JUNEAU, Alaska (April 17, 2024) – Yesterday, an Alaska House committee held a hearing on a bill that would empower the governor to stop unconstitutional foreign combat deployments of the state’s National Guard troops.

Rep. David Eastman introduced House Bill 373 (HB373) on Feb. 20. Titled the Defend the Guard Act, the legislation would prohibit the governor or any other person from ordering a member of the state militia, including National Guard members, from being deployed “into active service to a combat zone outside the state or to perform a duty for the purpose of supporting an armed conflict outside of the United States, no matter where that duty is performed,” without authorization by the United States Congress declaring war or calling forth the militia under Article 1, Section 8, Constitution of the United States.

The bill specifies that “militia” means both the organized and unorganized militia.

On April 16, the House Military and Veterans Affairs Committee held a public hearing on HB373, an important first step in the legislative process.

Committee members asked several questions about the bill. The first was regarding the legality of the measure. Eastman did an excellent job explaining that the governing Supreme Court case, Perpich v. U.S. Department of Defense, only limited a governor’s ability to block overseas deployments for training purposes.

Tenth Amendment Center national communications director Mike Maharrey testified, pointing out that the National Guard units were meant to serve as a domestic defense force, not as reserve units for overseas military actions. He emphasized that the role of the militia is clearly delineated in the Constitution and isn’t subject to reinterpretation based on pragmatic arguments. Maharrey also pointed out that constant overseas deployment makes Guard units unavailable to fulfill their responsibilities at home.

One committee member implied the bill should be opposed because “a lot of Guard members want to go into combat and limiting that could hurt recruitment.” One has to wonder what the desires of National Guard members have to do with the state reasserting control over its Guard troops and keeping the federal government within its constitutional war powers.


National 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, Alaska National Guard troops have participated in missions in Iraq, Afghanistan, Kosovo, and other countries.

Since none of these missions have been accompanied by a Constitutional declaration of war, nor were they in pursuance of any of the three conditions set forth in Article 1 Sec. 8, the Defend the Guard Act would have prohibited those combat deployments.


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.” Through 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 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.”

Justice Joseph Story affirmed this limited role of the state militia in Martin v. Mott (1827).

“The power thus confided by Congress to the President is doubtless, of a very high and delicate nature. A free people are naturally jealous of the exercise of military power, and the power to call the militia into actual service is certainly felt to be one of no ordinary magnitude. But it is not a power which can be executed without a correspondent responsibility. It is, in its terms, a limited power, confined to cases of actual invasion or of imminent danger of invasion.”


The founding generation was careful to ensure the president wouldn’t have the power to drag the United States into endless wars. James Madison made this clear in a letter to Thomas Jefferson.

The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legislature.

Congress has abrogated its responsibility and allowed the president to exercise almost complete discretion when it comes to war. Passage of Defend the Guard legislation would pressure Congress to do its constitutional duty.

West Virginia Rep. Pat McGeehan served as an Air Force intelligence officer in Afghanistan and has sponsored similar legislation in his state.

“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.”

Passage of Defend the Guard would also force the federal government to only use 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.

While getting this bill passed won’t be easy and will face fierce opposition from the establishment, it certainly is, as Daniel Webster once noted, “one of the reasons state governments even exist.”

Webster made this observation in an 1814 speech on the floor of Congress where he urged actions similar to the Florida 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.”


HB373 needs to be brought up for a vote and pass the House Military and Veterans Affairs Committee by a majority vote before moving forward in the legislative process.

Mike Maharrey

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



Featured Articles

On the Constitution, history, the founders, and analysis of current events.

featured articles


Tenther Blog and News

Nullification news, quick takes, history, interviews, podcasts and much more.

tenther blog


State of the Nullification Movement

232 pages. History, constitutionality, and application today.

get the report


Path to Liberty

Our flagship podcast. Michael Boldin on the constitution, history, and strategy for liberty today

path to liberty


Maharrey Minute

The title says it all. Mike Maharrey with a 1 minute take on issues under a 10th Amendment lens. maharrey minute

Tenther Essentials

2-4 minute videos on key Constitutional issues - history, and application today


Join TAC, Support Liberty!

Nothing helps us get the job done more than the financial support of our members, from just $2/month!



The 10th Amendment

History, meaning, and purpose - the "Foundation of the Constitution."

10th Amendment



Get an overview of the principles, background, and application in history - and today.