Soon, the New Hampshire General Assembly will vote on a resolution on the use – and misuse – of the State’s National Guard troops. HJR21 “A RESOLUTION informing the United States Congress that it is the desire of the general court of New Hampshire that the New Hampshire national guard shall not serve outside the borders of New Hampshire absent a declaration of war.”
Good intentions here, for sure. Article I, Section 8, Clauses 15 and 16 control the organizing, arming, and disciplining of these units as well as when they can be called for for federal duty.
In Article 1, Section 8 Congress Shall have the power…
Clause 15 – To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
Clause 16 – 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;
In 1903, under the Congressional power to “organize” the Militia, Congress named those units Constitutionally-authorized to be called for federal duty under Clause 15, the “National Guard.” But, even with this new, and misdirected name, they still remain under control of the individual states except in those instances delegated to the federal government in Clause 15.
So, while HJR21 gets it close as a Constitutional principle, Guard troops would stay in the state even with a Declaration of War from Congress – unless the need was a foreign army threatening to enter the borders of the United States. But, since a Declaration hasn’t happened – as it should – since World War II, the practical effect would be the same. New Hampshire’s national guard troops (and every other state for that matter) should be recalled to their states – now.
A better option than petitioning and begging Congress to do what’s right – which they almost never do – would be to pass the Tenth Amendment Center’s Defend the Guard Act, which puts these ideas into law. It is an act “FOR the purpose of requiring the Governor to withhold or withdraw approval of the transfer of this State’s National Guard to federal control in the absence of an explicit authorization adopted by the Federal Government in pursuance of the powers delegated to the Federal Government in Article I, Section 8, Clause 15 of the U.S. Constitution.”
Read the bill in its entirety at this link:
Track states that have considered the bill in recent legislative sessions here”
And please, send this to your state reps – firmly telling them that you want to see it introduced in your state!
Latest posts by Michael Boldin (see all)
- Getting it Wrong: James Madison’s 1830 Letter on Nullification - October 18, 2017
- A One-Track Mind: Most Lawyers on Nullification - October 14, 2017
- “Few and Defined,” not “Anything and Everything.” - October 9, 2017