CHARLESTON, W.Va. (March 23, 2020) – Earlier this month, the West Virginia House passed a resolution calling on Congress and the president to stop sending U.S. troops off to fight in unconstitutional foreign wars.
A coalition of eight Republican delegates introduced House Concurrent Resolution 141 (HCR141) on March 5. The resolution urges the president and Congress to “take no action to employ military forces of the United States in active duty combat unless and until the United States Congress has passed an official declaration of war or has taken an official action or renewed action to authorize the use of military force.”
The resolution further declares:
“That the State of West Virginia seeks to end any periods of endless or perpetual armed conflict with no clear conditions of conclusion that risks the lives of our military members.” [Emphasis added]
On March 7, HCR141 passed on a voice vote.
The findings declare that “Although the United States Congress has not declared war in over 70 years, the nation has since gone to war repeatedly at the direction of the Executive Branch and/or acted under perpetual authorizations to use military force passed by Congress empowering the Executive Branch to engage in unending war – clearly not what the Founding Fathers intended in the Constitution.”
The resolution quotes George Washington, who wrote, ““The Constitution vests the power of declaring war in Congress; therefore, no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject and authorized such a measure.” It also envokes James Madison’s insistence that “The Constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war to the Legislature.”
The resolution declares that that “When such unconstitutional actions are taken by the federal government, it is the proper role of the states themselves to take action to remedy such situations, as outlined in the Kentucky and Virginia Resolutions of 1798.” [Emphasis added]
Like the Kentucky and Virginia Resolutions the West Virginia House cites, HCR141 is a starting point for further action. It puts the House delegates on record in opposition to unconstitutional foreign wars and acknowledges their responsibility to act if Congress won’t.
The resolution sprung out of debates on the Defend the Guard bill sponsored by Delegate Pat McGeehan (R-Hancock). The legislation 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.
After some parliamentary maneuvering, the bill passed the House Veterans’ Affairs and Homeland Security Committee. McGeehan tried another parliamentary move to spring the bill from the Judiciary Committee and bring it straight to the House floor for a vote. That move failed by a 61-37 vote due to significant opposition from House leadership.
Having gone on record asserting their responsibility to act against unconstitutional wars, the West Virginia House should move the Defend the Guard Act forward in the next legislative session.
Guard troops have played significant roles in all modern overseas conflicts, with over 650,000 deployed since 2001. Military.com reports that “Guard and Reserve units made up about 45 percent of the total force sent to Iraq and Afghanistan, and received about 18.4 percent of the casualties.” 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 at the onset of World War II.
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.
McGeehan said the states have a powerful opportunity to force a return to the proper Constitutional operation of war powers.
“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,” he said. “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.”
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.” In 1814 speech on the floor of Congress, 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.”
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