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The U.S. Congress has the sole authority to declare war. It cannot be delegated, and Governors have the responsibility to resist activation of the National Guard for overseas combat roles if Congress unconstitutionally delegates its sole authority to declare war to the President.
What is the “Defend the Guard Act?”
This act is a necessary step to realign the Government of Montana and the Federal Government back to the U.S. Constitution. It is state-level legislation to prohibit the overseas deployment of the state’s National Guard units to foreign wars without a congressional declaration of war.
What does it do?
More specifically the act says the Department of Defense serving as the executive agent for the federal government under the President of the United States must abide by the U.S. Constitution’s requirement that only the U.S. Congress can declare war pursuant to Article I, Section 8.
“To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water”[i]
Why is it Needed?
The U.S. Constitution as the supreme law of the land vests the power to declare war exclusively in the US Congress. This clear letter of the law has been bypassed or ignored for years. Congress has repeatedly abdicated its duty by unconstitutionally delegating its authority to the executive branch. This violates the separation of powers. We need to return to the design of the US Constitution. If we are willing to ignore the letter of the law on the most crucial decision a nation makes, then what else will be ignored?
To put it simply, Congress Declares war and the President executes the war as Commander in Chief (Art II, Section 2). The two functions were never meant to be delegated in either direction. The President cannot declare and execute the war on their own. That’s something you see in dictatorships. This is a Constitutional Republic, and those decisions are made by the people through representatives. The law is clear on this, we all must accept the risk of war and stand behind that effort. Today’s expeditionary military mindset looks more like the time of the Roman Empire, where those in uniform served at the whim of the emperor, not at the will of the people.
What is its Foundation?
The Constitution of the United States of America is the foundation for the Defend the Guard act. Article I, Section 8 does not leave any wiggle room. Congress and Congress alone has this power, it cannot be delegated. The reason is that our Founders were wise enough to know that Congress is the body of government closest and therefore most responsive to the people.
The US Constitution, therefore, does the following:
a. Requires Congress to declare war.
b. Requires the President (Commander in Chief) to prosecute the war.
c. Requires by logical extension that through the laws of this union that the National Guard only be deployed to overseas combat by approval of Congress and no other.
The other critical component of the foundation of this argument is the 10th Amendment of the US Constitution.[ii] It is the duty of the states to interpose between the states and the federal government when the federal government takes part in unconstitutional actions.[iii] To violate Article I, Section 8 of the constitution is an unconstitutional action.
Defining the Guard/Militia
In the U.S. Constitution, Article I, Section 8, the militia is also addressed - specifically in Clauses 15 and 16. These same clauses are the basis for the formation of the National Guard. The Army National Guard even emphasizes this fact in their charter.
“The Army National Guard's charter is the Constitution of the United States. Article I, Section 8 of the U.S. Constitution contains a series of ‘militia clauses,’ vesting distinct authority and responsibilities in the federal government and the state governments.”[iv]
Clause 15 Delegates to the Congress the power for the calling forth of the militia (National Guard) in three situations:
a. to execute the laws of the union,
b. to suppress insurrections, and
c. to repel invasions.[v]
The militia was formerly known as “the whole people, except a few public officers.”[vi] This was further understood as all able-bodied males between 16 and 45 and up to 55 years of age. The Dick Act of 1903 then limited the scope and scale of this definition to control the extent to which militias could be called into Federal Service.[vii]
Therefore, the militia is the National Guard and is governed by Clauses 15 and 16 as it pertains to the role of the US Congress and the states.
What about Authorizations for the Use of Military Force (AUMFs)?
The United States has not declared war since World War II. Yet we spend decades at war anyway. Korea, Vietnam, Iraq, Afghanistan, Syria, Somalia, Libya, the Philippines, and other locations around the world have seen Americans in conflicts Congress never truly authorized. Even post-9/11, no war was declared. Presidents Bush, Obama, Biden, and Trump have all leveraged these authorizations. Though this is changing under the new Trump administration.
The simple answer is the AUMF subverts the constitutional process by having congress delegate powers to the President it is not allowed to delegate.
What about H.J.Res.542 – [The] War Powers Resolution?[viii]
The War Powers Resolution of 1973 is itself not constitutional. Here’s the timeframe:
a. The President must inform Congress within 48 hours of committing armed forces to action.
b. Forces are prohibited from remaining in combat for more than 60 days without congressional approval.
c. There is a 30-day withdrawal period if Congress does not authorize those forces to remain deployed.
d. This means forces can remain in combat for up to 92 days without congressional approval.
The resolution was intended to give the President the ability to respond rapidly to situations that might be of concern to the United States’ national security. In fact, it gave the President the power to embroil America in conflicts to the point where we would be a nation at war and only have the choice to win or lose considering how much can happen in 92 days.
Engaging in an armed conflict based on the discretion of only the President is not how America is supposed to work. To call the National Guard into such a conflict based on the War Powers Resolution is to build a decision on the sand. We did not authorize the three branches of government to have the power to delegate their sole responsibilities to other branches of government. This resolution only highlighted the violations of the separation of powers.
The Threats Used Against this Constitutionally Based Bill.
a. Base Realignment and Closure (BRAC)
There might be threats from the Pentagon to close bases in Montana if we follow through. This is called Base Realignment and Closure (BRAC). The real threat they are trying to leverage is the economic impact on locations that have federal military bases. Having been through this process more than once, I can guarantee it is not as easy as a phone call. It is a large movement of many agencies of government and Congress. Not only are there many people involved in these decisions that can take years, but the cost and logistics of a base closure also make the threat nearly an empty one. For Montana specifically, Malmstrom AFB is a significant strategic base with responsibilities that would be near impossible to move.
