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Bush v. Federalism (Again) - Expanding Presidential Power Over the National Guard:

Both Republican and Democratic Governors are opposing a provision in a Bush Administration-supported appropriations bill that would greatly expand presidential power over the National Guard, as the Washington Post explains here:

The nation's governors on Saturday launched a bipartisan drive to block a move to expand the president's authority to take over National Guard troops in case of natural disaster or homeland security threats.

At a closed-door luncheon on the opening day of the annual summer meeting of the National Governors Association, the chairman, Arkansas Gov. Mike Huckabee (R), told colleagues that a provision in the House-passed defense authorization bill would end the historic link between the states and their Guard units.

Huckabee and the association's vice chairman, Arizona Gov. Janet Napolitano (D), plan to ask all the governors at the session to sign a letter of protest Sunday aimed at killing the provision when House and Senate conferees meet next month on the bill.

Huckabee told reporters that the move to shift control of the Guard to the president during national emergencies "violates 200 years of American history" and is symptomatic of a larger federal effort to make states no more than "satellites of the national government."

Iowa Gov. Tom Vilsack, the senior Democrat, called the proposal "one step away from a complete takeover of the National Guard, the end of the Guard as a dual-function force that can respond to both state and national needs....."

Under the provision, the president would have authority to take control of the Guard in case of "a serious natural or manmade disaster, accident or catastrophe" in the United States.

Huckabee said he does not know if President Bush wants that authority, but said "the administration is supporting this."

For the text of the National Governors' Association official letter to Congress opposing this provision, see here.

As I have pointed out in my forthcoming article on the Raich medical marijuana decision, the Bush Administration has promoted numerous initiatives to expand federal power at the expense of the states, including in the No Child Left Behind Act, the Federal Marriage Amendment, the Terri Schiavo case, assisted suicide, medical marijuana, and other policies. This has caused a number of liberal academics, pundits, and politicians (see the article for cites) to rethink their traditional support for a high degree of political centralization. The opposition of liberal Democratic governors to Bush's plan to expand federal control of the National Guard is an extension of the trend.

There are two key questions about the Administration-supported plan to expand federal authority over the National Guard: is it constitutional, and is it a good policy?

The first question is easier to answer. Under Gonzales v. Raich, Congress' constitutional power to regulate "Commerce . . .among the several States" has been interpreted to include virtually any activity that has even a remote connection to or effect on the national economy (detailed explanation in my article linked above). The National Guard surely has substantial economic effects, so Congress has the right to regulate it under Raich.

What if, however, you believe as I do that Raich was wrongly decided? Congress probably still has the power to enact this legislation, but the answer is less clear. Article I, Section 8, Cl. 15 of the Constitution gives Congress the power "To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions." Section 8 Clause 16 gives Congress the power "To provide . . . for governing such part of the [militia] as may be employed in the service of the United States," which presumably includes the power to put them under presidential control.

Dealing with a "serious natural or manmade disaster, accident or catastrophe" does not count as suppressing insurrections or repelling invasions. It often will, however, involve "execut[ing] the laws of the union," as any "serious" disaster is likely to be accompanied by lawlessness of the type that we saw last year during Hurricane Katrina. To be sure, most of the crimes that occur in the wake of natural disasters are likely to be state rather than federal offenses (e.g. - the looting and assault that occurred in the first few days after Katrina). Enforcing these laws does not count as "executing the laws of the union," which refers to federal law. In practice, however, a mass outbreak of lawlessness over a wide area is likely to involve violations of federal law as well as state law. For example, looters might damage federal property, interfere with the delivery of the U.S. Mail, and so forth. Thus, I tentatively conclude that the proposed National Guard bill is likely to be Constitutional, at least as applied to most real-world "serious natural or manmade disasters."

Is it, therefore a good idea? On that score, I have serious doubts. Presidential control over National Guard units engaged in combat makes good sense in the case of an attack by a foreign enemy, since it is important for all our forces to be under a unified command. As the text of the Constitution suggests, it also makes good sense in the case of large-scale "insurrections," especially if local authorities actually support the rebellion (as during the Civil War) or if they are using the National Guard to obstruct the enforcement of federal law (as when John F. Kennedy nationalized the Alabama Guard to prevent Governor George Wallace from using it to obstruct desegregation). Finally, presidential control may be preferable to state control in cases where a natural disaster effects a large number of different states simultaneously; if state governors are left in control in such a situation, each will prefer to keep his Guard troops in his own state rather than allocate them to where they may be most needed.

