I was contacted by a reporter from LifeSiteNews.com asking for comment regarding a news item in Texas and Mississippi. According to the Associated Press, the Texas and Mississippi National Guards “won’t give same-sex benefits at some locations,” citing state gay-marriage bans.

Setting aside my own personal view that government-issued marriage license are an affront to the peace and liberty of people from all backgrounds (and were often used in the 19th century as an attempt to prevent interracial marriage), there certainly are some important constitutional issues here.

Constitutionally-speaking, the National Guard of each state is not like a county – a simple political subdivision of the Pentagon. The Constitutional articles of note are:

Article I, Section 8, Clause 15:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

and 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 an 18th Century legal sense, “to provide for” generally was used in a more future sense.  Such as make plans for, make rules, for, and the like.

Congress can “nationalize” the Guard, but only SO LONG AS it does so to “execute the Laws of the Union, suppress Insurrections and repel Invasions.”  It cannot “govern” the Guard expect when “employed in the Service of the United States,” as per the three specific scenarios in Clause 15.

Also, there’s a very important principle known as “anti-commandeering.”  The short version?  It means that the federal government can’t force states (including their employees) to carry out federal acts.  So, should the Congress want to “provide for” the expenses and funding required to provide such benefits to people in the Texas and Mississippi National Guard, they certainly can make a constitutional argument in favor of that.  They can also build the offices and hire the people needed to administer those benefits under the “Necessary and Proper Clause” of the Constitution, Article I, Section 8, Clause 18.

They certainly cannot, however, require Texas or Mississippi state employees, acting under the purview of powers reserved to the States under the Constitution – to do this for the federal government.  They also can’t require those states to absorb the costs.  Not one penny.

As an aside, since there’s no invasion (in the 18th century constitutional sense, that means a military attack), and no insurrection, and Congress hasn’t specifically called up the Guard to execute the “Laws of the Union,” all of the state Guard troops should be retained under state control.  And that’s part of why it’s essential for states to consider and pass the “Defend the Guard Act” – http://tenthamendmentcenter.com/legislation/defend-the-guard/

Michael Boldin

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