01 : Do the states have a role in the decision to send U.S. troops overseas?
Under our system of federalism, the role of states is grounded in the Tenth Amendment to the U.S. Constitution. It affirms that “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.” It was the intent of the Founding Fathers that the states could and should weigh in on significant matters of policy.
"Defend the Guard" legislation does not nullify federal law. It only obligates the federal government to follow what is already federal law — Congress' duty to declare war — as outlined in Article I, Section 8 of the U.S. Constitution.
02 : How can state legislatures participate in the movement to bring our troops home and restore constitutional war powers at the federal level?
By passing "Defend the Guard" legislation, state governments can block the use of their National Guard units from being deployed into active combat overseas unless such action has been sanctioned by a formal declaration of war by the U.S. Congress.
Over 45% of the soldiers deployed in the Global War on Terror have been National Guardsmen. By withholding this resource of manpower, states can obligate the federal government to reign in its endless wars and ensure that the U.S. Constitution is followed.
03 : How does this legislation respond to the currently accepted method of Congress adopting an Authorization for Use of Military Force (AUMF)?
The enactment of an AUMF is a shameful political dodge that defers ultimate decision-making to the Executive branch. By abdicating their responsibility, Congress is refusing to exercise its duty under the U.S. Constitution.
Under "Defend the Guard" legislation, an open-ended AUMF is not considered to be an Article I declaration of war.
04 : Has such legislation ever been introduced or passed by any state?
"Defend the Guard" legislation, to prevent the deployment of National Guard units into active combat absent a formal declaration of war by Congress, was first introduced in 2015 in the West Virginia House of Delegates by Pat McGeehan (R-Hancock) and has been introduced in that chamber every year since. Del. McGeehan, who formulated the concept of "Defend the Guard," is a graduate of the U.S. Air Force Academy and served as an Air Force Intelligence officer across the Middle East.
In 2019, a motion to bring the legislation from committee to the House floor for final action received bipartisan majority support. However, the Speaker of the House refused to bring the bill up for a final vote, and it died when the Legislature adjourned later that year.
In 2020, "Defend the Guard" received a tied vote on the House floor, 50-50. The bill was adjourned sine die due to the onset of the COVID-19 pandemic.
05 : Has the Supreme Court ruled that a state can ignore the demands of the Pentagon and the federal government?
In 1990, the U.S. Supreme Court ruled that “Congress may authorize members of the National Guard of the United States to be ordered to active federal duty for purposes of training outside the United States without either the consent of a State Governor or the declaration of a national emergency.”
“The question presented,” the late Justice John Paul Stevens wrote for the unanimous majority, “is whether the Congress may authorize the President to order members of the National Guard to active duty for purposes of training outside the United States during peacetime.”
Or as Norman Beckman, Professor of Political Science at Howard University and Assistant Director of the U.S. Advisory Commission on Intergovernmental Relations, observed: “The decision dealt only with the authority for calling Guard units for two weeks of active-duty training.”
"Defend the Guard" legislation addresses an entirely separate issue — whether a state can withhold its National Guard units from overseas combat deployments or combat-support operations absent a congressional declaration of war — that has not been tested by the courts. Three decades later, based on the writings of a majority of the current justices of the U.S. Supreme Court, we believe "Defend the Guard" legislation will be upheld if challenged.
06 : Is this movement likely to spread in 2021 and beyond?
Absolutely. To date, legislators in seventeen states have introduced "Defend the Guard" bills, with legislators committed in multiple other states to do so in the coming weeks. We hope to see such legislation introduced in as many as thirty states by the conclusion of the 2021 legislative session.