The Tennessee Attorney General has released its opinion regarding the constitutionality of HB 1609 which if enacted into law would prohibit the Governor from releasing Tennessee National Guardsmen into active combat overseas. The AG’s opinion is that the bill is “constitutionally suspect under the Supremacy Clause of the United States Constitution.” We disagree of course, and we are on solid ground. Here’s why:
Clearly, the Supremacy Clause doesn’t mean the federal government can do whatever it wants. It specifically limits federal supremacy to laws made “in pursuance” of the Constitution. As Alexander Hamilton said in Federalist #33, “It will not follow from this doctrine [federal supremacy] that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such.”
The Constitution clearly defines (and limits) federal power over the state militia. When the federal government tries to use the militia in other ways, it is an act of usurpation. This is what Defend the Guard addresses.
The AG discusses “dual enlistment” or as he explains it “two overlapping but distinct organizations: the National Guard of the various states and the National Guard of the United States.”
This is a distinction without a difference.
In the Dick Act of 1903, Congress exercised its delegated power and organized the militia into today’s National Guard. The key fact is today’s National Guard is governed by the “militia clauses” of the Constitution, and this view is confirmed by the National Guard itself. These constitutional definitions don’t cease to exist when the federal government calls the Guard into Federal service. Any federal use of the Guard outside of the limit imposed by the Constitution are unconstitutional.
WHAT HAS THE SUPREME COURT SAID?
The AG leans heavily on the Supreme Court decision in Perpich v. Department of Defense, but he extends the opinion of the court beyond the facts of the case.
The governor of Minnesota initiated the suit. He argued that a 1987 federal training mission in Central America for certain members of the state Guard, and the Montgomery Amendment violates the Militia Clauses of Article I, § 8.
The key words are “federal training.” The case focused exclusively on “active-duty overseas training.” The opinion specifically states the issue at hand was “whether the Congress may authorize the president to order members of the National Guard to active duty for purposes of training outside the United States during peacetime without either the consent of a state governor or the declaration of a national emergency.”
In summation, the Court held that “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.”
From a practical standpoint, the Supreme Court decision in Perpich limits the governor’s power to block a state’s National Guard unit’s deployment for training purposes. This follows from the militia clauses in the Constitution. Paragraph 15 explicitly delegates to the federal government authority for “disciplining, the Militia.” This is a founding era phrase for “training.”
But while the federal government can dictate training, even overseas, this does not authorize the federal government to activate state National Guard units for other purposes. Obviously, neither Congress nor the president can call up the Guard to regulate commerce, deliver mail or enforce a bump stock ban. These are all outside of the constitutional parameters clearly specified in the Constitution.
In a nutshell, under the Montgomery Amendment and the SCOTUS decision, the feds can train National Guard units overseas and the governors can’t block the deployment. But calling up a National Guard unit for combat operations is an entirely different matter that isn’t touched by the Supreme Court opinion. The Court has never addressed this issue at all.
It’s true. The Court might determine that Defend the Guard conflicts with federal law. (If it did, it would effectively excise the militia clause from the Constitution.) But it’s just as likely that the SCOTUS would recognize the limits imposed by the Constitution and affirm Defend the Guard.
The AG buries perhaps the most significant counter to his quasi-legal argument in the footnotes of his written opinion. Examination of the footnotes demonstrates the level of creative liberty taken with selective editing. AG writes, “House Bill 1609 conflicts with—and is therefore preempted by—federal legislation that authorizes active reserve duty for the National Guard without the consent of the governor of the State concerned “[i]n time of war or of national emergency declared by Congress, or when otherwise authorized by law.” 10 U.S.C. § 12301(a) (emphasis added).”
The footnote to this section reads, “While subsections (b) and (d) of 10 U.S.C. § 12301 do require the consent of the governor in the circumstances addressed in those subsections, the governor’s ability to withhold consent is significantly constrained because subsection (f) states: “The consent of a Governor described in subsections (b) and (d) may not be withheld (in whole or in part) with regard to active duty outside the United States, its territories, and its possessions, because of any objection to the location, purpose, type, or schedule of such active duty.”
Section (f) is colloquially referred to as “The Montgomery Amendment” which was upheld by the U.S. Supreme Court 35 years ago in a narrow ruling that addressed only the Guard’s mobilization overseas for “training” purposes during “peacetime.” The Court did not opine on the objective of this proposed legislation: to prohibit deployment of our National Guard to active combat duty overseas during a time of undeclared war.
In the relevant case — Perpich v. Department of Defense — the Court summarized, “The question presented is whether the Congress may authorize the President to order members of the National Guard to active duty for purposes of training outside the United States during peacetime without either the consent of a state governor or the declaration of a national emergency.” Pp. 496 U. S. 347-355.”
THIS reference to the court opinion is not edited for misuse nor relegated to the footnotes to be overlooked. The Supreme Court decision should not be twisted for alignment where it is not intended.
To clarify and repeat, the Court has not prohibited a state from requiring that the deployment of its National Guard to active-duty combat during a time of active military conflict must be preceded by a Congressional declaration of war.
Further, Section (f) is often misconstrued and referenced as a statement of fecklessness regarding the governor’s authority over the militia because it asserts that current federal law does not allow state governors to object to the deployment of National Guard troops for overseas combat missions.
In fact, the proposed legislation has nothing to do with the governor’s “right” to object. Instead, it would be a state legislative prohibition – and if enacted, a state law – prohibiting the mobilization of our National Guard for overseas combat absent a Congressional declaration of war.
