Tenth Amendment Center: West Virginia Bill Would Reject Unconstitutional National Guard Deployments
CHARLESTON, W.Va. (Feb. 6, 2018) – A bill introduced in the West Virginia House of Delegates this week would block unconstitutional foreign deployments of the state’s national guard troops, effectively restoring the Founders’ framework for state-federal balance on the Guard.
House Bill 2377 (HB2377), the Defend the Guard Act, was introduced by Del. Pat McGeehan (R-Hancock, 1), a former Air Force intelligence officer who did tours in Afghanistan and the Middle East, and cosponsored by ten other delegates. If passed, the bill would block the federal government from deploying West Virginia Guard troops overseas unless there is a declaration of war from Congress, as required by the Constitution.
Guard troops have played significant roles in all modern overseas conflicts, with over 650,000 deployed since 2001. More specifically, West Virginia National Guard troops have participated in missions in Iraq, Afghanistan, Libya, Kosovo and elsewhere.
Since none of these missions have been accompanied by a Constitutional declaration of war, the Defend the Guard Act would have prohibited the deployments. Such declarations have only happened five times in U.S. history, with the last being in World War II.
Article I, Section 8, Clauses 15 and 16 make up the “militia clauses” of the Constitution. Clause 16 authorizes Congress to “provide for organizing, arming, and disciplining, the Militia.” In the Dick Act of 1903, Congress organized the militia into today’s National Guard, limiting the part of the militia that could be called into federal service rather than the entire body of people. Thus, today’s National Guard is governed by the “militia clauses” of the Constitution, and this view is confirmed by the National Guard itself.
Clause 15 delegates to the Congress the power to provide for “calling forth the militia” in three situations only: 1) to execute the laws of the union, 2) to suppress insurrections, and 3) to repel invasions.
During state ratifying conventions, proponents of the Constitution, including James Madison and Edmund Randolph, repeatedly assured the people that this power to call forth the militia into federal service would be limited to those very specific situations, and not for general purposes, like helping victims of a disease outbreak or engaging in “kinetic military actions.”
“Defending one side or the other in a Middle East civil war doesn’t qualify as ‘repelling an invasion,’” said Mike Maharrey, national communications director for the Tenth Amendment Center. “The Founders didn’t trust presidents on war, and one way they insisted on balancing that power was by keeping a strong military force at home, in the states.”
RETURNING TO THE CONSTITUTION
It is this limited Constitutional structure that advocates of the Defend the Guard Act seek to restore. That is, use of the Guard for the three expressly-delegated purposes in the Constitution, and at other times to remain where the Guard belongs, at home, supporting and protecting their home state.
“For decades, the power of war has long been abused by this supreme executive, and unfortunately our men and women in uniform have been sent off into harm’s way over and over,” said McGeehan. “If the U.S. Congress is unwilling to reclaim its constitutional obligation, then the states themselves must act to correct the erosion of constitutional law.”
Maharrey agreed. “While getting this bill passed isn’t going to be easy, it certainly is, as Daniel Webster once noted, one of the reasons state governments even exist.”
Referenced by Maharrey was an 1814 speech on the floor of Congress where Webster urged similar actions to McGeehan’s Defend the Guard Act. He said, “The operation of measures thus unconstitutional and illegal ought to be prevented by a resort to other measures which are both constitutional and legal. It will be the solemn duty of the State governments to protect their own authority over their own militia, and to interpose between their citizens and arbitrary power. These are among the objects for which the State governments exist.”
HB2377 has been assigned to the House Veterans’ Affairs Committee. It will need to pass by a majority vote before moving forward