In the case of a disaster that primarily affects just one state, or a small number of neighboring states, however, the case for presidential control is much weaker. State governors have stronger incentives to address such local disasters effectively than the president does and they are likely to be more familiar with local conditions. Mishandling a major natural disaster within his own state will be politically very costly to a governor, while similar mistakes will have much less impact on the president's political career, since most of his constituents will not be affected, and in any event the public judges presidents on a much wider range of issues than governors.

Things are a bit more complicated if the disaster affects 2 or 3 neighboring states rather than just one. However, in such cases neighboring state governments will have strong incentives to make joint plans ahead of time in order to optimize the use of their resources. Unlike in cases where a large number of states are involved, transaction costs and negotiation costs are likely to be relatively low, or at least no higher than those imposed by federal control.

A final troubling aspect of the National Guard provision before Congress is that it seems to leave it up to the president himself to decide what counts as a sufficiently "serious" disaster to justify federalizing the Guard. This makes it all too easy for the president to declare the existence of a "disaster" on the basis of flimsy evidence and then take control of Guard units in order to punish state governments who oppose his political agenda. To be clear, the danger is not that the President would use the Guard to attack state governments militarily, but that he could use control of the Guard as a political weapon in order to force states to adhere to his agenda or risk losing control of their Guard units.

If you are a liberal Democrat, would you really want President Bush to have this power? If you are a conservative Republican who believes that Bush wouldn't abuse such authority, ask yourself how you would feel about Hillary Clinton having the same power if she gets elected president in 2008.

For these reasons, I think that the measure goes too far, even though it is probably constitutional. It is also unfortunate that it is part of a broader pattern of subordinating federalism concerns to advance the Administration's political agenda. In this case, unlike most of the others, Bush's policy is under attack from many in his own party, and hopefully that will persuade him to desist.

UPDATE: Some commenters claim that the National Guard is not part of the state "militia" referred to in Article I, Sect. 8, Cl. 15-16 of the Constitution and is a purely national armed force subject to unlimited federal control. I don't think that this correct. In Perpich v. Dept. of Defense, 496 U.S. 334, 339 (1990), the Supreme Court recognized that National Guard units "maintain an identity as . . . part of the militia described in Art. I, § 8, of the Constitution." For a detailed discussion of the legal status of the Guard, see here.

UPDATE #2: I fully recognize that part of the motivation for this proposal is the reality of state and local government failure in Louisiana during Hurricane Katrina. I have blogged about some of those failures here. On the other hand, President Bush and the federal government also made numerous mistakes. Moreover, state and local officials in Mississippi (which was also hit hard by Katrina) seem to have performed reasonably well (see, e.g., here and here). While there was plenty of blame to go around during the Katrina disaster, it does not prove that federal control of the Guard during emergencies is preferable as a general rule.

davod (mail):
Mainly because one louisianna governor could not get her act together.
8.8.2006 4:43am
PersonFromPorlock:
Didn't Perpich pretty much settle the issue of who controls the National Guard, in favor of the federal government?
8.8.2006 7:27am
Brett Bellmore:
This whole long post seems to be predicated on the notion that the National Guard is the "militia" refered to by the Constitution. It is not. It's just an oddly configured branch of the army, (Has been since it was nationalized in the 1930's.) which is why there's no constitutional issue here at all, and why it's members can be sent abroad.

The state militias are today refered to as "state defense forces", and still exist, separate from the National Guard. A law nationalizing those would indeed be a violation of federalist principles.
8.8.2006 7:28am
Florida Lawyer:
Like Brett Bellmore, I'm not sure that the federal Constitution's "militia" is coextensive with the National Guard.

Under Florida's Constitution, for example, the militia "shall be composed of all ablebodied inhabitants of the state who are or have declared their intention to become citizens of the United States; and no person because of religious creed or opinion shall be exempted from military duty except upon conditions provided by law."

