Defend the Guard: South Dakota Committee Passes Bill, Moves to Full Senate

PIERRE, S.D. (Jan. 29, 2025) – A South Dakota Senate committee has approved the Defend the Guard Act, taking a crucial first step toward prohibiting the deployment of troops into combat without a congressional declaration of war, as required by the Constitution. The bill is now eligible to move to the full Senate for consideration.

Senate Bill 82 (SB82), filed by Sen. Tom Pischke, Rep. Aaron Aylward and 15 cosponsors, would prohibit the governor from releasing any unit or member of the South Dakota National Guard into “active service participating in an armed conflict in a foreign nation” unless Congress passes a “formal declaration establishing a state of war” as required by Article I, Section 8, Clause 11 of the Constitution, or if Congress “has taken official action to explicitly call forth” the Guard under Article I, Section 8, Clause 15 of the Constitution.

On Jan. 29, the Senate Military and Veterans Affairs Committee passed the bill by a vote of 3-1-1.

MILITIA CLAUSES

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 a portion of 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.

For instance, during the Virginia ratifying convention, Madison asserted, “Congress ought to have the power to establish a uniform discipline throughout the states, and to provide for the execution of the laws, suppress insurrections, and repel invasions: these are the only cases wherein they can interfere with the militia.” [Emphasis added]

DECLARE WAR

The founding generation was careful to ensure the president wouldn’t have unilateral power to drag the United States into war. Instead, that power was delegated exclusively to the representatives of the people and the states – in Congress. 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.”

Article I, Section 8, Clause 11 of the Constitution delegates the power to “declare war” to Congress.

At the time the Constitution was ratified, the power to “declare” war was widely understood to mean changing the state of things from peace to war.

Most people today think that the term “war” in the Constitution only means an all-out war with another country. In their view, more limited military operations that fall short of total war don’t need congressional authorization. But as Constitutional scholar Rob Natelson noted, the founders didn’t make this distinction.

“Founding-Era dictionaries and other sources, both legal and lay, tell us that when the Constitution was approved, ‘war’ consisted of any hostilities initiated by a sovereign over opposition.  A very typical dictionary definition was, ‘the exercise of violence under sovereign command against such as oppose.’”  (Barlow, 1772-73). [Emphasis added]

When placed within the definition, all offensive U.S. military actions qualify as “violence under sovereign command.” Furthermore, military operations, whether for strategic, political, or humanitarian purposes, are always “over opposition.”

It’s also important to note a country can change the state of things from peace to war with a formal declaration, but it can also happen with the execution of military actions, however limited.

Simply put, any offensive measure requires congressional authorization, not just full-scale wars.

This is exactly how the Constitution was understood – and followed – by the first four presidents – Washington, Adams, Jefferson, and Madison.

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.”

DUTY

Congress has abrogated its responsibility and allowed the president to exercise almost complete discretion when it comes to war. Passage of the Defend the Act legislation would ban the state from helping Congress and the executive violate their duties to uphold the Constitution.

While getting this bill over the finish line 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 South Dakota 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.”

WHAT’S NEXT

SB82 will now be eligible for a debate and vote in the full Senate.

Tags: Defend the Guard, Miltia, National Guard, SB82, South Dakota, war, War Powers