Note: This has been amended and updated, click here for the current version
The following is Tenth Amendment Center approved legislation to nullify federal overreach into the use of a State’s National Guard Troops. Activists, we encourage you to send this to your state senators and representatives â€“ and ask them to introduce this legislation in your state.
AN ACT concerning Public Safety â€“ National Guard Deployment â€“ Governorâ€™s Powers
FOR the purpose of requiring the Governor to withhold or withdraw approval of the transfer of this Stateâ€™s National Guard to federal control in the absence of an explicit authorization adopted by the Federal Government in pursuance of the powers delegated to the Federal Government in Article I, Section 8, Clause 15 of the U.S. Constitution.
A BILL ENTITLED __________
WHEREAS, Under the Constitution of the United States, each stateâ€™s National Guard is controlled by the governor, but can be called up for federal duty by the federal government, provided that said duty is pursuant to the Constitution of the United States; and
WHEREAS, Article I, Section 8, Clause 15 of the Constitution of the United States delegates to the Congress the power to provide for â€œcalling forth the militiaâ€ in three situations only: 1) to execute the laws of the union, 2) to suppress insurrections, and 3) to repel invasions; and
WHEREAS, James Monroe, member of the Virginia Ratifying Convention, 7th U.S. Secretary of State, and 5th President of the United States, wrote in 1815, â€œCongress shall have power to provide for calling forth the militia to execute the laws of the Union; what laws? All laws which may be constitutionally madeâ€; and
WHEREAS, the Tenth Amendment to the Constitution of the United States reads as follows: â€œThe powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the peopleâ€; and
WHEREAS, the Tenth Amendment defines the total scope of federal power as being that which has been delegated by the people of the several states to the federal government in the Constitution of the United States; and
WHEREAS, Daniel Webster, in his 1814 speech on the floor of Congress, said, â€œThe operation of measures thus unconstitutional and illegal ought to be prevented by a resort to other measures which are both constitutional and legal. It will be the solemn duty of the State governments to protect their own authority over their own militia, and to interpose between their citizens and arbitrary power. These are among the objects for which the State governments existâ€; now, therefore,
SECTION 1. BE IT ENACTED BY THE (GENERAL ASSEMBLY/HOUSE/SENATE) OF THE STATE OF (enter state), That the Laws of (enter state) read as follows:
(enter section of state code here)
THE GOVERNOR SHALL WITHHOLD OR WITHDRAW APPROVAL OF THE TRANSFER OF THE NATIONAL GUARD TO FEDERAL CONTROL IN THE ABSENCE OF:
a) A military invasion of the United States, or
b) An insurrection, or
c) A calling forth of the Guard by the federal government in a manner provided for by Congress to execute the Laws of the Union, provided that said Laws were made in pursuance of the delegated powers in the Constitution of the United States, or
d) A formal declaration of war from Congress.
SECTION 2. AND BE IT FURTHER ENACTED, That the governor shall examine every federal order, present and future, that places the national guard on federal active duty to determine whether the order is Constitutional according to Article I, Section 8, Clause 15 of the Constitution of the United States. If the governor determines that the order is not Constitutional, he or she shall take all appropriate action to prevent the National Guard from being placed or kept on federal active duty.
SECTION 3. AND BE IT FURTHER ENACTED, That the governor shall submit a report to the standing committees of the legislature with specified subject matter jurisdiction over military affairs, as provided under (ENTER SECTION FROM STATE CODE), that summarizes his or her review of every order that placed or 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.
SECTION 4. AND BE IT FURTHER ENACTED, That this Act shall take effect (enter date).