Article X, Section 2, Fla. Const.

I agree that the proposal is probably bad policy, though I'm open to persuasion.
8.8.2006 10:35am
Just me:
I think it's lousy policy, but I also sympathize with the Administration's Katrina-drive impulse, for this reason. The "masses" held the Prez responsible for Katrina-response failures, EVEN IF those failures were really the mayor's and governor's fault. I would rather see these things kept local, but I'd also like to see anger directed where it belongs, at the locals. But if the Prez is going to get yelled at regardless, then I can see why he'd say, "hey, if I take the blame, I should at least get to run the show to take a shot at getting it right."

So, anyone who wants to oppose this also needs to work to get citizens to understand where to kvetch. And things that are already overly-nationalized, e.g., education, need to be localized, too. As it stands, education is a perfect example -- our local money-wasting, low-performing school bureaucracy blames it all on the State and on Washington, and there is just enough truth there that it's plausible. And the State blames locals and DC. And they're all right -- they all suck.

Give me just one agency to yell at, please.
8.8.2006 10:48am
PatHMV (mail) (www):
I agree with your legal analysis, but as Just me points out, the political consequences need to go with the responsibility. In the aftermath of Katrina, many politicians were making hay (while people were dying) pointing fingers up and down the chain. A lot of Democrats blamed the President for all sorts of things which previously had been the responsibility of the states (and note recent Democratic comparisons between the evacuation of American citizens in Lebanon to the Katrina evacuation). There was certainly plenty of blame to go around, but the President took a lot of heat from some segments for things over which he had no control, or over which he could only take control by wresting total power from the governor.

Asking for only responsibile criticisms by the opposition may be a bit much to expect, but it's what we need to keep these things in the proper perspective.
8.8.2006 11:22am
Steve:
Do people really think Bush was like "since I don't have control of the National Guard, I might as well go to San Diego and play guitar"?

Of course the mayor and governor share blame. But attempting to blame the administration's nonresponse on a lack of legal authority is pathetic and shameless.
8.8.2006 11:29am
Charlie (Colorado) (mail):
Attempting to claim the administration didn't respond is pathetic and clueless. Check out the Popular Science articles.

But let's assume that the federal government should have responded more actively than it did: then isn't this exactly what they should be doing? It would seem that, unless we think that FEMA shuld have tens of thousands of relief workers available at all times to be sent to disaster areas, isn't the issue precisely tht FEMA had to work through the states, and was unsuccessful in doing so in Louisiana?


8.8.2006 11:46am
PatHMV (mail) (www):
Steve, I live in Louisiana and have at least a few acquaintances in political circles, in and out of the administration. There were a number of specific things the President could have done, with a formal request from the governor. She specifically refused to make those requests. Ignoring that lack of legal authority would have dealt a severe blow to our federalist system and woul have caused many more problems than it solved. As it was, the guys on the ground found a way around a lot of technical legal problems (they'd embed one La. National Guard guy with a bunch of Marines; the National Guard guy would be officially credited for all of the hundreds of arrests made by the Marines), but the President cannot just out and out ignore the law, as you seem to suggest he should have.
8.8.2006 11:54am
JunkYardLawDog (mail):
Nagin couldn't find the keys to the city buses during Katrina, but didn't have trouble finding those keys to bus in former residents so they could vote for his re-election. The President met with the Governor on board a parked airplane for many hours trying to get the governor to approve sending in the guard and unifying their command. She and her staff were exchanging emails about how she needs to look strong and in-charge and refused to give up command and control over the Louisiana Guard and refused for another day or so the federal government's request that she request guard from other states be sent in.

Given the above and more I understand why many in Congress and the administration would push this. On its surface it seems to me as well a questionable policy, but as I think about it. As long as the bill didn't try to change the law/policy/tradition that guard units from OTHER states will not be sent into a state unless requested by the Governor of said state, then perhaps this change isn't really much of a change at all.

Says the "Dog"
8.8.2006 11:56am
Andy Freeman (mail):
If the feds fund it, the feds should control it.
8.8.2006 12:33pm
Martin Grant (mail):
>but the President cannot just out and out ignore the law, as you seem to suggest he should have.

