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Who should command the National Guard? The National Guard has traditionally been under the control of the states. Section 1076 of the 2007 Defense Authorization Act change that, concerning many.

When Washington Representative Larry Seaquist learned of a provision included in the National Defense Authorization Act of 2007 enhancing the president's authority to command the National Guard for domestic purposes, he was instantly concerned.

A former warship captain for the U.S. Navy, Seaquist likes the way presidents have been granted authorization to use the Guard in domestic emergencies in the past: through the consent of the governors of the states where the Guard resides.

"Fundamentally, this is both a states' rights and constitutional question that is steeped in our nation's history," says Seaquist. General George Washington commanded two kinds of forces during the Revolutionary War. "One was the Continental Army supplied to him by the Continental Congress and the other was made up of the state militias furnished by the colonies. That's why the framers made a point of acknowledging in the constitution that there is both a federal military and a state militia," Seaquist says. "They knew from the experience of that war that there is a difference between those two forces and they wanted to make certain that the state militias would remain under the independent control of the governors of our states."

But the provision in the defense authorization legislation, known as section 1076, expanding the president's use of the Guard, appeared to run so contrary to that tradition that Seaquist felt compelled to take action. In February, he introduced a resolution in the Washington House calling for the de-federalization of the Washington Air and Army National Guard. The resolution additionally stated that the responsiveness of the Guard in emergencies depends on its existence as a state entity and that federalization would "undermine emergency effectiveness in the state."

"I just thought that, from the state level, we needed to make our voices heard," says Seaquist of his resolution.

In Hawaii, Representative K. Mark Takai, a captain in the Army National Guard, was similarly upset, and supported a resolution condemning the defense authorization act that ultimately failed to win final passage.

"Our governors are the commanders-in-chief of our Guard units throughout the nation, except when called to active duty due to wartime missions," Takai would later explain. "The president should not be able to reach in and grab our state militias without the approval of our governors."

Section 1076, which interestingly united far left and far right bloggers concerned about the possible big government reach of the provision, has had few public defenders. But military expert David Segal believes the intent of the provision was a result of the command difficulties stemming from Hurricane Katrina.

"Because such a significant segment of the Louisiana National Guard was in Iraq, along with a large amount of their equipment, Guard troops had to be called in from other states. The governor of Louisiana had to make a call to the governor of, say, Wyoming, asking to basically borrow that state's troops," says Segal, who is the director of the Center for Research on Military Organization at the University of Maryland.

"By giving the president this expanded authority," Segal says, "he himself could send the Guard from anywhere to the place where the disaster is, without the states having to go through the formalities themselves. In theory, this could be more efficient."

Congress this spring heard from a wide variety of state military and political groups expressing opposition to the section 1076 provision, which was signed into law by the president as part of the larger Defense Authorization Act last October. The House has already passed legislation to repeal the provision and it it under discussion in the Senate as members debate the 2008 Defense Authorization Act.


For many Guard experts and state lawmakers across the country, the move to expand the president's authority over the Guard represents only the latest struggle in an often times exceedingly complex marriage between Washington, D.C., and the states regarding both the use and control of the Guard.

"People very often perceive an ambiguity when it comes to the big question of who ultimately controls the Guard--the federal government or the states," says Segal. "And for good reason, because depending on the crisis or the specific need that the Guard is responding to, the commander really can be either the federal government or the states."

That ambiguity has sometimes led to epic struggles between the states and the federal government. In the 1980s, the governors of several states attempted to stop their National Guard from participating in Central American training regiments scheduled through the Department of the Army.

"These were widely publicized battles that appeared to suggest that the question was a close one," says Samuel Newland, a professor of military education at the U.S. Army War College.

"But in every case, the courts ruled decisively that the governors were in error," Newland says. "It was clear that the federal government, by constitutional provision, has the right to send the National Guard anywhere because the militia-guard was established for the nation's defense. It was not seen as a states' rights question."

