I read recently that several governors refused to contribute NG troops to the Mexican border guard program that Bush started. And today I came across this AP article about pending legislation to allow the President to take control of the National Guard in emergencies, without permission from the governors. This suggests to me the governors ndividually or collectively could put a serious hole in a massively unpopular war by keeping the units home and/or demobilized.
Is this correct? How does the military Reserve figure into this? I think I’ve heard somewhere that reservists somtimes serve in and train with Guard units. I would assume individual reservists might be called up by their regular military units, but would the guard soldiers be subject to that?
And what about the hardware? Couls the Feds ship in a few truckloads of drivers to each NG armory and take away all the stuff?
I understand there would be political and economic consequences to a governor and the state in which this was done. The Feds would at minimum at minimum cut all funding for the Guard in the state, and probably try to stop ANY federal money from flowing in. The state legislature might try to impeach the governor, or strip that power away from the governor. The Congress might enact some similar legislation to force compliance, or punish non-compliance.
But as things stand now, what recourse does the President have if a governor just says “no”?
That is a very interesting question. If a number of governors did it, it could hamstring the whole affair. The Feds couldn’t do a whole lot about it, either. Cut funding for the Guard…maybe. But that would lead to the immediate lawsuits on the Federal level. The Supremes would weigh in on this one quickly. But IMO the only way things would get to this point would also include Republicans losing control of Congress, which would end NG involvement in any case. This would make a good question over in GD.
The Congress has the power (Art. I, Sec. 8.15) to provide for “calling forth the militia to execute the laws of the Union, to suppress insurrections and to repel invasions.”
In those cases the governor is not even in the picture. In 1957 Eisenhower federalized the Arkansas National Guard to enforce a court order desegregating Little Rock, AK high school. That removed the Guard from the control of Arkansas Governor Faubus.
GW could probably do the same thing to enforce immigration laws except he would need to declare an emergency. It’s doubtful that this is an emergency withing the meaning of the provisions for federalizing the Guard.
Funding will be the big issue. Will this come out of the Guards’ current budget or will Congress appropriate extra money to pay for it?
Exactly. Is the governor’s refusal to allow the NG to be sent to Iraq “insurrection?” If illegal immigration is declared an “invasion,” then that implies that we are at war with Mexico.
Interestingly enough, neither us the President. Yet you’re right David, I had forgotten about the Feds role v the states in the early days of the Civiil Rights movement.
I don’t suppose you would know under what authority Eisenhoert acted? The constitutional language you cited doesn’t lend itself to the iinterpretation that Congress might delegate that power to the President by legislation, but I’m certainly not lawyer enough (at all, really) to have any confidence in my own opinion about that
Well, the Congress has the power to enact “all laws necessary and proper” to carry out all the other powers of Congress. I would think that giving the President the power to place the Guard under federal control to enforce a court order would be covered under “to execute the laws of the Union.”
Once the Guard is federalized it becomes just another part of the US armed forces and under US control. The Governors have nothing to say about it.
I believe that the conditions under which the federal government provides funding, equipment and training to the National Guard require that the NG units maintain a certain level of training and be made available to the federal government for military service on demand. I know that failure of a Guard unit to meet the readiness level requirements can lead to the Army/Air Force taking away their federally-supplied equipment (which is almost everything, including all the big ticket items such as aircraft and vehicles). I expect the sme thing would happen if the Guard unit could not be “federalized” on demand.
That’s the crux of the issue. The Congress has the power to federalize the Militia, and they’ve written statutes which allow the President to do so in an emergency. So if a governor were to refuse permission to put his National Guard troops under federal control, the President might try declaring an emergency to do it anyway.
So, would such an emergency declaration hold up in court? I don’t know what the requirements are for federal emergency declarations, but I bet Congress would not be particularly pleased. Seems like a great plot for The West Wing.
This appears to do more with Katrina than Iraq or Mexico. Though Mexico might play into it. Louisiana resisted federalizing the National Guard immediately after the storm and the Bush administration was confused and upset by it. I am not a lawyer enough to know who was “right” and I seriously doubt federalizing the guard in those first days would have made any difference, but it was quite a political dust-up in the months after the storm. Perhaps they are trying to avoid this problem in the future.
The last few Congresses have not shown any hint of strict, or even lax, oversight of how the executive carries out his obligation to see that the laws are faithfully enforced or his performance as Commander in Chief.
So if the President (the Commander in Chief of the federal military forces) can call up the militias essentially at will, then what’s the real distinction between the regular federal forces and the National Guards?
Yes, I have the same question. Will Repair’s link talks about two guards, one federal, but not how they differ. Presumably the the federal reservists are prinarily vets who have already served in the federal military, but could they also be "green troops who START in the reserves?
Is what might happen this, if a governor refuses to mibilize? The reservists load up the guns and drive off to war after saying goodbe to the state people?
I have a co-worker whose husband is a guardsman, maybe he can shed some light on this.
When push comes to shove, a governor will almost invariably lose in any legal dispute over whether she or the President controls the National Guard of her state. An important decision:
Less now, purposely since Vietnam war. During Vietnam war service in the National Guard was a way out of the draft and hence the war. (Even G. W. Bush marked the “Do not want to serve overseas” box.) After the war the Joint Chiefs of Staff changed the rules so that in any undeclared war most of the fighters would be the National Guard.
It is possible to join just the Reserve. You go to boot camp then serve a (varied) minimum active duty time and then are in the Reserve for the rest of your enlistment.