by Lawrence A. Hunter Ph.D.

“Will you step into my parlor?” said the spider to the fly;
“’Tis the prettiest little parlor that ever you did spy.
The way into my parlor is up a winding stair,
And I have many pretty things to show when you are there.”
“O no, no,” said the little fly, “to ask me is in vain,
For who goes up your winding stair can ne’er come down again.”
–The Spider and the Fly

President Obama issued Executive Order 13528 on January 11, 2010 establishing a Council of Governors ostensibly “to strengthen further the partnership between the Federal Government and State governments to protect our Nation and its people and property.”

If history has taught us anything, it is to beware of “cooperative partnerships” between the federal government and states. They invariably result in an expansion of federal authority and reach at the expense of the states and a diminution of individual rights and freedoms in the name of the general welfare and national security. So-called “cooperative federalism” is a snare and a delusion. Read more here

One direct result of the new Council of Governors will be to provide the federal government more control of state National Guards, allowing the president to synchronize and integrate federal military operations within the United States. The total disregard for the Posse Comitatus Act within this order is one more erosion of restrictions against the use of the military for law enforcement.

More generally, the new Council of Governors establishes a bureaucratic transmission belt for the president to conscript state governors to act as agents of the federal government. Indeed, by establishing this council, appointed by the president and presided over by the Secretary of Defense, President Obama is asking governors to engage in the ultimate act of sovereign suicide in the name of “intergovernmental cooperation and coordination.” This council represents the ultimate in “intergovernmentalism,” a perversion of true federalism.

I have written about the corrosive nature of intergovernmentalism or so-called “cooperative federalism” extensively.

Intergovernmentalism Replaces Federalism
“After World War II, federalism was replaced by ‘intergovernmentalism, an unlovely term for the unlovely transformation of the sovereign states into bureaucratic extensions of the central government. . . It is an interesting exercise to analyze why the U.S. Constitution failed in this, its most important function.
“It is not necessary to come to any definitive conclusion as to why it [federalism] failed to know that is has, in fact, failed. It is sufficient to observe the states’ advanced stage of political decrepitude and legal dilapidation; the relatively low-quality of their elected and appointed officials; their incapacity to defend themselves legally, politically or physically against the national government; their fiscal dependence upon the national government; their reliance upon the national government operationally; their subservience to the national government in every respect; their low regard in the eyes of the public and the lesser affection and attention they receive from the electorate.”

The president’s latest executive order is of a piece with his December 17, 2009 executive directive amending Executive Order 12425 to grant immunity to Interpol agents operating within the United States, paving the way for Interpol to be conscripted by the president as a kind of Swiss Guard.

Taken together, these two executive orders represent another quantum leap in the continued erosion of meaningful constraints on the federal government’s police power, and they constitute a frightening continuation of this president’s expansion of the military-industrial-police state at his command.

Governors should decline the President’s invitation to step into his Council. State officials who enter into these federal labyrinths never come out with their sovereignty in tact.

Editor’s Note: CLICK HERE to view model legislation to reassert State control over national guard troops.

Dr. Lawrence A. Hunter is President of the Social Security Institute, a 501(c)(4) non-profit organization, and Senior Fellow at Americans for Prosperity and the Institute for Policy Innovation where he does economic research and writes reports on a diverse range of public policy issues.

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AB203 “requires the governor to examine every federal order that places the Wisconsin national guard on federal active duty to determine if that order is lawful and valid. If the governor determines that the federal order is not lawful or valid, the bill requires the governor to take appropriate action, which may include commencing legal action in state or federal court, to prevent the Wisconsin national guard from being placed on federal active duty.”

The bill also “requires the governor to submit to the appropriate standing committees of the legislature a summary of the governor’s review of every federal order that places the Wisconsin national guard on federal active duty and any action he or she takes in response to that review.”

The Guard considers its charter to be the Constitution of the United States, and specifically mentions Article I, Section 8, Clause 15:

Clause 15 provides that the Congress has three constitutional grounds for calling up the militia — “to execute the laws of the Union, suppress insurrection and repel invasions.” All three standards appear to be applicable only to the Territory of the United States.

Read the full text of the Bill below:

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB203, s. 1
Section 1. 321.02 (3) of the statutes is created to read:

321.02 (3) The governor shall examine every federal order that places the national guard on federal active duty after the effective date of this subsection …. [LRB inserts date], to determine whether the order is lawful and valid. If the governor determines that the order is not lawful or valid, he or she shall take appropriate action to prevent the national guard from being placed on federal active duty. Appropriate action may include commencing a legal action in state or federal court to prevent the national guard from being placed on federal active duty.

The governor shall submit a report to the standing committees of the legislature with specified subject matter jurisdiction over military affairs, as provided under s. 13.172 (3), that summarizes his or her review of every order that places the national guard on federal active duty and any action he or she takes in response to that review, within 30 days after his or her review is complete.

A little-noticed change in federal law packs an important change in who is in charge the next time a state is devastated by a disaster such as Hurricane Katrina.

To the dismay of the nation’s governors, the White House now will be empowered to go over a governor’s head and call up National Guard troops to aid a state in time of natural disasters or other public emergencies. Up to now, governors were the sole commanders in chief of citizen soldiers in local Guard units during emergencies within the state.

It didn’t matter that ALL 50 governors objected to this concentration of power in the hands of the executive – the Congress simply moved forward by changing the balance of powers through legislation (once again).

More from the article:

Under the U.S. Constitution, each state’s National Guard unit is controlled by the governor in time of peace but can be called up for federal duty by the president.

The Posse Comitatus Act of 1878 forbids U.S. troops from being deployed on American soil for law enforcement. The one exception is provided by the Insurrection Act of 1807, which lets the president use the military only for the purpose of putting down rebellions or enforcing constitutional rights if state authorities fail to do so.

So what did Congress do to avoid this requirement? With the stroke of a pen, they just changed the requirement of the insurrection act to include “natural disaster, epidemic, or other serious public health emergency, terrorist attack or incident”

How does a “natural disaster” now qualify as an insurrection?? Who, then, determines what qualifies as a natural disaster? Will a snowstorm qualify for the president to control the guard, and send troops into our cities? Will a heavy rain? And, when will Congress use another “stroke of the pen” to add even more reasons to have federal military control policing our cities?

It’s not the abuse of power we’re most concerned with, it’s the power to abuse. This unconstitutional move by the federal government gives them, in writing, the power to do two things:

1. federal control of the guard, which is clearly under the jurisdiction of the states – except in “times of insurrection…”

2. Congress has once-again given itself the power to change the Constitution by pure legislation – not constitutional amendment. (this is even more dangerous)

To us, this is clearly an example of the federal government showing us that they can and will change the structure of power as created by the founders. Period.

We find it disgraceful that Congress would violate the original intent of Article I, Section 8, Clause 15, and enact legislation that has forced State citizen militias to ‘metamorphosize’ into a national organization that is now primarily deployed outside of the United States.

We call on the governors to hold to their duty – to dispute and refuse to obey unconstitutional laws, and thus to prevent our Guard members from federal control in these and many other situations already in place.