These Bills Would Keep the National Guard Out of Unconstitutional Wars

“Defend the Guard” laws would keep state troops out of conflicts that Congress hasn’t authorized.


According to the Constitution, Congress has the sole power to declare war—but that hasn't stopped presidents from sending U.S. troops to many conflicts that haven't been congressionally authorized. Now state lawmakers across the country are introducing legislation that could challenge unconstitutional deployments.

"Defend the Guard" legislation would allow state governments to prevent their National Guard units from being deployed into conflicts abroad unless U.S. military involvement has been officially authorized by Congress through a declaration of war. "Over 45% of the soldiers deployed in the Global War on Terror have been National Guardsmen," notes Defend the Guard, a project of BringOurTroopsHome.US. By withholding this manpower, Defend the Guard notes that states could compel the federal government to limit "its endless wars and ensure that the U.S. Constitution is followed."

Congress last issued a declaration of war in 1942, during World War II. The U.S. military footprint abroad has ballooned in the 80 years since. Active-duty American soldiers are involved in counterterrorism training missions in 65 nations and are engaged in direct-fire combat operations in 14 of them. The U.S. conducts drone strikes in seven countries.

None of these activities have been explicitly authorized by Congress, but many have been made possible through Authorizations for Use of Military Force (AUMFs) issued in 2001 and 2002. The AUMFs give the president broad discretion "to use all necessary and appropriate force" against "nations, organizations, or persons" determined to have been involved in the September 11 attacks. The 2001 AUMF has been used to justify 41 operations in 19 countries, while the 2002 AUMF hasn't been the sole authorization used in any military force since 2011.

Defend the Guard legislation seeks to hobble this presidential carte blanche. Lawmakers in Arizona, Idaho, Kentucky, Oklahoma, and other states have introduced bills in the past month that would keep their National Guardsmen out of unauthorized conflicts. Should these bills pass, the federal government would still be able to deploy the National Guard to other states or send them to training missions abroad, among other explicitly constitutional activities. A 1990 Supreme Court decision ruled that the federal government could deploy a state's National Guard for peacetime training purposes without a governor's approval.

In conflict deployments, however, Defend the Guard legislation would require that "congressmen put their names on the dotted line before they ask our soldiers to put their boots on the ground," as BringOurTroopsHome.US founder Dan McKnight writes. The U.S. House voted last year to repeal the toothless 2002 AUMF, though rolling back the 2001 AUMF—a key justification for presidential war making—has proven much thornier in Washington. For now, the executive branch has a lot of latitude in how it conducts wars, and Congress has not reclaimed its rightful war powers.

James Madison wrote in a 1798 letter to Thomas Jefferson that the executive "is the branch of power most interested in war," and "most prone to it." That propensity is dangerous in combination with a Congress uninvolved in declarations of war. State lawmakers have a valuable tool at their disposal in Defend the Guard legislation, and in 2022, they may begin to wield it.

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  1. What a great plan to get the federal government to expand the permanent armed forces and cut Guard funding. Then the state governments will have to fund all the costs of using the guard for 'natural disasters'.

    1. I'll do you one better. Send the heroic Capitol Police to fight, they seem quite good at shooting unarmed women...

    2. Lbtf--
      Out-of-State taxpayers would have no reason to support a local "national guard" that was not available for the national interest.

  2. I just cannot see a downside to this, unless of course you like an all powerful chief executive who can rule by fiat and send soldiers wherever and whenever to do their bidding.

    As for congress abrogating its responsibility, that is been the norm for quite some time now.

    1. IDK, the way it's written feels very 'false opposition' to me.

      If they wanted to keep the guard out of wars, they'd just say "The Guard goes when/where (on American soil) the Governor and/or state representatives say, and no one (and no where) else." The summary proposed stance carries an obvious 'end around' or gray area where Congress doesn't declare war but still orders the mobilization of the guard. Maybe some of the specific revisions are more along these lines but generally, Congress still has the ability to conscript and send people to war (even without declaring it).

      1. Good points thank you.

        Congress rolled over and has deferred to the POTUS [or "POOTUS" in our current administration] for generations. I agree that any meaningful legislation would defer the decision making authority to the individual States.

