State of Emergency:
The Forced Federal Conscription of the National Guard

By John Dowlin

Historically, during a homeland emergency, the first responders have been the National Guard. Recall the Blizzard of 1888, the Johnstown Flood, Hurricanes Andrew & Floyd…. Following 9/11, two fighter jets scrambled within minutes from an Air National Guard base in Falmouth, Mass., while units from the D.C. National Guard were first to respond in Washington. But who'll be there for us in the next emergency? Following Hurricane Katrina, where was the help? With 30,000 National Guard troops now deployed abroad — 35 to 40% of our troops in Iraq are Guard members — who'll be the quick responders for the next local disaster, be it a tornado, a forest fire, a hurricane or terrorist threat?

What's become of our national Guard? The question keeps surfacing in the news:

“Sending large numbers of National Guard members to fight in a civil war thousands of miles away is contradictory to the main purpose of the Guard,” writes Edwin Andrews of Malden, Ma. (NY Times April 12,'07). In response to Philadelphia's horrific crime rate — one murder a day since Jan.1,'07 — the mayoral candidate most likely to take office in Jan.'08, Michael Nutter, has said he will declare an emergency on his first day in office. Last year in Philadelphia, 406 people were killed by illegal guns. “Tell {Gov. Ed} Rendell to bring in the Guard,” Albert Smith told an Inquirer reporter (April 12,'07). Following the tornado in Kansas, Gov. Kathleen Sebelius stated once again that “we have a looming crisis on our hands” when it comes to the National Guard in Iraq and our needs here at home. “A Dangerously Depleted Guard,” headlines a recent NY Times editorial (May 20,'07).

One might ask, of the 511,000 elected officials in the United States, who's rigorously in charge? Where're the “green mountain defenders” who'll imagine, best anticipate the next disasters? Our Commander-in-Chief (“a decider of decisions, not a learner of lessons” writes a senior editor at the Nyer) might beg to differ, reminding us that he's in charge. But is he? “More than 1.7 million carloads of dangerous substances move annually on freight trains across the U.S. through hundreds of towns and cities,” reports Robert Black for the Wall Street Journal (Jan.28,'04). “About 28% of these pass through Washington…” To demonstrate our nation's vulnerability, Greenpeace hired several graffiti artists to tag a number of carloads not far from the White House. “See,” one of them whispered, “it wouldn't be hard for… al Qaeda to wait right here for the right train with the right poison and bang! ‘Goodbye Washington!'”

“As we face extended deployments and the ever-present threat of another Katrina or 9/11,” writes Adam Giuliano, “today it is the executive power of the governors that most ably can, and should, challenge the war's real cost….” Giuliano is the author of Emergency Federalism: Calling on the States in Perilous Times, a well-researched, compelling paper which appeared earlier this year in the University of Michigan Journal of Law Reform (Winter '07). In 58 pages he explores the relevance of federalism within the context of the ‘War on Terror' and the aftermath of Katrina, demonstrating that an increased role by the states should promote both national security and individual liberty. “For states to significantly contribute towards fighting a more effective, more liberty-conscious War on Terror, they must first be empowered by a constitutional doctrine that explains why federalism applies and how it operates given the particularities of terrorism.”

Since Katrina, when Louisiana's Governor Blanco refused to relinquish control of her state's National Guard to the President, a Congressional debate has focused on 1) the National Guard Empowerment Act (introduced in 2006 as S-2658 and strongly supported by Vermont Senator Leahy), which would strengthen and enhance the Guard for local emergencies under direct control of the Governors and 2) amendments to the Insurrection Act which would allow the President to use the armed forces and the National Guard's 500,000 members to carry out law enforcement without the consent of the Governors.

Germane to the debate, Giuliano identifies a negative loop whereby 1) “Guard units are diminished {deployed abroad}, 2) a disaster then occurs that shows state resources are inadequate, which 3) leads to calls for increased national involvement to compensate for those state deficiencies that resulted in part from national decisions.” Florida Governor Jeb Bush cements the point: “If you {nationalize} the emergency response to catastrophic events, all the innovation, creativity and knowledge at the local level would subside.”

