SCOTCH: Legal memo on Wisconsin Safeguard the Guard Act

March 13, 2010
Benson Scotch

Memo to the Wisconsin Assembly Committee on Veterans and Military Affairs
2009 Assembly Bill 203
You have asked for my views about the validity and enforceability of AB 203, and I am happy to respond to this request. Please note that I am not a member of the Wisconsin Bar, and the comments I offer relate solely to the United States Constitution and laws as well as conventional rules and practices relating to statutory construction.

Background: AB 203 is similar to bills introduced in a number of states relating to the call to federal service for deployment overseas of state national guard units, sometimes called the federalization of state national guard units or of state national guards. Though the texts of these bills vary from state to state, they have in common the purpose of implementing a state-level review of particular federalization orders for the sole purpose of determining if such orders were issued consistently with federal law.

Construction of AB 203: The nexus--the very core--of AB203 is the clause, "If the governor determines that the [federalization] 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." It should be noted that the sponsors have not included language that would authorize a governor of Wisconsin to approve or disapprove of a particular use of military force in the course of declaring that a particular federalization order did not comply with governing federal law. Articles 1 and 2 of the United States Constitution divide principal war powers between the Congress and the President respectively.

However, Articles 1 and 2 do not relate to or undermine a much broader principle: Federal orders invalid on their face, that is—invalid because a plain-reading comparison of the texts of the order, on the one hand, and the federal statute on which the order relies reveals a material inconsistency—should not be treated as enforceable federal orders.

Defining “Invalid on Their Face”: The Example of Bills in Other States Analogous to AB 203, But Relating Solely to the War in Iraq. AB 203 is not limited to federalization orders relating to the war in Iraq, but a reference to very similar proposed legislation in states focusing exclusively on Iraq should be of help in understanding what is meant by the phrase "invalid on its face."

The predicate of the Iraq war bills in other states is simple: 1) Except in circumstances not relevant here, Congress must authorize the call into federal service of state national guards. (1) Congress did act to authorize the use of force in Iraq, and its legislation is known as the Authorization for Use of Military Force (AUMF) in Iraq. (2) The Iraq AUMF was narrow and specific. It sought to protect the United States from the perceived threat posed by Iraq and to enforce UN Security Council Resolutions relating to Iraq:

(a) AUTHORIZATION.—The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to— (1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq.

In the view of proponents of these bills, the purposes of the 2002 AUMF have been accomplished (Iraq is not a threat to the United States), have proven to be unfounded (the existence of WMDs), or have lapsed (No relevant Security Council resolution remains to be enforced). The Iraq AUMF has therefore expired by its own terms, and other than this AUMF, there is no authority uder the Constitution or the laws of the United States for the continued presence of National Guard members in Iraq, and indeed no authority for the use of force at all in Iraq.

Hence, under this theory, and under any analogous case presented by AB 203, since a President may not order national guard units into federal service without a valid congressional authorization, where that authorization is absent or has expired, the resultant federalization order lacks legal foundation. It follows that invalid orders calling a state National Guard into federal service should be declined, and the Guard units retained in their home states.

We must emphasize that validity must be determined independently of the location, purpose, type, or schedule of such active duty. (3) In other words, the validity of the order must be determinable, not as the result of a governor’s disagreement with the policies or wisdom of the underlying military mission, but as the result of readily determinable factors demonstrating invalidity. In the case of the 2002 AUMF it was readily determinable that the purposes set forth in the Authorization had been achieved or were moot, even though some extrinsic facts had to be assumed as true, such as the nonexistence of WMDs.

Examples of other “readily determinable” factors might be the inclusion in the AUMF of a termination date, a specific limit as to where force might be used, or a condition precedent to the use of force, such as the adoption of a UN Resolution consonant with the use of force. There might be many other examples. Again, although some extrinsic facts might need to be assumed (such as the day of the year, in the example of the termination date), “readily determinable” is a manageable standard, noting that federal call-up orders will arrive on a governor’s desk with a strong, but rebuttable, presumption of validity.

AB 203 Is Consistent With the Role of States in the Federal System and Is a Proper Check on the Unauthorized Use of Executive Power.

