When State Governors Tried To Take Back Control of the National Guard
A West Virginia state lawmaker plans to re-introduce a bill next session that would require Congress declare war or call forth the state militia before the West Virginia National Guard could be released from state control and sent into combat. Currently, as The Intelligencer (of Wheeling) puts it: "the authority to activate the Guard rests with West Virginia’s governor."
But this doesn't quite describe the reality. State governors are expected to send state National Guard troops wherever and whenever the Pentagon orders.
So, in recent decades, whenever states or governors have attempted to have some say over what the Pentagon does with state troops, the Department of Defense has responded with threats.
For example, in the case of McGeehan's bill:
Leaders with the West Virginia National Guard opposed the "Protect the Guard" measure, and said it could have cost the state millions as military missions would have been deferred to other states if the measure had been enacted.
According to McGeehan, "After the success on Monday, the Adjutant General of the West Virginia National Guard (James Hoyer) — along with the military brass at the Pentagon — aggressively worked behind the scenes to kill the bill,"
The Pentagon threatened to withdraw both federal military spending and materiel from the state, with a National Guard spokesman saying:
If enacted, the (U.S. Department of Defense) couldn’t count on us to be deployable ... Missions and projects would go to other states, and there would be a loss of millions of dollars to West Virginia.
This isn't the first time the Department of Defense has essentially bribed state politicians into buckling under demands for total state acquiescence to Pentagon demands.
The Governors' Revolt of 1986
In the mid-1980s, the Reagan administration's use of American troops in Central America had become increasingly controversial. The administration's policy was being criticized for favoring brutal regimes in the region's civil wars. Moreover, at barely more than a decade since the end of the Vietnam War, many Americans were less than enthusiastic about another round of US military intervention.
Consequently, many within the Democratic Party were both ideologically and politically motivated to find new ways to oppose the Pentagon's use of National Guard troops in Central America.
In a report for the US Army War College, Historian Col. James Burgess, Col. Reid K. Beveridge, and Lt. Col. George Hargrove write:
Governor Joseph Brennan of Maine was the first to act. That year, he prohibited the deployment of 48 Maine Army Guardsmen to Honduras. ... Brennan's statement was immediately picked up by a number of other Democratic governors, who either stated they would refuse deployments of their troops or would refuse if tasked for a deployment. Principal among these were Governors Michael Dukakis of Massachusetts, Madeline Kunin of Vermont, Rudy Perpich of Minnesota, Bruce Babbitt of Arizona (although Arizona Guardsmen ultimately deployed), Richard Celeste of Ohio, Richard Lamm of Colorado and [Toney] Anaya of New Mexico. Expressing some reservations at the time also were governors Mario Cuomo of New York and Mark White of Texas.
Needless to say, this was inconvenient for the Pentagon which was used to using state troops to supplement deployments with a minimum of fuss, or any of the checks and balances that are supposed to be used in a federal system.
Washington, DC politicians certainly regarded the governors' resistance as a significant problem, with Congressman Sonny Montgomery of Mississippi recalling: "General Walker was telling me six-seven months before all this came to a head that they were having trouble with the governors. Even the governor of Mississippi was reluctant to let troops go into Central America. So I knew there was a problem developing there."
Montgomery noted "the commanders over in the Defense Department" were concerned the governors' actions "did affect the force structure of the military. They couldn't send people ... [the Pentagon] felt if they couldn't use these Guardsmen where they were needed in Central America, the whole force structure was in trouble."
Moreover, James Webb, the assistant secretary of defense for reserve affairs warned: "the governors' authority has become a vehicle to debate or influence foreign policy." Webb also noted that there are historical precedents for governors refusing to send troops when called up, even in times of war.1
The response in Congress consisted of passing what is now known as the Montgomery Amendment.
Congress was reluctant to totally void a governor's authority over deployment of state troops, as such powers had been recognized since the earliest days of the republic. But in an effort to further limit these powers, the Amendment stated that no governor could withhold a unit from deployment on account of "location, purpose, type or schedule of such deployment."
Governors did retain powers to deny deployment if that deployment would interfere with state needs for troops, such as quelling civil unrest or providing disaster-relief activities.