Similarly, some governors and lawmakers today have wondered about the extensive use of National Guard units overseas, suggesting that protracted stays on foreign soil might mean a change in the definition of what the Guard is supposed to be.

"Increasingly we are getting into uncharted waters here," says Iowa Representative Steve Warnstadt, a member of his state's National Guard for the last 14 years. "The Guard is a force that by all rights is supposed to be used on a recurring basis, and the various laws and procedures and protections that should reflect this changed status, on both the federal and state level, are not there.

"We did not previously mobilize up to 1,000 people from any given part of the state for a year and then come back two or three years later and mobilize them again," says Warnstadt. "This is all new stuff, an entirely new way of looking at the Guard that state legislatures may have to eventually address."


Other lawmakers worry about the loss of manpower diverted by missions in Iraq and Afghanistan and whether or not a reduced state Guard might find it more difficult to respond to disasters at home.

"I do have concerns about the manpower levels," says North Carolina Representative Grief Martin, who currently serves in the U.S. Army Reserves and notes that the largest Guard unit in his state has been deployed in Iraq for more than a year.

And although most states have agreements with their neighboring states to share Guard members when needed, "that is not the same thing as having the troops that live and train in the community responding to a disaster area," says Martin. "The North Carolina National Guard knows the terrain and the people in their own state and they are better able to respond in an emergency than the Guard from Virginia or South Carolina."

Martin says that the bulk of the North Carolina Guard is home right now, but "much of our equipment has yet to make it back, things like Humvees and aviation units like Blackhawk helicopters, all of which could be crucial losses for us in a serious disaster here."

When a lethal tornado swept through parts of Kansas in May, nearly completely destroying the small town of Greensburg, Governor Kathleen Sebelius said that because of commitments overseas, the National Guard responders in her state didn't have the "equipment they need to come in, and it just makes it that much slower."

According to Major General Tod Bunting, the state's adjutant general, the 660 Humvees and more than 30 large trucks usually on hand for Guard use in Kansas had been reduced to roughly 350 Humvees and 15 large trucks because of overseas use.

And the problem is national, according to Defense Secretary Robert M. Gates, who told Congress in May that Guard equipment levels were at their lowest point since the attacks of Sept. 11. "There's no question that there's been a drawdown of equipment in the National Guard," said Gates. He reported that Guard units overall had only 56 percent of their required equipment in the states, down from 75 percent before Sept. 11.

"Clearly we need to follow through with this program to rebuild the stocks of equipment that are available to the National Guard," Gates said.

Such shortages, says Segal, are a direct result of a change in the role of the National Guard itself. "Historically, we have used the Guard as part of our mobilization base and we called the Guard up both in World Wars I and II," he says. "But during those same wars we also instituted conscription so that the Guardsmen were not the only citizen soldiers going overseas. In effect, they primarily served as a strategic reserve. Now they have been essentially converted by this administration into an operational reserve," he says. "It's a phenomenal difference."

"What all of this means is that we are now fighting the war in Iraq on the backs of the Guard and Reserves," says Martin, "which is not what they are designed to do."


But states that are unhappy with the way in which the federal government uses their Guard should not lose sight of the positive aspects of the compact, says Virginia Delegate Terrie Suit, who has successfully sponsored legislation allowing in-state tuition for Guard members. "People sometimes forget that the relationship the states have with the reds when it comes to Guard matters is not just an official one, but also a financial one."

"Our Guard members benefit extraordinarily from the federal support we get and from being able to do joint training with active duty troops and getting equipment that are economies of scale," says Suit. "And that means that the feds have a right to tap in and access the capabilities of the Guard in our state or any other state whenever they need to.

"We have a say as to what the Guards' role and activities should be within the states," Suit says. "But at the moment, when the federal government asks the Guard to mobilize and deploy elsewhere, they fall under federal law and shift over to a different section of the federal code. And in those cases we no longer have that same authority over them."

