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Additional Titles

WHO'S GUARDING THE GUARD?

By Mary Starrett & David Brownlow
August 22, 2006
NewsWithViews.com

The nation's governors were unanimous in their opposition to a provision buried deep within the National Defense Authorization, (DoD) Act (H.R. 5122) that would authorize the President to take control of the National Guard in the case of, "a serious natural or manmade disaster, accident, or catastrophe that occurs in the United States, its territories and possessions, or Puerto Rico." Read their concerns here.

The governors were correct, and timely, in calling attention to this latest attempted federal power grab. However, they have missed the bigger, and far more dangerous reality - the federal government has been usurping state's authority over the National Guard for many decades.

There has been no greater usurpation of federal power over the National Guard than the continued abuse of our citizen soldiers by their forced deployment to Iraq and Afghanistan. Thousands of National Guard soldiers have been illegally conscripted to fight - and die - in foreign wars we never should have started in the first place.

According to the National Guard, the Guard's charter is Article 1, Section 8, of the U.S. Constitution. Specifically, the Guard's authority comes from the "militia clauses," which vest distinct - and separate - authority to the federal and state governments.

These authorities and responsibilities - these separations of power - are clear and well defined. In such concise wording that even a government-educated lawyer could understand it, the Constitution vests authority in the Congress:

The very first thing that comes out of this is that the President has NO authority to call up the National Guard - NONE whatsoever! The President has no more authority to call up the National Guard than you or I do! The President does assume the role of commander-in-chief of the Guard once it is called into the actual service of the United States, but the president has no power to press them into service.

Congress is the only branch within the federal government that has the authority to call forth the National Guard. This power is exclusive. Neither the President, nor anyone in the chain of command of the regular Army, has any authority to call up the Guard.

Even then, however, congressional authority over the Guard is framed within a very limited and well-defined context. It is laid out for us with a complete lack of ambiguity - Congress can only call forth the Guard to "execute the laws of the union, suppress insurrections and repel invasions." That is it. That is the entirety of any federal power to call forth the National Guard.

Aside from these limited circumstances, there are no other legal justifications for a federal call up of the Guard - not for hurricanes, not for earthquakes, not for man-made disasters, and not for nation-building misadventures. These restrictions would obviously prohibit the Congress from calling forth the Guard to suppress insurrections and repel invasions in other people's countries!

There is another jurisdiction, arguably the most important jurisdiction, that has authority to call up the National Guard - and that would be the governors of the fifty states. In the case of Oregon, Article 5, Section 9 of the Oregon Constitution uses wording nearly identical to the federal Constitution: "The Governor shall be commander in chief of the military, and naval forces of this State, and may call out such forces to execute the laws, to suppress insurrection, or to repel invasion."

Within the entire National Guard chain of command, it is the governor that has the real authority. Technically, in Oregon anyway, the governor does not even have to ask permission of the state legislature to call out the state military forces. The only way the federal government can usurp the clearly mandated state authority over the National Guard, is if we allow it to happen.

There has been an attempt to paper over the federal usurpation of state militia authority with the passage of a number of congressional Acts - the Militia Act of 1903, and the National Defense Act of 1916, to name two. The real intent of these Acts was to blur the line between the militia and the regular Army, and to give the impression that the militia/National Guard was simply an extension of the federal Army.

These Acts turn the intent of our framers, as well as the plain English of the "militia clauses," completely upside down.

The good news is that no Act of Congress can invalidate, or change, the Constitution. That is what amendments are for. And, there is no amendment that gives the president or the Congress any more control over the National Guard than that which was granted in Article 1 Section 8.

We can be thankful that the governors have called our attention to this latest attempted federal power grab. But they need to move beyond worrying about hurricanes and earthquakes, and start exposing the havoc that is being wreaked on our National Guard by the imperialist ambitions of those who lead our federal government.

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The National Guard has been illegally deployed to foreign battlefields. The governors need to step it up and take back control of their state Guard units and demand the immediate and unconditional return of their soldiers from Iraq and Afghanistan.

� 2006 Mary Starrett - All Rights Reserved