Joint resolution relating to the legality of Vermont national guard military forces serving in Iraq and the federal deployment of the national guard

Offered by:  Representative Fisher of Lincoln

Whereas, under Article I, Section 8, Clause 15 of the United States Constitution, Congress may call forth the militia to execute the laws of the union, suppress insurrections, and repel invasions, and

Whereas, since 1933, federal law has provided that persons enlisting in a state national guard unit simultaneously enlist in the national guard of the United States, a part of the U.S. Army, and the enlistees retain their status as state guard members unless and until ordered to active federal duty and then revert to state status upon being relieved from federal service, and

Whereas, in 1986, Congress passed and the President signed the “Montgomery Amendment,” which provides that a governor cannot withhold consent with regard to active duty outside the United States because of any objection to the location, purpose, type, or schedule of such duty, and

Whereas, under the U.S. Constitution, the governor of each state controls that jurisdiction’s national guard unit, but Congress may authorize the call-up of a unit for active federal duty, and

Whereas, the War Powers Act of 1973 (Public Law 93-148) specifically limits the power of the President of the United States to wage war without the approval of Congress, and

Whereas, in October 2002, the U.S. Congress authorized military force under the Authorization for the Use of Military Force Against Iraq, Public Law

No. 107-243 (AUMF), a law enacted in response to a presidential request under the War Powers Act, and

Whereas, the AUMF stated in part that the President is authorized to use the armed forces of the United States as he determines to be necessary and appropriate in order to defend the national security of the United States against the continuing threat posed by Iraq, and to enforce all relevant United Nations Security Council Resolutions regarding Iraq, and

Whereas, the AUMF contained neither a termination date nor a process or procedure to determine when the authorization should terminate, and

Whereas, U.S. forces, including members of the Vermont national guard, and Guard members from other states, have long since addressed the purposes recited under the AUMF, and Iraq does not pose a continuing threat to the national security of the United States, nor is there an extant United Nations Security Council resolution to be implemented, and

Whereas, the President may not maintain U.S. forces, and in particular members of the Vermont National Guard, in Iraq other than for the purposes set forth by Congress in the AUMF, and

Whereas, without a specific date for withdrawal of U.S. forces from Iraq in the AUMF, or a method or formula for determining the time for withdrawal, and in the absence of Congressional legislation curing these omissions, the President is required to order the withdrawal of troops within a reasonable time and in a reasonable manner, and

Whereas, the President has taken no such action, and

Whereas, other than the AUMF, there is no authority under the Constitution or the laws of the United States for the continued presence of Vermont national guard members in Iraq, and

Whereas, the maintenance of Vermont national guard members in Iraq beyond the time and scope set forth in the 2002 AUMF has resulted in significant harm to Guard members and their families, including death and injury, loss of time together, and financial hardship, now therefore be it

Resolved by the House of Representatives:

That the House of Representatives, in light of the expiration of AUMF, urges the governor to withhold consent from any further deployment of the Vermont national guard under the purported authority of that authorization, and be it further

Resolved:  That in the absence of an effective authorization for the use of military force, this legislative body urges the President to withdraw from Iraq all members of the Vermont National Guard now serving in the National Guard of the United States, subject only to conditions of time and manner specifically required to assure their safety and well-being during removal operations, and to restore their status as members of the Vermont national guard, and be it further

Resolved:  That the House of Representatives affirms that the Vermont national guard should be limited to service on behalf of the state of Vermont, unless called into federal service pursuant to a declaration of war or a duly enacted federal statute authorizing the use of military force, and be it further

Resolved:  That the attorney general is requested and encouraged to appear in any state or federal court with jurisdiction over the deployment of the Vermont national guard to defend any decision of the governor and adjutant general with respect to their decision to deploy or not deploy the guard, or, in the alternative, to initiate litigation in such courts with the aim of obtaining a judgment that the AUMF has expired, and declaring that, accordingly, the governor may withhold consent to any further federalization and deployment of Vermont national guard troops until and unless that original authorization is expressly amended or extended by Congress, and be it further

Resolved:  That the House of Representatives requests the members of the Vermont Congressional Delegation to introduce legislation that restores the powers of state governors to withhold consent to federalization of a state’s national guard, except where a declaration of war has been adopted or where the United States faces attack or invasion and the President has invoked powers authorized by an Act of Congress to address those circumstances, and be it further

Resolved:  That the clerk of the house be directed to send copies of this resolution to the President, the governor, the Vermont adjutant general, the U.S. Department of Defense’s National Guard Bureau, and the Vermont Congressional Delegation.