        Can you imagine? It would be like living in a federal republic or some such craziness.

  3. Maybe keep the entire military out of unconstitutional wars. Perhaps just enforce the constitution?!?!

    1. That Constitution; making presidents and legislators lives more difficult since 1789; but increasingly they've seemed to have managed to get around it for the most part.

      This got me to wondering, what do progressive thinkers think about the Constitution?

      "The U.S. Constitution is hopelessly outdated. It’s time to re-envision it" Salon, 12/2020

      "Our Constitution Has Failed: It’s Time for a New One"
      Expert Form Law and Policy Analysis January 2021

      "America's Constitution is terrible. Let's throw it out and start over.
      Here are five radical ways to fix our broken democracy" The Week 01/2018

      "Time to Update the Language of the Constitution [to celebrate diversity and inclusion]" University of Texas News, July 2020

      "Has the U.S. Constitution Reached its Expiration Date?" [Harvard, Cambridge, MIT] 2020

      None of these authors can possibly imagine that say, overhauling the First Amendment, would in any way adversely affect them. Because they have absolute belief in the superiority of their beliefs and the inevitability of progress of same

      1. Here are five radical ways to fix our broken democracy

        Numbers 1 through 5 will astound you! ROFLMAO!

        1. They'll leave you speechless!

    2. Few objected on Constitutional grounds when President Jefferson sent the US Navy against the Barbary pirate states in 1801, even though most of those who drafted or ratified the Constitution were still alive. There was always an understanding that Congress did not have to be called into session to deal with minor police actions, eg against pirates or minor Indian (aboriginal) tribes.
      (2) The undeclared Korean War (1950-53) was a major war in terms of blood and cost, but we did not want to declare and start a general war against the great powers behind it: China and Soviet Russia.

      1. "Declaring war" is an administrative action and has nothing to do with troops being sent anywhere, which is the exclusive purview of the Commander in Chief.
        Remember Hanoi Jane Fonda, on the ARVN antiaircraft gun?
        Why wasn't she charged with treason?
        Because the administrative necessity of declaring war hadn't been completed.
        If the CoC doesn't send the armed forces, Congress has no power to do so, declared "war" or not.
        The most Congress can do, under the Constitution, is refuse to provide further funding for our troops deployed into harms way...something they are generally loath to do.
        This argument about Congress declaring war is sophistry.

  4. I mean, if the Constitution itself can't do it...

    1. Perhaps we need an inanimate carbon rod.

  5. What about the War on Asian Hate?

  6. seems like a Fed power grab.

    >>That propensity is dangerous in combination with a Congress uninvolved in declarations of war.

    uninvolved because invested in.

  7. You have to assume that there are many in the political class who think the AUMF is unconstitutional and are willing to die on that hill. Remember when the Democrats had the presidency under Obama, they decided they did not even need Congressional authorization to act against Syria.

    Unless there is someone in government willing to enforce this, it is useless.

    1. Fuck, under biden. One of the dipshit's first acts, other that signing dozens of executive orders, was to authorize bombing Syria. Am still uncertain as to the military reason for this.

  8. Let's see...the Constitution gives Congress the power

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

    Foreign adventures aren't listed here, but not to worry...Congress, the Pres, and the courts allow active militia members to be drafted in their individual capacities. No wonder they don't call it the militia anymore but the National Guard...they've gone beyond that silly Constitution.

    1. What's "Laws of the Union" if not a law giving the Prez power to ship the Guard overseas?

      1. Interesting take, but it would make the insurrection/invasion language superfluous, wouldn't it? If they can pass a law to ship the militia overseas, they can certainly pass a law to repel an invasion or suppress an insurrection. They would only have had to specify that Congress can provide for using the militia to execute the laws of the Union.

        As my grandpappy used to say, "expressio unius est exclusio alterius." When I asked him what that meant, he explained that "no fishing on Saturday or Sunday" means you can fish on other days.

    2. Notice that there is nothing in there about the militia having to respond to the call. They can say no.

  9. That link to declarations of war with the "1942" got me curious. It was against Bulgaria, Hungary, and Romania, on June 4, 1942.

    Just above it are three entries: Germany and Italy on Dec 11, then Japan Dec 8. Odd they are not in date order -- I think whatever sorts them sorts as a string, where "8" comes after "1". Silly web developer.