Unless he added a signing statement.
8.8.2006 1:37pm
Martin Grant (mail):
>If the feds fund it, the feds should control it.

If the Feds fund it, they should be able to withhold their funding if they don't like the way it's being used.
8.8.2006 1:39pm
Thorley Winston (mail) (www):
As I have pointed out in my forthcoming article on the Raich medical marijuana decision, the Bush Administration has promoted numerous initiatives to expand federal power at the expense of the states, including in the No Child Left Behind Act, the Federal Marriage Amendment, the Terri Schiavo case, assisted suicide, medical marijuana, and other policies. This has caused a number of liberal academics, pundits, and politicians (see the article for cites) to rethink their traditional support for a high degree of political centralization.


So how many of these same “liberal academics, pundits, and politicians” have called for abolishing the Department of Education instead of just the part that might lead to vouchers or holding government schools accountable? Or called for repealing Medicare and Medicaid and oppose any sort of price controls on pharmaceuticals instead of just trying to make sure physicians can use drugs to kill their patients or that hop heads can smoke dope for “medicinal purposes”? Or called for overturning Roe v Wade and Lawrence v Texas so that decisions about abortions and sodomy get determined by the States rather than the federal courts?

The opposition of liberal Democratic governors to Bush's plan to expand federal control of the National Guard is an extension of the trend.


A “trend” that will undoubtedly end upon the election of the next Democratic president. You may not recall this but when Clinton was inaugurated in 1992, there was a story about how at his inauguration party one of the guests saw some military planes fly overhead and said something to the effect that he never liked the military before but now that there was a Democrat in the White House, those were “our planes” and it was “our military.”

To be clear, the danger is not that the President would use the Guard to attack state governments militarily, but that he could use control of the Guard as a political weapon in order to force states to adhere to his agenda or risk losing control of their Guard units.

If you are a liberal Democrat, would you really want President Bush to have this power? If you are a conservative Republican who believes that Bush wouldn't abuse such authority, ask yourself how you would feel about Hillary Clinton having the same power if she gets elected president in 2008.


Answer: I wouldn’t care because (a) the National Guard is part of the Army and Air Force and not a State militia, (b) the President is the commander-in-chief, (c) the danger you invented is unlikely to happen because post-Katrina every future president knows that s/he will be blamed for any poor response during a natural disaster (even when the incompetence and the responsibility came from the State and local level) and none of them will want to risk political suicide of using the National Guard as a political weapon if it affects their ability to respond to a disaster.
8.8.2006 1:44pm
Dave Griffith (mail):
I have a feeling this is one of those bills whose purpose is to get opponents on record as opposing it, so that it can be used against them in campaign commercials.

I love those bills.
8.8.2006 1:55pm
Mary Katherine Day-Petrano (mail):
A lot of questions posed for just one thread.

I agree Raitch was wrongly decided, but for a different reason than Ilya. I don't have a problem with an expansive Commerce Clause, since such tends to help advance disability causes. However, the problem with Raitch was the failure of the Supreme Court to take it far enough. If the commerce Clause is so expansive, then the result of the case should have been to legalize medical marijuana. How so? One of the federal obligations under the Rehabilitation Act of 1973 and the Americans With Disabilities Act is to conduct self-evaluations and correct anything that is discriminatory -- including "lesser" health care opportunities. Neither the State nor Federal governments have fulflled their mandatory federal obligations to self-evaluate the medicinal value of marijuana; hence they remain in violation of the Nation's disability anti-discrimination laws. What about the Controlled Substances Act? Ah, but the Rehabilitation Act and ADA preempt (amend or partially repleal) the CSA to the extent of medical marijunana.

Another reason the 50 States Bars should be requiring mandatory CLEs and MCLEs in the disability anti-discriminaton laws. And however the non-disabled anti-medical mariuana crowd think they see the issue, I can assure that crowd that my first hand personal experience has been that appx. 90% of disabled people, particularly those with intractible chronic pain know medical marijunan is far superior with less bad side effects than Oxycontin, Vicodin, Duralgesic patches, etc.