Montana has an opportunity to lead and join Virginia to show other states that the clear direction of the constitution matters. In doing so other states might follow the same path and send a message that will be clearly understood. We should not bow to bullying and call their bluff instead.
b. National Security is At Risk
It is not. In fact, if we need to go to war overseas immediately, then Congress can vote immediately too. Technology allows for this, and they can make it happen if it is truly needed.
This resolution means that the National Guard can be activated when Congress does its job. If the US is invaded then the National Guard will respond, as in this bill we are only focused on overseas combat deployments.
The greater risk to our nation’s security is to continue to allow Congress to “pass the buck” and ignore the constitution.
c. The Courts
The Supreme Court has not settled this, and as the weakest of the three branches of government, it can render an opinion only. However, what is case law now is that the federal government can activate the National Guard for overseas training but does not address activating the National Guard for overseas combat. See Perpich v. The Department of Defense.[ix]
Even if Congress did try to create legislation to add that the federal government can activate the National Guard for overseas combat, the Governors would have to block that activation until Congress made a formal declaration of war. Technology can make this a fast process and if governors saw the declaration as more likely than not they are free to issue warning orders to the state’s National Guard units to prepare them for mobilization.
d. Funding and Equipment Restrictions or Removal, To Include Pay and Benefits removal for those still serving, and the retired
Much like the threats to close bases, this threat is not convincing or likely to realize.
More importantly, the constant threat of removing funds is driving bad decisions and policies across America. Funds come with strings attached. The Montana legislature should not too quickly toss aside the foundational tenets of the US Constitution because of threats concerning money or equipment.
Again, call their bluff and do not be bullied, threatened, or coerced.
e. Does not conform with the US Constitution
You will likely hear that this bill does not conform to the U.S. Constitution, this is a false statement. The Supremacy Clause does not mean that the federal government is supreme in all things. It means that laws that are passed “in pursuance of” and abiding by the constitution are supreme. House Bill 404 is before this committee specifically because the federal executive authority has operated outside of constitutional limits and Congress continues to allow this despite the clear reading of the highest law.
You may also hear that this bill would raise issues of constitutional conformity issues. Yes, it will. This bill is intended to place government back into the bounds of constitutional authority, therefore the question of conformity to the constitution is the whole point.
The Higher Principles
The US Constitution is the highest legal authority in the land. Article I, Section 8 of the Constitution is clear. We the people are the enforcers of the contract that is the U.S. Constitution. We as principal agents delegate power, and those who delegate power can remove that power. The government is our agent and cannot operate against our contract, or further delegate the powers we’ve limited them to in the first place. Montana can and should lead in this effort. I call on the legislature and the Governor to instead rise in courage and let the constitution be enforced as it is the highest law of the land. This is what it looks like to exercise the 10th Amendment, Montana should lead this effort, not follow.
“The safest way to make laws respected is to make them respectable.” ― Frédéric Bastiat[x]
The Oath of Office
To all who have worn the uniform and still do, you recited the Oath of Office, I remind us all of that oath.
I do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion.
So help me God.
We are sworn to support and defend the constitution, not Congress, not the President – only the constitution. When we took that oath we were never allowed to ask if doing so would be easy. The legislature should know that those who take this oath back this house bill as it is part of us holding to our oath and not being swayed by bribery, or coercion.
Key Quotes
“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.” James Madison[xi]
“In the general distribution of powers, we find that of declaring war expressly vested in the congress, where every other legislative power is declared to be vested; and without any other qualification than what is common to every other legislative act. The constitutional idea of this power would seem then clearly to be, that it is of a legislative and not an executive nature …Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded. They are barred from the latter functions by a great principle in free government, analogous to that which separates the sword from the purse, or the power of executing from the power of enacting laws.” James Madison[xii]
"The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.1 The governor of New York, on the other hand, is by the constitution of the State vested only with the command of its militia and navy." Alexander Hamilton[xiii]
The states “have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them. James Madison[xiv]
“The executive has no right, in any case to decide the question, whether there is or is not cause for declaring war.” James Madison[xv]
[i] https://www.archives.gov/founding-docs/constitution-transcript
[ii] https://constitution.congress.gov/browse/amendment-10/
[iii] https://encyclopedia.federalism.org/index.php/Interposition
[iv] https://www.hsdl.org/c/abstract/?docid=439888
[v] https://constitution.congress.gov/browse/essay/artI-S8-C15-1/ALDE_00001077/
[vi] https://press-pubs.uchicago.edu/founders/print_documents/a4_4s9.html
[vii] https://publiushuldah.wordpress.com/category/dick-act-of-1903/
[viii] https://www.congress.gov/bill/93rd-congress/house-joint-resolution/542
[ix] https://www.law.cornell.edu/supremecourt/text/496/334
[x] https://www.goodreads.com/author/quotes/89275.Fr_d_ric_Bastiat
[xi] https://press-pubs.uchicago.edu/founders/documents/a1_8_11s8.html
[xii] https://press-pubs.uchicago.edu/founders/documents/a2_2_2-3s15.html
[xiii] https://avalon.law.yale.edu/18th_century/fed69.asp
[xiv] https://tenthamendmentcenter.com/2016/12/15/james-madison-four-steps-to-stop-federal-programs/
[xv] https://founders.archives.gov/documents/Madison/01-15-02-0070