    1. It's sorting 2 digit numbers different than 1 digit. 111111 would come before 8 as well. They need to use 08 to be apples to apples with 11.
      Maybe that is what you were saying though.

  10. When mystical conservatives speak of States Rights they mean lynching blacks, banning liquor, shooting hippies & latinos and hunting down pregnant females to force them into involuntary labor and servitude. But the the very last clause of Section 10 in Article I empowers the States to defend themselves if "actually invaded, or in such imminent Danger as will not admit of delay." A nuclear warhead streaking inward faster than sound requires ready Second Amendment rights exercised by States built to last.

    1. Question: Does anyone know what the fuck this dude is talking about? I don't mean now. I mean, like... ever? I feel like I'm missing a bunch of references, or like there's some sort of inside joke I'm not getting, but one that's not actually funny.

      In fact, it's sometimes just a weird word salad to me. If this were a Chapps brothers cartoon he'd be Senor Cardgage. Or maybe there's a little Homsar thrown in. "Don't look now, I'm just a friendly reminder!" "Iiiii'm a song from the sixties!"

      1. It's an idiot, and really well worth blocking.

        1. Yeah, and that will keep me from confusing him with you, Iron Hank.

      2. I think this is what happens when someone ODs on heroin, stops breathing for 15 minutes or so, and then gets revived, over, and over, and over. Each time, a little more of their brain dies until they have the cognitive abilities of a bag of rocks, sort of like "I used to drive trucks, mine coal, kick Corn Pop's ass, and get arrested in South Africa between having lunch with my segregationist buddies" Joe Biden.

  11. We shifted critical duties to the national guard to make deployment more difficult.

    So now we deploy the national guard.

    This quick fix won’t be any more effective.

  12. Declaring war is basically prohibited by the United Nations charter. And ratified treaties trump legislation so the only way to prohibit the guard from being deployed overseas (involuntarily) is via a new constitutional amendment.

    1. Treaties do not trump legislation. This has already been demonstrated with marijuana legalization.

      1. Yes they do. The international mariuana treaties require enabling legislation and are enforced by individual nations. The UN Charter specifically creates a lot of rules for war to be 'legal' - enforced by the Security Council. The US would obviously be able to veto anything they do in response to us declaring war on somebody - but that has huge irreparable reputational damage for us.

  13. Pass these laws all you like; they won't work. The idea that the Supreme Court ruling in Perpich v. Department of Defense (1990) left room for this sort of legislation is utterly ridiculous.

    Yes, technically, the National Guardsmen sent to Honduras (with civil wars ongoing in every neighboring country) were on an "active duty training mission" instead of ordinary "active duty", so you can sort of pretend to yourself that the unanimous Supreme Court ruling isn't literally on-point.

    However, the specific ruling in Perpich v. Department of Defense was that when Federalized, the National Guard is part of the Army, not the militia, and therefore as a constitutional matter is entirely outside the jurisdiction of the states.

    Now, a specific Federal law does grant a special federal statutory right of a state governor to object to federalization of the local National Guard for active duty or active duty for training. However, the 1986 amendment to the law (which was an issue in the case) prohibited such objections on grounds of the location, purpose, type, or schedule of such duty. The Supreme Court ruled that the statutory right was not based on any constitutional right of the state, and therefore could be limited however Congress wished.

    And it's hopefully obvious to everyone that a governor objecting to a mission on the grounds that it's combat rather than training would be an objection on the grounds of "purpose" or "type" of duty, which means it is outside the statutory right.

    In short, these laws are a waste of time and effort. They will not bind the Federal Government, and any state that tries to go to court over them will be told, "Actually read Perpich v. Department of Defense, dipshit."

    1. The Constitution states that "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States..."
      You can't change that by simple law, but only with a Constitutional amendment.

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  15. Great idea! Congress will of course respond by hiring more mercenaries and civilian contractors, and increasing the federal budget and taxes.

  16. Good luck getting a curb on the President's Commander in Chief Powers without a constitutional amendment.

    State governments seem to be overflowing with people who have never studied the US Constitution, and have no idea about the American form of government.

    Lawyers and News Media benefit greatly.

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