Release-Opinion: It’s Time to Defend the Guard

January 30, 2020
It’s time to Defend the Guard
By Lenny LaBarbiera
Foreign affairs is generally thought to be an area for which the federal government is solely responsible. This view is based on our country’s experience since the adoption of the U.S. Constitution.

Prior to that, the individual states routinely engaged in what are now considered matters of national concern, such as tariffs.

Given the need for speaking with “one voice” on international issues, a return to the Articles of Confederation is not possible. However, there is nothing inherent in either the formulation or implementation of U.S. foreign policy which suggests that the individual states cannot, or should not, have any role to play.

In fact, Congressman Daniel Webster of Massachusetts, later Secretary of State to three presidents, said in 1814 that it is our state’s duty to act regarding potentially life-and-death decisions such as sending New Jersey’s National Guard personnel on long-term deployments to foreign conflicts. “It will be the solemn duty of the state governments to protect their own authority over their own militia, and to interpose between their citizens and arbitrary power (by the federal government).”

Given the international conduct of the U.S. today, the need for such involvement by the states is evident.

Our country is engaged in hostilities throughout the Middle East without any constitutionally-required declaration of war by Congress.

In Ukraine and other countries in northern and eastern Europe, it appears the Washington elite is interested in restarting the Cold War — and risking a nuclear confrontation in the process.

More generally, our foreign policy decisions and the outlay of resources, human and financial, required to carry them out are being dictated by our so-called “allies”, Mideast and otherwise, or lobbyists working on behalf of foreign countries, rather than based upon a consideration of our country’s best interests.

The states could take an active foreign policy role without the need for a constitutional amendment.

Article I, Section 8, Clause 15 provides that Congress may call up the militia (a/k/a the National Guard) to execute the laws of the union, suppress insurrections and repel invasions. Taking sides in foreign civil wars certainly doesn’t fall in these categories.

Yet tens of thousands of members of the National Guard, which is still governed by the Constitution’s Militia Clause, have been routinely sent to foreign countries to engage in military operations unconstitutionally.

Each of the fifty states should adopt legislation to limit the use of their National Guards to the three scenarios stated above.

The course of action I propose isn’t novel. The West Virginia House, recognizing such unauthorized action by the federal government, has proposed legislation — the “Defend the Guard Act” — which would prohibit the deployment of that state’s National Guard except for one of the above-listed purposes, or unless Congress has declared war.

Similar bills have been introduced, so far, in Hawaii, Michigan, Oklahoma, and South Carolina, and other states are considering similar action.

In addition, Governor Baker’s decision last year to refuse to send the Massachusetts National Guard to the U.S.-Mexico border (as well as Governor Hogan’s decision to recall the Maryland National Guard from there) underscores the need for national debate on this issue.

As a republic, the United States is not supposed to go to war based upon the whim of a monarch, oligarchy or cabal of warmongers.

Our Founding Fathers put in place a governmental structure under which our nation would become engaged in war only after Congress had carefully considered the merits of the proposed military action. Unfortunately, such deliberation by our representatives no longer takes place.

The irony is that when Congress does involve itself in foreign affairs, it’s to disrupt ongoing diplomacy — as we saw with the negotiations over the Iran nuclear deal, which is undoubtedly within the purview of the executive branch of the federal government.

Congress, which was supposed to be a check on any possible presidential imperial ambitions, has instead become a willing accomplice by ignoring its constitutional responsibilities. This is happening while crucial domestic needs, such as infrastructure and affordable housing, go unmet.

Rituals such as honoring the flag, reciting the Pledge of Allegiance and singing the Star-Spangled Banner are all well and good, but they make a mockery of true patriotism if we allow our sons and daughters to be deployed overseas in harm’s way in violation of the U.S. Constitution.

I urge my fellow citizens to immediately contact their state representatives, governor, and local public officials to begin this constitutional “rebalancing” process in order to preserve these United States of America.


Lenny LaBarbiera resides in Hillsborough, New Jersey, graduated Phi Beta Kappa from Rutgers College, and holds a law degree from Fordham University. He also earned an MBA in finance and international business from Columbia University. He is licensed to practice law in New Jersey and New York.

For more information: DefendTheGuard.US, a project of BringOurTroopsHome.US.

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