Bush & Congress Grab For More Power... And Push The Constitutional Envelope Once Again

Governors Bristle at Bush Guard Proposal

There has been a long-standing principle that the National Guard is under the direction of the Governor of each state unless, under compelling reason of national security, crisis or the absolute lack of reserve units for the military. During the Vietnam War, these principles were violated by LBJ and Tricky Dicky, and many National Guard units were nationalized and shipped off to the Nam. The unfortunate reality was that then, as is the case now, the Guard units were more trained for national crises, responding for humanitarian reasons, law enforcement, riot control and emergencies like Katrina. During the 1960s the number of Guard units that suffered deaths at a rate of almost 50% and a total casualty rate (wounded and killed in action) that rose above 75% because they were not given time to ramp up to the realities of the Nam and the insurgent and geurrilla tactics being used by the Viet Cong and the NVA special warfare units.

The principle of holding the Guard units under the exclusive control of the governors of each respective state has also been a provision of the Posse Comitatus Act of 1878 (18 U.S.C. § 1385), with the guard actually taking the place of what had been the several and separate militias. While under the control of the governor of a state, the prohibtion against using federal troops for law enforcement emergencies does not apply because these units are "state" and not "federal." The princicple has been held in such regard and status that even before using the provisions of the law that allow a president to federalize Guard units, the precedent has been to request permission to do so, even when not actually required by law.

Many have criticized the Bush administration for its previous efforts of weakining these principles and the provisions of the Posse Comitatus Act through previous efforts, especially since the rationale for doing so failed during the Katrina and Rita emergencies. In May, 2006, Newsday Magazine offered the following comments regarding the stretching of Guard unit strength for the purposes of border protection:

Newsday: National Guard Already Stretched Too Thin; Bush Must Show Leadership. "But the National Guard is spread thin with duties in Iraq and responding to natural disaster at home. Additional duties on the border may be too much to ask. Bush said the deployment would be temporary, just until more border agents can be hired and trained. But it's difficult to know how long that will take and how much it will cost. Although using troops at the borders isn't unprecedented, Congress has to weigh its impact on relations with Mexico. The nation needs Bush to lead the way to immigration laws that are pragmatic and enforceable. It won't be easy, given the disconnect between the House and the Senate. The House bill passed in December would erect a 700-mile fence along the border with Mexico and would make it a felony to be in the country illegally. The Senate is moving toward a guest worker program and a path to eventual citizenship for the 12 million people here illegally. It's hard to avoid the sense that Republicans chose this moment to push immigration reform in order to divert attention from Iraq, deficits and Katrina, where Bush and the Republican congressional majority are taking a beating." [Newsday, Editorial, 5/16/06]

While border protection is a legitimate "federalized" role of the National Guard in the case of an invasion, it is not legitimate in the role of enforcing federal immigration laws, which is what the Bush gang insists upon. The use of federalized National Guard troops in this fashion is a clear violation of the principles and precedents of the Posse Comitatus.

Now comes a proposal by the Bush gang to allow the president to federalize at a whim, without notice or compelling reason, and at the mere signing of a document. Much like the so-called "signing statements" that Bush has used to exclude himself, his cabinet and his administration from adherence and obedience to the laws he has signed into law, this approach is patently illegal and unconstitutional.

Under Article II, Section 2 of the Constitution, the president is the Commander-in-Chief of the militias when they are called into federal service, but the procedures for doing so are spelled out in several laws, including the Posse Comitatus Act. A 2005 US Army War College academic report spells out some of the precdents and roles the Guard units have played and examines whether these roles should be expanded under the auspices of national security, Homeland Security and the "War on Terorrism" since the events of 9-11. But the legal and constitutional issues remain largely unquestioned and unexamined.

The governors, collectively and individually, are well within their rights as the cheif executive officers of their sovereign states, under principles of states' rights embodied in the Constitution and set by over 200 years of precedents, to bristle at the ideas proposed by the Bush gang. Further, it is important that this, yet another, grab for power and extension of the executive powers not be granted.

The nation's governors are closing ranks in opposition to a proposal in Congress that would let the president take control of the National Guard in emergencies without consent of governors.

The idea, spurred by the destruction and chaos that followed Hurricane Katrina's landfall in Louisiana and Mississippi, is part of a House-passed version of the National Defense Authorization Act. It has not yet been agreed to by the Senate.

The measure would remove the currently required consent of governors for the federalization of the Guard, which is shared between the individual states and the federal government.

"Federalization just for the sake of federalization makes no sense," said Gov. Kathleen Blanco of Louisiana, a Democrat who had rough relations with the Bush administration after the disaster last year. "You don't need federalization to get federal troops. ... Just making quick decisions can make things happen."

Gov. Mark Sanford of South Carolina, a Republican, said "a whole bunch of governors" were opposed to the idea after the proposed change was brought up in a private lunch meeting.

Some two dozen governors met in Charleston for three days of discussions at the annual summer gathering of the National Governors Association. The association's leaders sent a formal letter of opposition to House leaders last week.

The language in the House measure would let the president take control in case of "a serious natural or manmade disaster, accident, or catastrophe," according to the NGA.

"The idea of federalizing yet another function of government in America is a, the wrong direction, and b, counterproductive," Sanford said. "The system has worked quite well, notwithstanding what went wrong with Katrina."