Bush Administration in Violation of Constitution and War PowersAn exclusive by
dubyaD40.comIn the wake of Hurricane Katrina, the stage has been set for the Governor of any State in the Union to challenge any further deployment of the National Guard troops to Iraq. In addition, a case could also be made that the Bush administration is now in violation of the
U.S. Constitution Article I Section 8(1) and the
War Powers Resolution Public Law 93-148(2) regarding the National Guard troops that are currently serving in Iraq.
It has been widely reported that during the immediate aftermath of Hurricane Katrina there was a rift between President George W. Bush and Louisiana Governor Kathleen Babineaux Blanco over who would be in control of the National Guard. The Bush administration urged the Governor to allow the federalization of the National Guard but as the Washington Post reported, on September 3, 2005 Governor Blanco officially refused and by doing so remained Commander-in-Chief over the Louisiana National Guard.
(3)Amid the growing controversy over Presidential authority, the federal government's power over the National Guard has been largely overlooked. Use of the National Guard by the federal government is granted through Article I Section 8 Clause 15 of the U.S. Constitution, The Dick Act of 1903 and The National Defense Act of 1916. And when used in conjunction together the President becomes the Commander-in-Chief of the National Guard and is allowed to use these forces outside the territorial limits of the United States. But only by means of a Congressional Declaration of War, Congressional Act or
National Emergency Proclamation(4) however these powers are restricted by the
War Powers Resolution(5),
The National Emergencies Act(6), and the
Posse Comitatus Act(7).
When President Bush conceded authority to Blanco it was an admission that no national emergency was in effect and therefore he was unable to assert command and control under that requirement. And being there is no declaration of war with Iraq two of the three requirements are not applicable for further federalization attempts. The ability to use the National Guard for the invasion of Iraq came through the
Joint Resolution to Authorize the United States Armed Forces Against Iraq(8) and it is this resolution that is the heart of the argument for the restricting of further National Guard deployments to Iraq.
The title of this resolution is very important because it can be surmised that the word "against" was used deliberately and that it meant that this authorization was for direct combat operations against the Hussein regime only. Any additional combat operations would be under the guise of a rebuilding effort of the Iraqi infrastructure.
On May 1, 2003 President Bush made a speech aboard the USS Abraham Lincoln announcing the end to major combat operations in Iraq
(9) and it could be argued that this was when the resolution giving the President authority over the National Guard would need to begin to conform to the applicable laws dictating overseas deployment. But because Saddam Hussein and many of the former top Iraqi officials had yet to be captured and an argument could also be made that the resolution was still in effect and would remain viable until a new Iraqi Government was in place. Both of these stances have merit and would need to be debated and ruled on by congress.
Not subject to debate is that on June 2, 2004 Coalition Provisional Administrator L. Paul Bremer handed over sovereignty to Prime Minister Iyad Allawi and a new American Ambassador took his place and that is when the resolution definitely came to an end
(10). This is a watershed moment in that this was the point in time after the invasion where the restrictions of the National Defense Act of 1916, War Powers Resolution and Posse Comitatus Act was supposed to be invoked.
According to these Acts the federal government would only be able to keep control of the National Guard outside the territorial limits for an additional 270 days plus 6 months subsequently, therefore that control should have expired on September 25, 2005 and all National Guard troops be returned to the United States. Any further deployment would be in direct contradiction to the constitutional requirements and therefore would have to be deemed illegal.
U.S.C. 12301(11) states that a Governor cannot withhold consent because of any objection to the location, purpose, type, or schedule of such active duty. And the Bush administration would surely invoke this law to keep the National Guard troops under federal control. But the applicability of this law and others like it comes into question if the deployment of these troops is no longer constitutionally legal. And with the lack of a specific Congressional Act for these troops to be serving in Iraq it is only through a constitutional challenge that their deployment be deemed officially legal or not.
If a Governor were to declare a state of emergency and thereby solidify control over the State's National Guard, that Governor should be able to refuse further federalization in order to meet the needs of his or her State. A state of emergency could be either natural or man made and it is not limited to being a response but could also be under the auspices of preparedness. If a Governor perceives a threat to those he or she governs then it is their duty to prepare a reasonable plan to deal with such a threat. An action by a Governor would be the Constitutional challenge needed to force the issue and it would be up to the Judicial and Legislative branches of government to determine its constitutionality.
Such a move would be politically risky but at the same time it would appeal to both sides of the political spectrum. A Governor would garner support from strict Constitutionalists, Anti-War and States Rights advocates, not to mention the thousands of National Guard members and their families.
Sources:-----------------------------------
1.
http://www.usconstitution.net/const.html2.
http://usinfo.state.gov/usa/infousa/laws/majorlaw/warpower.htm3.
http://www.washingtonpost.com/wp-dyn/content/article/2005/12/04/AR2005120400963.html4.
http://www.arng.army.mil/history/Constitution5.
http://usinfo.state.gov/usa/infousa/laws/majorlaw/warpower.htm6.
http://www.marad.dot.gov/publications/complaw03/National%20Emergency%20Act.htm 7.
http://www.northcom.mil/index.cfm?fuseaction=news.factsheets&factsheet=58.
http://www.whitehouse.gov/news/releases/2002/10/20021002-2.html9.
http://www.cnn.com/2003/US/05/01/bush.transcript/10.
http://iraq.usembassy.gov/iraq/transfer_of_iraq0628.html11.
http://www4.law.cornell.edu/uscode/html/uscode10/usc_sec_10_00012301----000-.html
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