Kansas Representative Melvin Neufeld, who has strongly supported benefit packages for the Kansas Guard, puts it another way: "There may be complaints about the way the president has used the National Guard, but no state could go it alone without help from Washington, mainly because they couldn't afford to."

Neufeld says states should do all they can to support recruitment and retention efforts in order to have enough Guard members to satisfy the military needs of the country as well as any disasters or emergencies back home.

"And our legislatures can do that the best by making sure that the Guard has all of the benefits they need," says Neufeld.

Since 9/11, notes Segal, a growing number of legislatures have passed a wide variety of benefit packages for Guard members within their states, usually beginning with tuition reimbursements. "Particularly in the current environment where the federal government has not been doing such a great job looking after returning veterans and where those veterans served in the National Guard, the states have very much been taking the initiative, saying, 'These are our sons and daughters and we are going to look after them.'"


This spring in Wisconsin, members of the Legislature's Joint Committee on Finance approved a comprehensive package aimed at veterans of the Guard and other branches of the military. If it passes, it will provide money for a post-traumatic stress disorder assistance program, create a voluntary informational system for all veterans seeking medical help for combat-related illnesses and increase to $85 million the amount of money available for funding a veterans' home loan program.

"We tried to do everything we could think of to make life better for not just our Guard members but all military members," says Representative Scott Suder, who served in Operation Iraqi Freedom and is currently a member of the Air National Guard.

"The centerpiece of our efforts here has been the continuation of a program called 'Mission Welcome Home,' which helps those who have served, as well as their families, gain access to both state and federal veterans' benefits programs," Suder says.

"So many Guard members and other veterans really don't know about all of the programs that are available to them," adds Suder. "So this is essentially a one-stop shop where we make sure that they know what is out there. We go directly to them and tell them."

In Iowa, lawmakers have passed a tuition waiver program for returning veterans as well as a homeowner's assistance program that gives them a down payment on a house. But Warnstadt would like to see more: "I think the next step we should think about is in the area of family support, making sure that there are family support networks and counseling available on a continuous basis. And this should not be true for just the time that any member of a family is mobilized, but after the mobilization as well."

In North Carolina, Martin noticed that when state employees where called up for National Guard service, they stopped accuring hours for state benefits. "That means people end up being punished for serving," says Martin. "It is not something that affects a lot of people, but we are working on laws that will change that."

Seaquist says there are "so many more things that we can do." He predicts that as the role of the Guard continues to expand, so will the role of state legislatures "in doing whatever we can to make life easier for them."


The Emergency Management Assistance Compact (EMAC) helps states deal with natural disasters by making assistance and resources available from other states to handle emergency situations, even when a state is not eligible for federal disaster assistance. The state-to-state compact grew out of rebuilding efforts after Hurricane Andrew hit Florida in 1992. Officially ratified by Congress in 1996, EMAC is administered by the National Emergency Management Association, independent of the federal government. In response to Hurricanes Katrina and Rita, more than 66,000 people and $830 million in equipment and other resources were sent to the Gulf Coast.

All 50 states and the District of Columbia have passed enabling legislation, which becomes the binding legal contract, addressing issues such as reimbursement and liability. To receive assistance, a governor must declare a state of emergency and notify the EMAC National Coordinating Group.

A state can deploy any resources--law enforcement, firefighting, public health, transportation and human services--it is willing to send to another state. Through EMAC, more than 46,000 National Guard troops were sent to help after Hurricane Katrina. Sending resources through the compact does not decrease federal aid to the affected state.

--Heather Morton, NCSL


















Garry Boulard. a frequent contributor to State Legislatures magazine, is a free-lance writer in Albuquerque, N.M.
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Title Annotation:National Defense Authorization Act of 2007
Author:Boulard, Garry
Publication:State Legislatures
Article Type:Cover story
Geographic Code:1USA
Date:Sep 1, 2007
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