April 10, 2018 – Special Note: There has been considerable debate on Facebook regarding this position. It is my contention that the LAW, as currently written, prevents the President from using the National Guard in actions that do not have the requisite Declaration from Congress either of War OR a National Emergency.
It is important to say that this is not a discussion about whether giving that power to the President is a good idea – or the merits of using The Guard in overseas or domestic actions. The law was changed in 2007 to give President Bush wide authority to use the National Guard. All 50 Governors objected as a usurpation of power. In 2008, the law was reversed to restore the prior condition.
Below my statement, I’ve outlined the relevant section of the US Code governing the use of reserve components, the NDAA of 2007 relevant sections, and the NDAA of 2008 sections which cite repeal and restore Section 12301 of Title 10 of the U.S. Code.
If elected Governor, I’ll stop the misuse of our National Guard.
I will use every available means to prevent the President of the United States from federalizing our National Guard Troops for use in a foreign conflict that has not had a Declaration of War by the United States Congress.
Over many generations, my family has had many members serve in various branches of the military. My father served in the U.S. Navy….. grandfathers (both) in the U.S. Army. I have a niece serving now.
I believe that often we’ve been too quick to war. But, even if the conditions were such that the use of military forces could be considered appropriate — a Governor of this State should do all in their power to ensure that our National Guard protected from misuse by the President. Our Constitution relies on the Congress to pass a Declaration before the President can use National Guard Troops — whose primary mission is internal — and acts at the prerogative of the Governor.
While some believe this is radical, most would understand that the Tenth Amendment reserves powers to the States. Only under a proper Declaration of War would the President then request the cooperation of the State to bring the National Guard into Ready Reserve. The last several decades have witnessed a misuse of Presidential Authority by both Democratic and Republican Presidents. We must ensure that the blood of our men and women is not sent afield without forethought and commitment. Our representatives in Washington owe us that.
Here are the sections of Title 10, the NDAA of 2007, and the NDAA of 2008
10 U.S. Code § 12301 – Reserve components generally
(a) In time of war or of national emergency declared by Congress, or when otherwise authorized by law, an authority designated by the Secretary concerned may, without the consent of the persons affected, order any unit, and any member not assigned to a unit organized to serve as a unit, of a reserve component under the jurisdiction of that Secretary to active duty for the duration of the war or emergency and for six months thereafter. However a member on an inactive status list or in a retired status may not be ordered to active duty under this subsection unless the Secretary concerned, with the approval of the Secretary of Defense in the case of the Secretary of a military department, determines that there are not enough qualified Reserves in an active status or in the inactive National Guard in the required category who are readily available.
(d) At any time, an authority designated by the Secretary concerned may order a member of a reserve component under his jurisdiction to active duty, or retain him on active duty, with the consent of that member. However, a member of the Army National Guard of the United States or the Air National Guard of the United States may not be ordered to active duty under this subsection without the consent of the governor or other appropriate authority of the State concerned.
National Defense Authorization Act of 2007.
[For Fiscal 2007… passed October 17, 2006]
SEC. 1076. USE OF THE ARMED FORCES IN MAJOR PUBLIC EMERGENCIES.
(a) USE OF THE ARMED FORCES AUTHORIZED
(1) IN GENERAL
.—Section 333 of title 10, United States Code, is amended to read as follows:
‘‘§ 333. Major public emergencies; interference with State and Federal law
‘(a) USE OF ARMED FORCES IN MAJOR PUBLIC EMERGENCIES
(1) The President may employ the armed forces, including the National Guard in Federal service, to—
‘‘(A) restore public order and enforce the laws of the United States when, as a result of a natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident, or other condition in any State or possession of the United States, the President determines that— (continues)
[Over the objections of ALL 50 State Governors, this law was passed which allows the President, for the first time, to unilaterally order the armed forces, including the National Guard into a wide range of activities.]
National Defense Authorization Act for Fiscal Year 2008 – HR 4986 PL 110-181 Eff. 1-28-2008
(Sec. 1068) Revises federal provisions concerning the use of the Armed Forces in major public emergencies to discontinue the executive authority to deploy active and reserve personnel during domestic response incidents. Repeals the authority of the President to direct the Secretary to provide supplies, services, and equipment to persons affected by major public emergencies.
Repeal of provisions in section 1076 of Public Law 109–364 relating to use of Armed Forces in major public emergencies (sec. 1068) The House bill contained a provision (sec. 1054) that would repeal section 1076 of the John Warner National Defense Authorization Act for Fiscal Year 2007 (Public Law 109–364) and revive the provisions of sections 333 and 12304(c) of title 10, United States Code, as they were in effect prior to the effective date of that Act, and repeal section 2567 of title 10. The Senate amendment contained a similar provision (sec. 1022).
The Senate recedes.
SEC. 1068. REPEAL OF PROVISIONS IN SECTION 1076 OF PUBLIC LAW 109-364
RELATING TO USE OF ARMED FORCES IN MAJOR PUBLIC EMERGENCIES.
(a) Interference With State and Federal Laws.– [details not shown]
(b) Repeal of Section Relating to Provision of Supplies, Services, and Equipment.–
(c) Conforming Amendment.–Section 12304(c) of such title is amended by striking “Except to perform” and all that follows through “this section” and inserting “No unit or member of a reserve component may be ordered to active duty under this section to perform any of the functions authorized by chapter 15 or section 12406 of this title or, except as provided in subsection (b),”.
(d) Effective Date.–The amendments made by this section shall take effect on the date of the enactment of this Act.