Consistency With Traditional State Powers. AB 203 is not limited to orders relating to the Iraq War but covers "every federal order that places the national guard on federal active duty. . ." Bills in other states relating to ongoing wars in Iraq and in some cases Afghanistan may have the benefit of clarity and conciseness in determining at the legislative level that an AUMF has expired and is no longer valid. But in our view, bills like AB 203 that place the burden on a governor to present a detailed and reasoned argument if he or she believes that a federalization order does not pass muster provide additional safeguards against overstepping the limited state powers in this area--not the power to decide whether or when to use military force, but rather the power to determine that a federal order is clearly invalid on its face. In providing for individualized judgments by the Wisconsin Governor, AB 203 underscores the presumption, rebuttable as it is, that federal directives to states are valid. Moreover, AB 203 allows a governor to consider the most recent developments affecting his or her decision on what would necessarily be a solemn moment--deciding whether or not a federal military call-up order was invalid. (4)

Check on the Unauthorized Call of the National Guard to Federal Service. Throughout our history, the President and the Congress have claimed a share of war powers under the Constitution, which together have often totaled more than one hundred percent. In 1973 Congress adopted the War Powers Act (WPA), (5) usually, but inaccurately, called the War Powers Resolution. As well summarized by the Congressional Research Service, “The purpose of the War Powers Resolution is to ensure that Congress and the President share in making decisions that may get the U.S. involved in hostilities." No president has recognized the constitutionality of the WPA, which proponents of very broad presidential war powers see as conflicting with the Commander-in-Chief’s Article II powers and a time-consuming impediment, despite the WPA’s provision recognizing the President’s power to initiate the use of force in exigent circumstances without prior notice to Congress. President Bush did not feel bound by the 2002 AUMF, maintaining that his powers as Commander-in-Chief trumped the powers of the Congress to direct his conduct of the war, (6) including the power to set conditions on the use of force.

Second, other than the power of the purse, Congress has no practical power to enforce its conditions. Legislative attempts to set a timetable for the end of the war in funding legislation are subject to a presidential veto and an elusive veto override that must achieve a two-thirds majority in both houses of Congress. Congress could in theory withhold funding for the war altogether, but that alternative has never been seriously considered by Congress, since a vote to withhold funding for troops in the field is considered politically risky, and might not be effective in bringing the war to a close.

Paradoxically perhaps, the states, which do not share Article I or Article II war powers with the Congress and the President under the Constitution, may, in our view, question the federal call-up of their National Guards, not on the basis of objections to a particular use of military force, (7) but rather because a particular order is based on a congressional authorization that is no longer valid and enforceable.

Challenges to Wisconsin's Power to Enforce AB 203 if Enacted.

Though I have not had the opportunity to review testimony in opposition to AB 203, opponents in other states have objected to similar bills on grounds that states lack the authority to challenge federal call-up orders under the Supremacy Clause of the Constitution, which states:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
See, e.g., McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316 (1819).

Supremacy Clause questions arise where federal and state laws are in conflict, and the issue is generally whether federal law expressly or impliedly preempts a conflicting state enactment. See, generally, Ingersoll-Rand Co. v. McClendon, 498 U.S. 133 (1990) (Explicit language, structure, and purpose of the Employee Retirement Income Security Act of 1974 (ERISA) demonstrate a congressional intent to preempt a state common law claim that an employee was unlawfully discharged to prevent his attainment of benefits under an ERISA-covered plan.)

In our view, AB 203 cannot present a federal preemption issue, since there is no conflict between a state and federal statute. Under the language of AB 203 it is the conflict between a federal call-up order and the congressional act presumably triggering the authority to federalize the Guard that enables a Wisconsin Governor to resist the call-up, rather than a conflict between the state law and a federal enactment, like an Authorization for Use of Military Force. Cf. Printz v. United States, 521 U.S. 898 (1997) (“Federal law establishes policy for the States just as firmly as laws enacted by state legislatures, but that does not mean that state or federal officials must implement directives that have not been specified in any law.”) In the unlikely event that a Governor erred in declaring a federal order invalid, it would be an error by the Governor, and not an unconstitutional state law, that would be at issue. Only if Congress passed legislation requiring states to comply with invalid, as well as valid, federal orders would a Supremacy Clause issue arise.

