Several state governors exercised their constitutional authority and refused to deploy National Guard units to Washington D.C. during the recent civil unrest due to concern that they might need those troops int their own states.

This underscores the power governors have over their state militia units.

Governors in Virginia, New York, Pennsylvania and Delaware all turned down requests from Defense Secretary Mark Esper to send troops to help with security in Washington D.C.

During a press conference, Governor Mario Cuomo said New York Guard units were focused completely on the Empire State.

“I don’t know what requests they’ve gotten, but I can tell you this, I wouldn’t grant any request to send National Guard out of the state at this time because I want them in this state in case we need them.”

Virginia Gov. Ralph Northam also expressed concern about needing troops to deal with violence in his own state, along with Pennsylvania Gov. Gov. Tom Wolf. Wolf’s spokesperson told CNN, “The National Guard currently has significant resources deployed across Pennsylvania. Their current priority is assisting commonwealth municipalities in their response to de-escalate violence and keep our communities safe.”

These governors raise a legitimate point that we should also consider when the Pentagon sends National Guard units to fight in unconstitutional foreign wars. The National Guard is first and foremost the state militia. Its primary role is to serve the state. National Guard troops can’t be in two places at once. When the Pentagon shuffles them off to Washington D.C. or Iraq, they aren’t available at home.

This has played out in real-life. Guard units on the gulf coast were dangerously thin when Hurricane Katrina pounded New Orleans. As a Slate article put it, ” Some 6,000 guardsmen from Louisiana and Mississippi looked on from Iraq as Katrina twisted through the Gulf, 7,000 miles and nine time zones away.”

The article describes the impact of Guard deployments to the Middle East crippled disaster preparedness at home.

“A year into the Iraq war, guard leaders and governors across the political spectrum were warning that state guard units had been dangerously thinned out by overseas deployment. Officials feared being ‘caught short-handed if an emergency flares up,’ according to the Associated Press. The bland bureaucratese of an April 2004 report by the General Accounting Office did not hide harsh conclusions: Overseas missions were draining the guard of its troops, particularly in expert specialties. Fifteen states had 40 percent or more of their Army National Guard soldiers mobilized or deployed, and some as many as one-third of their Air National Guard units. With 59 percent of its guard alerted, mobilized, or deployed, hurricane-prone Louisiana had the third-highest rate in the country. Personnel transfers could build up numbers, but only 68 percent of the guard’s required service members were qualified in the specialties to which they were assigned. Absent equipment also posed intractable problems. The guard had already transferred materiel from domestic units to underequipped units being sent to Iraq. Mississippi’s 223rd Engineer Battalion, for example, tasked with repairing hurricane damage, returned home from Iraq, but its equipment stayed abroad, inherited by newly arriving troops. Only five of its 26 helicopters remained in the state for rescue, relief, and security operations.”

Just like four governors refused a domestic deployment to D.C, governors could also refuse to release units for deployment into unconstitutional wars.

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.

1. to execute the laws of the union,
2. to suppress insurrections, and
3. to repel invasions.

The Constitution requires Congress to declare war before the president can commit troops to any offensive military action. It logically follows that under the “laws of the union,” a constitutional deployment of National Guard troops to an overseas combat zone can only occur after a congressional declaration of war.

State governors should not facilitate unconstitutional actions. And they clearly have the authority not to.

One way to hold governors accountable is to pass state legislation titled “Defend the Guard.” It would prohibit deployment of the state’s Guard units into foreign combat zones without a declaration of war.

Mike Maharrey

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