Over the objections of state governors from both parties, Congress and the President have taken greater control for Washington over state National Guards. The new statutory provision — which took effect two weeks ago — begins to alter the balance struck at the Constitutional Convention of 1787 over who controls state “militias” (now called the National Guard).
The clause at issue is nestled within the immense Defense Appropriations Act, which the President signed into law on October 19. The provision expands the president’s control over National Guard troops responding to “a serious natural or manmade disaster, accident or catastrophe,” supposedly aiming to avoid the sort of confusion that followed Hurricane Katrina a year ago. Having vastly increased federal powers as part of the War on Terror, Republican leaders in Washington are applying the same formula to disaster preparedness.
Governors, however, are not buying it. According to the National Governors Association, the provision threatens to “usurp” the authority of governors “to coordinate all resources to prepare for, respond to and recover from disasters.” Republican Governor Mike Huckabee claimed the shift in control “violates 200 years of American history.” So what does the Constitution have say on this subject?
As finally adopted, the Constitution allows Congress to call forth militias in three circumstances: to “execute the laws of the union, to “suppress Insurrections,” and to “repel invasions.” The last two provisions are not relevant to the new statute, which concerns neither invasions nor insurrections (by which the Framers really meant slave revolts). The first situation sounds broader – “to execute the laws of the union” – though it was directed by the Framers at disciplining recalcitrant states, not responding to national disasters.
That language has its roots in a debate in August of 1787, when it was proposed that the new national government should regulate state militias. Having already sweated through three months of deliberations in Philadelphia’s steamy summer, many delegates reacted angrily to the proposal.
“The states never would nor ought to give up all authority over the militia,” protested John Dickinson of Delaware, while a Connecticut delegate worried that central control of militias would not “accommodate itself to the local genius of the people.” After Elbridge Gerry of Massachusetts predicted that the proposal would leave “as black a mark as was set on Cain,” the question was referred to a committee for further study.
Days later, the committee reported a compromise allowing the national government to regulate militias only when “employed in the service of the United States.” Otherwise, the states would control their militias, train them according to national standards, and appoint all officers.
In an emotional opposition to a motion to prevent the states from appointing top militia officers, Gerry again saw a direct threat to American liberty. He insisted that the delegates might as well “at once destroy the State governments.” The motion failed.
Under the final Article I of the Constitution, Congress may call out a militia for three specific purposes (executing the law, repelling invasion, suppressing insurrection), and may provide for its organization, arming, and discipline when it is “employed in the service of the United States.” Otherwise, militias are state organizations.
By increasing federal power over the National Guard, the new provision shifts the militia compromise struck in 1787. Though the justification for the change – to improve the admittedly botched response to Katrina – is superficially appealing, it is not particularly persuasive.
The many errors committed before and after that devastating hurricane certainly show that policy changes are needed. Indeed, a White House Report released in February specified 125 policy recommendations (not counting sub-paragraphs) to improve disaster response in the future.
Yet that exhaustive list of improvements, and many others, should be the focus of policymakers before they disrupt the constitutional balance between federal and state governments. The militia compromise of 1787 aimed to preserve the role of state governments which are closer to, and directly answer to, the people. For example, in the aftermath of a botched disaster response, surely a state governor is far more likely to be held accountable by that state’s voters than will a remote administration in Washington, elected by voters in all fifty states.
For a party that piously espouses an “American values agenda,” the Republican leadership shows little concern for the values of local accountability and control, values that are as important today as they were at the Philadelphia Convention almost 219 years ago.