All this in an executive order signed by one man October 16, without congressional approval or even a measure of public sentiment as to whether we want our soldiers potentially bringing home the deadly virus, but these are questions for another time. My concern now is the constitutionality of the process.
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 President functions as Commander in Chief of the armed forces after Congress authorizes engagement outside immediate response to an attack. Remember, George Washington was strongly criticized for not defending the settlers from Creek Indian attacks. He argued that Congress had not authorized war on the Creeks thus he could not perform a military function until this was done. Today the President sends troops wherever and whenever he pleases and only asks Congress when he cares to.
But one rightly argues, this is not a war and we are not under attack in the military sense so the president has no Commander and Chief authority. If so Congress alone should decide whether we support volunteers in Africa. The enemy is a virus, not another nation or people, and this is a humanitarian effort. This argument too must be saved for another time.
My concern is the President’s emasculation of a portion of the Constitution if he sends a single national guardsman to Liberia. The militia is not and never has been the army. It is the people, the citizens, and in the 2nd Continental Congress, even before the Constitution, the militia was defined as every able bodied male 17 years of age and older. In 1903 the Dick Act revisited the topic keeping the original definition as Part A, the unorganized militia, and organizing a portion thereof into the organized militia, the National Guard, as Part B. It was to remain a separate body from the army and navy and retained its distinct internal function. 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.” Only Congress can call it forth. 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 organized militia (The National Guard) do any of these functions, for which it is specifically charged, if in West Africa? Unlike the army it is allowed to execute the laws of the union and suppress insurrections. The Posse Comitatus Act forbids the military these internal functions.
The National Guard was 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, when enlistments were not enough, rather than asking Congress to restore the draft. This alteration of the Constitution by blatant ignorance is serious, by intent is treasonous. 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, as he did so much of the Bush foreign policy that he loved to condemn, by one-year deployments of Reserve troops in Afghanistan through 2014, indicating that the Constitution continues to be violated by Democrats as well.
The rational for a militia separate from the army 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 the National Guard 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.
The Constitution belongs to everybody and to generations yet unborn. It should be restored to its proper place as the item of first reference when the federal government does anything—not political party. Hopefully Democrats will remind the President of his “Bush-like” damage to it. If Congress does give proper authorization for use of the armed services for a purely humanitarian mission in Liberia, it should purposely exclude the National Guard and openly deny its use outside the borders of the United States.