC only after Congress calls the militias into service. I think it is fair to say that the Framers of the Constitution denied the President any powers of his own to call militia/National Guard troops to active duty.

I am not talking through my hat, for once. The US Attorney General in 1912 issued a ruling that took the same position as I do on what the Constitution permits state militias to be used for. From the SCOTUS ruling in 1990:

"It is certain that it is only upon one or more of these three occasions - when it is necessary to suppress insurrections, repel invasions, or to execute the laws of the United States - that even Congress can call this militia into the service of the United States, or authorize it to be done." 29 Op. Atty. Gen. 322, 323-324 (1912).

"The plain and certain meaning and effect of this constitutional provision is to confer upon Congress the power to call out the militia `to execute the laws of the Union' within our own borders where, and where only, they exist, have any force, or can be executed by any one. This confers no power to send the militia into a foreign country to execute our laws which have no existence or force there and can not be there executed." Id., at 327.


The AG was rejecting the position adopted by a statute from 1908, which stated that militias may be employed "either within or without the territory of the United States." That statute was the first attempt to amend the 1902 law, the Dick Act, which established the modern system of state militias. The Dick Act, following the clear meaning of the Constitution, stated that the services of the federally-organized militia would "be rendered only upon the soil of the United States or of its Territories."

Until World War One, therefore, it was essentially accepted by all but a small faction of imperialists that state militias may be federalized only for the three purposes identified by the Constitution. It was the period of excess militarism, during World War One, which began to obscure that consensus and replace it with the idea that Congress and the President were within their rights to ship state militias overseas, to fight in Flanders Fields for example.

SCOTUS sided with the imperial adventurists in its 1990 findings, rather than with the clear meaning of Article One.

So, aside from this atrocious ruling by SCOTUS, why should governors submit to having their own militias called to active service abroad in the occupation of Iraq? Why should not at least one of them refuse to allow any more call-ups, and bring the constitutional issue to a boil?

The policy of His Petulance clearly is to keep stringing this unwinnable war along until he leaves office, so that he need not admit to defeat. If a governor were to defy him now, to refuse him any further National Guard troops from, say, Pennsylvania, on the basis that state militias may only be federalized for domestic purposes, what would the consequences be? I'm pretty sure that the issue would have to be litigated. And I'd like to think that would be the perfect response to the administration's policy of dragging matters out. Let SCOTUS decide whether there is a constitutional issue to be resolved. And meanwhile, let His Petulance just try to get his hands on the troops he needs to prolong the war.

From Unbossed

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