The intricate tug, if not outright struggle, between the Guard and the Department of Defense is hardly new. It's been ongoing on for close to 200 years. Let's take a look, briefly, at some of the standoffs between local Militia and the Department of War. In 1812, during the British-American War, the Ohio Militia led by General William Hood refused to cross into Canada on the grounds that under the Constitution militia could be used only to repel an invasion, not invade enemy territory. Later the New York Militia refused to enter Canada. During the Mexican War (1848) several governors refused to allow their state forces to enter Mexican territory. During the Spanish-American War,1898, President McKinley called for volunteers from within the state militias. The Volunteer Act enabled existing regiments of the organized militia to volunteer en masse. “After this process,” writes historian John McAuley Palmer (America In Arms, 1941), these “officers and men were no longer militiamen in the constitutional sense. They had become members of a volunteer army and could therefore be employed in Cuba or elsewhere beyond the limits of the United States. This was the first cumbersome step in the evolution of our modern National Guard.” In 1917, a new Selective Service Act allowed president Wilson to draft Guardsmen as individuals rather than call up their units as the 1916 National Defense Act allowed. Fast forward to the Iran-Contra War (1986) and we find Gov. Michael Dukakis of Massachusetts and Gov. Joseph Brennan of Maine refusing to allow their Guard to be used in Honduran exercises. They were soon joined by the governors of New York, Vermont, California, Washington, Arizona and Kansas. The Reagan Administration initially backed off, but then discretely got the help of Mississippi Congressman Sonny Montgomery who successfully amended the Fiscal Year 1987 Defense Authorization Act to prevent governors from withholding their units from training outside the United States. Minnesota Governor Rudy Perpich managed to challenge the Act, taking the issue all the way to the Supreme Court and, unlike Dukakis, actually got an opinion. David Scheffer masterfully summarizes for us in the American Journal of International Law (Vol.84,#4 Oct. 1990):

“In the beginning — 1789 — the national Government was constitutionally empowered to order the state militia into federal service only in times of national emergency. Two centuries later, the Court inverted the Framers' intent. It interpreted the Constitution as investing the national Government with the power to order the members of a state National Guard into active duty in the federal National Guard for any reason authorized by federal statute (such as peacetime training overseas) and, by grace of the conference report of the Montgomery Amendment, to reserve to the state governor only the power to defy such an order if those members of the state National Guard are needed for a local emergency.”

Reviewing the 1916 National Defense Act and the 1933 Amendment that created the dual enlistment system whereby “all persons who have enlisted in a State National Guard unit have simultaneously enlisted in the National Guard of the United States,” Giuliano notes that the Supreme Court in 1991 “provides a gubernatorial veto over those ‘federal training missions' that interfere with the State Guard's capacity to respond to local emergencies. Notably, the Court has not directly addressed what would occur if the National Guard was deployed out of state before an emergency arose.”

Returning to an elected official's point of view (say a Vermont Town Clerk's): how can we address any problem at home, constructively, while spending precious lives and $11 million an hour recklessly in Iraq? And just where in the Constitution is it written that our “well regulated militia {aka National Guard}, being necessary to the security of a free state” might one day be more needed abroad than at home? Clearly, it's not there., explicitly. It awaits interpretation. “Where there's a will,” writes Palmer, “there's generally a way to interpret the Constitution in the public interest.” If the Constitution is indeed “all sail and no anchor,” as one British statesman once claimed, who'll interpret/anchor it now in the public interest? Besides Giuliano, where are the minutemen and women of Constitutional Law? Where is Governor Janet Napolitano's request for a report on this? As Chair of the National Governors Association, she's key in getting the NGA's Center for Best Practices to study this issue. Will her Arizona Guard be next deployed to a post-Castro Cuba, to the brewing Turkish-Kurdish showdown in the Kandil Mountains, to the emerging conflict in Asia as Taiwan prepares to announce its “Olympic Independence” in 2008?

“Following the terrorist attacks on Washington and New York,” concludes Giuliano, “some drew the lesson that the era of state's rights decisions, a luxury of tranquil times, now seems like the vestige of a bygone era. Conscious reflection and subsequent experience demonstrate that this should not be the case. The Framers intentionally incorporated emergency federalism into the Constitution. It applies even in times of grave danger.”

While our President persists relentlessly with a reckless war abroad — providing an invaluable training ground for future terrorists — let's hope that our governors remain equally focused, providing the needed support to local officials while exercising rare and decisive leadership in addressing emergencies at home.

John Dowlin / cyclerecycle@hotmail.com

The writer, schooled briefly at Vermont Academy, Goddard & Hamilton Colleges, is a proponent of citizen diplomacy, emerging nations and simple, sustainable living. He edits an annual wall calendar, Cycle & Recycle, and is currently working on several initiatives to improve U.S.-Cuban relations.