Around the globe, the United States has intervened militarily for over one-hundred years, supposedly to preserve the American way of life and “spread democracy.” But after billions spent and thousands of lives lost in pursuit of this dual mandate, many Americans are looking for ways to end the warfare state.
The most dangerous political opponent of a war-weary American is a strong central government. The presidency is often the nexus of this opposition.
Some authors – most notably, John Yoo – have argued forcefully that the president has wide ranging powers in wartime. Citing some 200 circumstances where armed forces were deployed outside the United States, 125 of them were the result of the president acting without prior express authorization from Congress.
The Supreme Court legitimized this claim by coming down firmly on the side of expansive presidential war powers.
Precipitated by events in the War of 1812, the Court took a strong stand for presidential authority to determine when an “emergency existed”. In the 1827 case of Martin v. Mott, the Court opined in favor of that presidential authority. State governors had argued that they had the authority to determine when the exigencies existed that would give the president the constitutional authority to call up the militia. The president disagreed and the Court sided with executive power.
In the War of 1812 – prior to the Mott decision – there was a substantial check on the president’s power to use troops. The national army was small and state militia and volunteer forces consisted mostly of poorly trained, unorganized, and undisciplined combatants. States had little interest in sending (and paying for) its citizens to fight in wars.
But as time went on, and as more power was centralized within the three federal branches, the states lost their most important prerogative: the ability to decide for themselves when their citizens should go to war.
Recently, there has been a groundswell of support to recapture the states’ constitutional right to determine when the conditions exist for the president to call up the National Guard – or the militia as it was called until 1903.
In some instances states have refused to deploy Guard troops to the Southern Border or within their states’ borders to quell rioters. Even during the chaos of Post-Katrina Louisiana, the Governor of Louisiana, Kathleen Blanco, refused to sign over control of the National Guard to the federal government.
Clearly, there are some governors who are comfortable with their legal authority to refuse the president’s request for the use of the National Guard.
But these are cases of National Guard troops being used by the federal government in domestic affairs. What about deploying troops abroad?
Smatterings of states are pushing back against the deployment of National Guard troops to foreign countries without the proper constitutional authority. Though small in number, these state legislatures are demanding that any use of military force follow the prescribed constitutional path.
The Defend the Guard legislation is one way for state legislatures to push back against unconstitutional federal overreach. This legislation would require a State’s Governor to withhold or withdraw the use of that State’s National Guard by the federal government unless there is a lawful declaration of war under Article 1, Section 8 of the Constitution, or it called into service under the situations prescribed in the Constitution..
These constitutional arguments are part of a larger picture that is the changing face of the anti-war movement.
But there are concrete ways they can re-engage and strengthen their cause. Strategies like these are leading the way to help state legislatures, quite literally, “act locally, but think globally”.
The wars will continue with the next president, whether it is a Democrat or a Republican. If the anti-war movement that was so strong ten years ago supported the state-based initiatives to bring the guard home, we could find ourselves living in a safer and more constitutional country.
 A.R. Millett and P. Maslowski For the Common Defense: A Military History of the United States of America. (p. 108) New York, NY. 1994.
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