Article on Federalization of the National Guard
Blogging will be a bit light today--Clayton Cramer is coming over to be filmed for the documentary--but here's an interesting law review article on the Perpich case (written before the Supreme Court ruled. He notes that the lead-up to the case began when governors objected to their NG units being called to federal service for training missions in South America. The statutes then permitted a governor to block federal call-up for foriegn service in peacetime. Congress amended the law to provide that no governor could object based on the nature of a training mission.
The author notes:
The current system is characterized by federal control over almost all facets of the Guards. There is almost no area of operation in which the Guards are not constrained by federal control. The Officering Clause has been completely vitiated by the 'federal recognition' system: no unit receiving federal funds or support may place an officer in its table of organization unless that officer has been federally recognized. Federal recognition, which means the officer must meet standards identical to federal active duty officers, must also be 'renewed' upon promotion in rank or position. This scheme supplants the state's role in choosing and installing state officers, for no state's Guard can accomplish federally mandated missions without making use of federal funding and support.
State control in administering matters such as training, personnel, logistics, doctrine, and military justice has been eliminated by a system of federal conditional spending. This purse string has been used to put the states in a 'catch-22' situation¾retain autonomy and lose funding or accept funding and submit to federal control. In addition, legislation prohibiting the states from keeping 'troops' except as directed by the President has been read to apply to the militia. Although the term 'Troops' in the Constitution was probably intended to apply to standing armies, this seemingly unfounded application of the prohibition to the militia means that even if the states could afford to maintain their militia in accordance with federal standards without federal assistance, they would be forbidden to do so. Moreover, today the state National Guards are organized into federal divisional structures requiring the maintenance [Page 344] of state units that have no purpose other than to support a national defense strategy. For example, what possible use could a state have for a Military Intelligence Battalion whose primary mission is to collect and analyze tactical and strategic battle information?
This state of the law ignores important interests of the states. Specifically, it prevents states from independently, and some would say effectively, administering a state institution to meet state requirements. In addition, the states are now forced to participate in and contribute to a foreign policy with which they may vehemently disagree, and the development of which the Constitution denies them any meaningful political mechanism to change. In a more general sense, however, the current law prevents the states from legitimately acting as states. It intrudes upon that zone of governmental activity presumably reserved to the states in our federal system. Such harm to the states becomes crucial when analyzing the constitutionality of the current statutory scheme.