The Terri Schiavo case was really redundant of what Title II of the ADA already required of the State of Florida. Despite the fact the State and Federal judge who sat on that case are receiving all sorts of awards for having euthanized a disabled person, the one stark fact about that case was the failure of either the State or FEderal Court files to contain the required reasonable accommodation order eiyther granting or denying Ms. Schiavo her pattern recognition software to enable her to speak her own wishes. Under both Florida Supreme Court precedent (Barry v. Burdines, 1996) and Eleventh Circuit precedent (Shotz v. City of Plantation, Fla.), any Florida State law in conflict with the requirements of the ADA is void, unenforceable, and feederally preempted -- including the Florida guardianship proxy law that authorized Miachel Schiavo to seak for Terri in circumvention of her reasonable accommodation rights to speak for herself. Ahhh, but Congress had to enact a redundant law to kick Florida in the seat of the pants for the resistance and hostility of Florida State courts and the Eleventh Circuit to obey the ADA. The entire case was wrongly decided, Terri died, and what more can be said?

No Child Left Behind (a/k/a 'all disabled children and adults left behind') is another one -- in the rush to standardize every conceivable test in America for children and adults, one thing has been left out of the equation -- again the fact NCLB is preempted (amendned or repealed) by the express provision of the ADA (42 USC Sec 12201(b) "other federal laws") to the extent the standardization violates the individualized assessment the Supreme Court has told us must occur with the disabled, as well as th alternative assessment methods the ADA requires (i.e., the test itself must be altered in favor of portfolios of work, job performances, other equivalent testing scores, etc.) Unfortunately, many get the idea alls that is required is to provide accommodations to the standardized test itself. It is not.

As far as federalizing the National Guard, I have mixed feelings. Now that the USA PATRIOT Act authorizes a Secret Service National police force under direct commend of the Secretary of Homeland Security, on a practical level, what is the difference to federalize also the National Guard. But the other question, should we trust in the command of thse Nationalized police forces/National Guard to the present Commander in Chief -- many of us agree the notin of this is scary.
8.8.2006 3:26pm
TC (mail):
Wow.

Not many people can turn a post about the National Guard into a diatribe about Terry Schiavo and the rights of the disabled.
8.8.2006 3:40pm
JunkYardLawDog (mail):
So what's the ADA argument with "no child left behind"? Are we supposed to pretend that disabled people can read and write at grade level when they can't? It seems like that is what Mary Katherine is arguing? Would such a rule help or hurt the disabled? I think I know the answer. Its the same answer as a rule that says we have to pretend that a segment of minority children can read and write at grade level when they can't.

What is really at stake, besides the actual non-pretend reading and writing levels of the children, are the power of teacher's unions that desperately want to hang on to their political power and dues money even at the expense of children's educations.

Says the "Dog"
8.8.2006 6:56pm
Snark:
I agree with TC. That was impressive.

Then again, I fully expect some posters from other threads to pop over to blame Katrina on Israel.
8.8.2006 7:01pm
Jeff Shultz (mail):
MK Day-Petrano,

Secret Service National Police Force? You mean the guys in uniform that guard the White House and Capitol building?

As for the events that inspired this piece of legislation, blame CNN and the rest of the alarmist Bush-hating MSM for their horrible reporting of the events during and after Katrina hit NOLA.
8.8.2006 7:29pm
RealityCrutch (mail) (www):
Well I don't know how 'secret' that federal Police force is. Just last week I drove next to a government SUV clearly marked as 'Federal Police force', way over here in Texas. I thought I'd slipped into a twilight zone episode.
8.9.2006 12:13am
David M. Nieporent (www):
Not many people can turn a post about the National Guard into a diatribe about Terry Schiavo and the rights of the disabled.
Ms. Day-Petrano is talented; she could turn a weather report into a diatribe about the "rights" of the disabled.

(I did enjoy her argument about the ADA "amending or repealing" a law that was passed a decade after it. They may be handicapped, but they still do time travel.)
8.9.2006 2:34am
markm (mail):
It appears that Ms. Day-Petrano also used time travel to skip that time period when Terri Schiavo's autopsy was in the news. It turned out that, just like the experts who testified for her ex-husband claimed, most of her brain was long gone. There are no accomodations that let someone communicate when there isn't enough brain left to form a thought.
8.9.2006 5:40pm