Similarly, this legislation has nothing to do with a governor choosing to block deployment based on “any objection to the location, purpose, type, or schedule of such active duty,” as described by Title 10. Instead, this legislation by state law would prohibit National Guard deployment based on Congress’s failure to fulfill its clearly-specified duty under the U.S. Constitution.
Still, even Title 10 itself, in subsection (d), provides: “At any time, an authority designated by the Secretary concerned may order a member of a reserve component under his jurisdiction to active duty, or retain him on active duty, with the consent of that member. However, a member of the Army National Guard of the United States or the Air National Guard of the United States may not be ordered to active duty under this subsection without the consent of the governor or other appropriate authority of the State concerned.”
Does subsection (f) supersede subsection (d)? Why wasn’t subsection (d) removed when Title 10 12301 was amended with the Montgomery Amendment? The simple solution of just repealing sections (b) and (d) (Governor’s consent) was rejected by Congress and by the Department of Defense and by the National Guard Bureau.
We can read from period writings, “This is one reason why the simple solution of just repealing sections (b) and (d) was rejected. Not only would that have been a direct slap at the governors by emasculation of a very noticeable element of their authority, but it also would have obviated the one really valid point of the original intent of this section of Title 10-to assure a governor of the availability of his National Guard when he needed it for state purposes. No voice in the department of defense or national guard bureau ever suggested that a training deployment to Central America or anywhere else would take precedence over a governor’s requirement for his Guardsmen for missions like the San Francsico earthquake or Hurricane Hugo or even much lesser missions deemed important by a governor for state purposes. Thus. the genesis of Section (f). The simplicity of its approach was that it maintained all the previous authorities, but only stated that no governor could withhold a unit from deployment on account of ”location, purpose, type or schedule” of such deployment.”
Representative Sonny Montgomery, for whom the Amendment was named, said of the governors right to withhold National Guard Troops in subsections (b) and (d), ”At the time, we were generally of the belief that it (leaving b and d and adding f) did solve the problem. I believe that throughout the Department of Defense there was a sigh of relief that this basically put the problem behind us. ”It’s worked perfectly. Nobody’s tried to get around it. They’ve challenged it in court, but as far as interpretation about whether we can do this or that, from the government we’ve had no problems whatsoever. In fact, I think most governors were glad to see it. It takes it out of their hands, and they can say, *they’ve taken it out of my hands. I can’t stop them from going to Central America for training. But if I have an emergency here, I can keep them back home.”
It is our legal opinion that Defend the Guard is a valid and constitutional exercise of state power and would serve to restore the proper constitutional balance when it comes to war powers.
WHAT IS WAR?
The AG concedes that the SCOTUS has never weighed in on the definition of “war.” He then goes on to assert that “from the Administration of President John Adams to the present, Congress has recognized the president’s role as Commander-in-Chief of the military and passed legislation authorizing the use of military force by the president without a formal declaration of war.”
In fact, Congress has “recognized” all kinds of things that violate the Constitution. In 1798, John Adams signed a bill into law making it a crime to criticize Congress or the president. Invoking what Congress has or hasn’t recognized isn’t a constitutional argument.
Constitutionally, Congress must “declare war” before the president can engage in any military action beyond the line of defense. Thomas Jefferson put it this way.
“Congress alone is constitutionally invested with the power of changing our condition from peace to war.”
Article I Sec. 8 delegates to the Congress the power to “declare war.” Article II Sec. 2 designates the president as “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.”
These two roles are separate and distinct from one another. Only Congress can make the decision to engage in war. Once that decision is made, the president then is required to prosecute the war, within the limits Congress places on him, if any. He must continue to execute the war until Congress takes explicit action to end the war.
As James Madison put it in Helvidius No. I, “Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded. They are barred from the latter functions by a great principle in free government, analogous to that which separates the sword from the purse, or the power of executing from the power of enacting laws.” [emphasis in original]
The designation of commander in chief does not delegate to the president any authority to take America into war, initiate any offensive military expeditions, or unilaterally end them.
Founding-era discussion on war powers makes it clear that the framers and ratifiers wanted the authority to take America into war placed in the legislative branch because it is a deliberative body and most closely represents the will of the people and the states. They did not want the authority to drag the U.S. into war placed at the discretion of one individual. Madison emphasized this point in a letter to Thomas Jefferson.
“The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legislature.”
There was a great deal of thought put into the separation of the power to declare and wage war. Madison considered it the wisest part of the Constitution:
“In no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department.”
Congress has abdicated its responsibility to deliberate and declare war by passing the decision-making to the president. It either turns the other way when the president unilaterally acts, or it passes vague Authorizations to Use Military Force (AUMFs) to pass the buck to the president.
Congress routinely now authorizes the President’s use of military force by means other than a declaration of war. It is that routine abdication of Congressional authority that is the very point of the proposed legislation.
Notably, the AUMF authorizing use of U.S. military forces in the endless “War on Terror” was voted on by Congress in 2001, meaning no member of Congress has voted on that issue in two decades, and many if not most current members of Congress have never voted on that authorization at all.
Do you imagine that’s what our Founding Fathers intended? That one AUMF 20 years ago would stand as an eternal blank check to the executive branch for use of war powers, especially given statements by the Founders expressly to the contrary over two centuries ago?
This violates both the spirit and the letter of constitutional war powers.
(We’d like to thank the Tenth Amendment Center, Bring Our Troops Home, and Defend The Guard TN for their combined efforts toward compiling the preceding information.)