The Exclusive Authority of the President. Opponents might argue that the federal Constitution grants to the President the exclusive power to determine whether the constitutional prerequisites for calling up the militia have been met, and that all persons are bound by that determination. A Supreme Court case sometimes cited in support of this proposition is Martin v. Mott, 25 U.S. 19, 20 1827 WL 3051 (1827). But Martin v. Mott does not confer on the President sole and plenary power over federalization of the Guard—far from it. That case focused on The Act of 1795, which provided “that whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States to call forth such number of the militia of the State or States most convenient to the place of danger, or scene of action, as he may judge necessary to repel such invasion, and to issue his order for that purpose to such officer or officers of the militia as he shall think proper.” (Emphasis supplied.)

Martin v. Mott , however, is confined to cases of actual invasion, or of imminent danger of invasion--hardly the kinds of AUMF's that Congress is likely to address in the foreseeable future. An even more fundamental point is that the law with respect to the state militias, now the National Guard, has evolved and is very different from the state of the law in 1827. See, generally, “The Military Clauses, the National Guard, and Federalism: A Constitutional Tug of War,” 57 George Wash. L. Rev. 328 (1988).

Would the Action of a Wisconsin Governor Under an Enacted AB 203 Survive a Court Challenge?

Courts have usually declined to hear war powers cases—cases challenging the exercise of war powers, typically the initiation of the use of military force—under the political question exception to subject matter jurisdiction. Courts would be unlikely to hear an action brought by a plaintiff, say, a Guard member, a legislator, or a governor, seeking a declaration that the 2002 AUMF is no longer in effect because its purposes have been achieved or are moot. Again: A political question.

But the reluctance of courts to accept jurisdiction of war powers cases at the present time cannot be cited as grounds for states to willingly comply with invalid federalization orders. If A 203 is adopted and appropriately applied, there may come a time when a federal agency seeks judicial assistance in compelling state compliance.

Win or lose in such an event, the issue of accountability in the exercise of war powers would be brought more clearly into the public square. It would be useful to know if Congress can impose enforceable conditions in an Authorization for Use of Military Force, and if so, what the path to enforcement might be. And if conditions cannot be imposed, then members of Congress and the public would know that AUMF requests to Congress are, in the political patois, straight up-or-down votes.

It would be useful to know if Congress can constitutionally adopt an AUMF that delegates such broad powers to a president that the intended division of war powers in the Constitution is thwarted.

Finally, it would be useful to know if states retain any of the powers with respect to their militias that the Founders believed were prudent, or whether even the power to resist invalid federal call-ups has been lost.

History makes all of these questions vital, and as study committees and Congress consider the future of war powers in America, this Wisconsin legislation might well play an important part in setting the agenda.

Conclusion:AB 203 is narrowly drafted, authorizes a Wisconsin Governor to do no more than due diligence would require in determining if a document on the Governor’s desk is or is not a valid federal order, is not in conflict with any federal statute, and serves to double purpose of insuring the proper use of the Wisconsin National Guard and promoting adherence to federal law.

(1) 10 USC (U.S. Code) §12301(a);

(2) Public Law 107-243;

(3) Perpich v. Department of Defense, 496 U.S. 334 (1990) decided that Congress has barred states from refusing to comply with certain federalization orders on the basis of the location, purpose, type, or schedule of such duty. See 10 USC §12301(f).

(4) The states have always been closely involved with their respective National Guards, which in turn have been involved in wars. But the federal authority to “call out the militia” has been the primary link to active federal service, beginning with the Militia Acts of 1792 and linked even more closely by the Militia Act of 1903, establishing the role of the National Guard of the United States; the National Defense Act of 1916, making the militias the primary reserve force and mandating use of the term "National Guard" for that force; and the National Guard Mobilization Act of 1933, making the National Guard a part of the U.S. Army.

(5) P.L. 93-148, passed over President Nixon’s veto on November 7, 1973.

(6) John Yoo, Deputy Assistant Attorney General, Office of Legal Counsel [to President George W. Bush], “The President’s Constitutional Authority to Conduct Military Operations Against Terrorists and Nations Supporting Them,” September 25, 2001;

(7) See Footnote 3, above.

Additional Information: 

Benson Scotch is retired attorney living in Montpelier, Vermont, and is general counsel to “Bring the Guard Home—It’s the Law!” Ben is a former executive director of the Vermont ACLU, former Chief Staff Attorney of the Vermont Supreme Court, and former staff counsel to Sen. Patrick J. Leahy, assigned to the Senate Judiciary Committee, Constitution Subcommittee. Ben is a 1956 graduate of Yale College and a 1961 graduate of Harvard Law School. He served in the United States Army from 1956 to 1958.