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Saturday, July 13, 2013

Is Army "Takeover" of the National Guard Constitutional?

By Dr. Harold Pease

Always Where(?)
A recent announcement, by General Ray Odierno, Army chief of staff, that National Guard unit training for overseas deployment will be increased rather than decreased following our “drawdown” in Afghanistan, invites a serious constitutional challenge. 

Sir, only Congress was given the authority “to make Rules for the Government and Regulation of the land and naval Forces (Article I, Section 8)” and none of your new rules came from them. Moreover, the Guard was never constitutionally designed to have an external protective function.

The General’s announcement, as reported in USA Today, that the traditional schedule of drilling one weekend a month and two weeks a year, established by Congress in 1903, is not enough combat training and will be abandoned beginning the new year. “Instead, they will keep preparing for war, with training periods away from home each year that would grow from a two-week block to up to seven weeks,” in addition to the one weekend a month.

But the U.S. Army’s “take-over” of the rule making power specifically left to Congress alone is not the most serious constitutional violation. Let us be reminded that Article I, Section 8 of the Constitution left all war making powers: raising armies, providing for a navy, and declaring, funding, and maintaining war with Congress alone. Defending the country is their prime responsibility.

The militia, since 1903 commonly referred to as the National Guard, however, is a separate body from the army and navy and has a distinct internal role instead. Notice the wording in the Constitution authorizing Congress, “to provide for calling for the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” Its three functions are to execute the laws in the United States, suppress insurrections within our country, and to repel invasions to it. How can the militia do any of these functions, for which it is specifically charged, if on the other side of the world?

They were never to be thought of as merely a pool of reserve troops for the army. Impeachment proceedings should have been threatened against President George W. Bush when he treated them as such deploying 100,000 of them in 2005 to Iraq and Afghanistan rather than to ask Congress to restore the draft when enlistments were not enough. This alteration of the Constitution is that serious. The National Guard was simply an easy target and no one from either party objected. It cannot perform its constitutional duty outside the United States. President Barack Obama’s mimicking the practice, and the General’s admission that at least one-year deployments of Reserve troops will continue in Afghanistan until we leave in 2014, indicates that the Constitution will continue to be violated by Democrats as well.

The rational for a militia is very simple. The first line of defense from unwanted aggression is oneself, followed by local law enforcement agents, followed by the National Guard (guarding the nation from within), followed by the military. As in soccer it is the goalie. Should invasion occur while the militia and the army are overseas we would be defenseless; by doing so both recent presidents have unconscionable left, or are leaving, us vulnerable and without a goalie.

General Odierno spoke of the need to keep the National Guard more prepared for war by extending their combat training. As “repelling invasions,” is the only one of their three constitutional functions dealing with knowing how to make war, I wonder how much training they will get in the other two, “executing the laws of the union and suppressing insurrections,” both mostly law enforcement support functions. The General did not mention any but, then again, he wrongly views them as an extension of his army—mere fodder. Congress needs to set him, and the Executive Branch he represents, straight. Will you help awaken Congress so that it will do so? After all, it’s about your liberty which is under fire.

Dr. Harold Pease is an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 25 years at Taft College. To read more of his weekly articles, please visit