Yes, there are many actions open to the Constitutional power of the States to make the Federal Government change its policies.

States’ rights are grounded in the United States Constitution under the 10th Amendment. The 10th Amendment states that “the 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 people.”

It was the specific intent of the Founders that the States could and should weigh in on significant matters. There is no more significant matter than the decision to send American men and women into combat.

The States can pass legislation banning deployment of their National Guard units to combat or support operations unless there is a formal declaration of war enacted by Congress as enumerated in Article I of the U.S. Constitution.

The only exception to this is Article 2 power of the Executive to act if the United States is directly attacked.

But even then, the Executive is required to go back to Congress for approval.

Congress is the embodiment of the People, their representatives. Only the People through their representatives have the moral authority to declare war, not any one president or horde of faceless bureaucrats.

The Founders recognized that the States are closer to the people than the Federal government through Article 10 of the Constitution and in other writings.

Yes. Legislation to prevent the deployment of National Guard units to combat operations unless Congress formally declares war has been introduced in the West Virginia House of Delegates each of the last five years by Del. Pat McGeehan, R-Hancock. In early 2019, a motion to bring the legislation from committee to the House floor for final action received a bipartisan majority vote in favor. However, the Speaker of the House refused to bring the legislation up for a final vote, and it died when the Legislature adjourned late last year.

Del. McGeehan, a U.S. Air Force Academy graduate, former Air Force intelligence officer, and Afghanistan war veteran, won the support of Democrats and Republicans alike, truly a bipartisan effort. He has already reintroduced the legislation for consideration during the 2020 legislative session, along with similar legislation introduced this year in multiple other states (see map on home page).

In 1990, the U.S. Supreme Court ruled that “Congress may authorize members of the National Guard of the United States to be ordered to active federal duty for purposes of training outside the United States without either the consent of a State Governor or the declaration of a national emergency.”

“The question presented,” the late Justice John Paul Stevens wrote for the unanimous court, “is whether the Congress may authorize the President to order members of the National Guard to active duty for purposes of training outside the United States during peacetime.”

Or as Norman Beckman, Professor of Political Science at Howard University and Assistant Director of the U.S. Advisory Commission on Intergovernmental Relations, observed: “The decision dealt only with the authority for calling Guard units for two weeks of active-duty training.”

The entirely separate issue addressed by Defend the Guard legislation — whether a state can withhold its National Guard units from long-term deployments to combat or combat support operations overseas during a time of war, absent Congress fulfilling its Constitutionally-prescribed authority and duty to declare war — has not been tested by the courts. Three decades later, based on the writings of a majority of the current justices of the U.S. Supreme Court, we believe Defend the Guard legislation will be upheld if challenged.