But this didn't end the debate. On January 22, 1987, Governor Rudy Perpich of Minnesota filed suit in US District Court of St. Paul challenging the constitutionality of the Montgomery Amendment, asserting it violates the Militia Clause of the Constitution.
Events Escalate in Ohio
While Perpich v. Department of Defense was working its way toward the US Supreme Court, the controversy between the Pentagon and the governors reached its most tense point in Ohio.
In 1987, the Pentagon ordered the Ohio National Guard adjutant general to deploy survey and engineering teams to Honduras in early 1988. Governor Richard Celeste then intervened and ordered the Guard to not deploy. Given that the state's adjutant general answers to the governor as his commander-in-chief, the Guard declined the Pentagon's order.
The Defense Department responded by playing hard ball.
Defense Department personnel began to develop a plan to remove all but a single unit of the National Guard form Ohio. Specifically:
the Ohio Guard grossly underestimated what [National Guard Bureau Chief Lieutenant General Herbert R.] Temple had in mind for them. Most of them apparently believed they stood to lose the engineer brigade headquarters (including one general officer as the commander) and perhaps the subordinate engineer battalions. None, however, dreamed — it seems — that the Ohio National Guard could be made to disappear over a period of a very few months except for only the 73rd Infantry Brigade. And. in particular, that the Ohio Air National Guard could be made to cease to exist.
The primary purpose of all of this was to use the Pentagon's financial power to take resources out of the state, thus reducing state revenue and economic activity generated by federal spending inside the state. The local media began running stories about how the move would lead to lost jobs.
Moreover, the Pentagon's move would have forced the state to fund all of its own remaining National Guard units. The bill would have been $256 million.
Eventually, the governor caved, and the Ohio National Guard deployed as the Defense Department wished.
In 1990, the US Supreme Court sided with the Department of Defense, and ruled the Montgomery Amendment was binding.
For the moment, the matter was settled.
Why the Pentagon Has so Much Power Over State Troops
Today, when the militia clause of the Second Amendment is mentioned, it is not uncommon to hear the claim that "the National Guard is the militia."
This stretches the truth, to say the least.
Today's National Guard is nothing like the independent state militias that existed throughout the nineteenth century up until the adoption of the Militia Act of 1903. Prior to the 1903 act, state militias were primarily state funded, and were not integrated into the federal government's military structure except in times of declared war.
The Militia Act created a new type of "militia" which replaced the old decentralized model with a new system in which state National Guard units were to receive federal funding and were to be integrated into the national military as a permanent reserve force.
But even after 1903, the state National Guards retained a high degree of independence compared to today. That was further eroded with the National Defense Act of 1916 which allowed National Guard United to be deployed outside their own states — and even outside the country — for much longer periods of time than had been previously allowed. The 1916 Act further increased federal funding — and thus federal control — over National Guard units.
Another major change came in 1933. At that time, new amendments to the National Defense Act were passed which made members of the National Guard units members of both their state's National Guard, and the federal military.
Further integration occurred throughout the following decades, culminating with the adoption of the "Total Force Policy" in 1970. According to Burgess, et al., this meant National Guard units became fully "woven into the fabric of the Defense establishment."
By 1986, the idea of an independent state National Guard was all but dead. As we have seen, some governors briefly tried to revive the idea, but it was struck down by the courts, and by the Pentagon's immense power over military resources within each state.
This isn't to say that state governments, if they wanted to be, couldn't still be a nuisance for the Pentagon. The Defense Department's threats against West Virginia in the case of the McGeehan bill helps to illustrate this.
The Pentagon is used to state governors asking "how high?" whenever being told to jump. But the Pentagon keeps an ace up its sleeve in case any state politicians get uppity. The Pentagon will simply threaten to remove millions of dollars worth of spending from any state which refuses to immediately comply.
So long as most Americans blithely accept whatever new wars and invasions the Pentagon plans, this strategy will probably keep working.
- 1. During the War of 1812, the states of Connecticut and Massachusetts both refused to respond to federal demands for state troops. During the Civil War, the governor of Kentucky — which had declined to secede — nonetheless withheld troops from federal service. This was eventually reversed when pro-Lincoln politicians took control of the state government.