West Virginia Bill Would Block Unconstitutional National Guard Deployments

By: Michael Boldin

A bill introduced in the West Virginia House would prohibit unconstitutional foreign deployments of the state’s national guard troops, effectively restoring the Founders’ framework for state-federal balance on the Guard.

House Bill 2732 (HB2732), the Defend the Guard Act, was introduced by Del. Pat McGeehan (R-Hancock), a former Air Force intelligence officer who did tours in Afghanistan and the Middle East, and cosponsored by coalition of five democrats and three republicans. If passed, the bill would prohibit the deployment of West Virginia Guard troops in “active duty combat” unless there is a declaration of war from Congress, as required by the Constitution. It reads, in part:

The West Virginia National Guard and any member thereof shall not be released from the state into active duty combat unless the United States Congress has passed an official declaration of war or has taken an official action pursuant to Article I, § 8, Clause 15 of the United States Constitution to explicitly call forth the West Virginia National Guard

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 those deployments. Such declarations have only happened five times in U.S. history, with the last being in World War II.

BACKGROUND

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,” which makes up the totality of the “militia.” 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.”

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 the West Virginia 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.”