SENATE CONCURRENT RESOLUTION NO. 91
(By Senators Hunter, Unger, White and Foster)
Urging the return of West Virginia National Guard military forces
from Iraq and the federal deployment of the National Guard.
Whereas, The men and women of the West Virginia National
Guard, under the able leadership of Major General Allen E. Tackett
have served courageously and faithfully in Afghanistan and Iraq for
the past five years and deserve the respect and admiration of all
West Virginians; and
Whereas, Under Article I, Section 8, Clause 15 of the United
States Constitution, Congress may call forth the militia to execute
the laws of the union, suppress insurrections and repel invasions.
Since 1933, federal law has provided that persons enlisting in a
State National Guard unit simultaneously enlist in the National
Guard of the United States, a part of the United States Army. The
enlistees retain their status as state guard members unless and
until ordered to active federal duty and then revert to state
status upon being relieved from federal service. In 1986, Congress
passed and the President signed the "Montgomery Amendment", which
provides that a Governor cannot withhold consent with regard to
active duty outside the United States because of any objection to
the location, purpose, type or schedule of such duty; and
Whereas, Under the U. S. Constitution, each state's national unit is controlled by the Governor, but can be called up for
federal duty by the President, provided that the President is
acting pursuant to the Constitution and laws of the United States.
In October 2002, the United States Congress authorized military
force under the Authorization for Use of Military Force Against
Iraq, Public Law No. 107-243 (AUMF), a law enacted in part that the
President is authorized to use the armed forces of the United
States as he determines to be necessary and appropriate in order
to: (a) Defend the national security of the United States against
the continuing threat posed by Iraq; and (b) enforce all relevant
United Nations Security Council Resolutions regarding Iraq. The
AUMF contained neither a termination date nor a process or
procedure to determine when the authorization should terminate.
United States forces, including members of the West Virginia
National Guard and guard members from other states, have long since
addressed the purposes recited under the AUMF, and it is time for
the Iraq National Guard to assume responsibility for the security
and protection of their country; and
Whereas, The President may not maintain United States forces,
and in particular members of the West Virginia National Guard, in
Iraq other than for the purposes set forth by Congress in the AUMF.
Without a specific date for withdrawal of United States forces from
Iraq in the AUMF or a method or formula for determining the time
for withdrawal, and in the absence of congressional legislation curing these omissions, the President is required to order the
withdrawal of troops within a reasonable time and in a reasonable
manner. The President has taken no such action, other than the
AUMF, there is no authority under the Constitution or the laws of
the United States for the continued presence of West Virginia
National Guard members in Iraq. The maintenance of West Virginia
National Guard members in Iraq beyond the time and scope set forth
in the AUMF has resulted in significant harm to guard members and
their families, including death and injury, loss of time together
and financial hardship; and
Whereas, West Virginians are ever mindful of natural and man-
made disasters which threaten lives and property such as the
Buffalo Creek disaster of February 26, 1972, and the disastrous
flood of November 1985 and the importance of having West Virginia's
National Guard units prepared and ready for deployment to provide
aid in any imminent emergency; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby urges the return of West Virginia
National Guard military forces from Iraq and the federal deployment
of the National Guard; and, be it
Further Resolved, That Congress is urged to revisit the 1986
Montgomery Amendment and adopt legislation that restores the powers
of the Governors of the several states to withhold consent to
federalization of their National Guards, except where a declaration of war has been adopted or where the United States faces attack or
invasion and the President has invoked powers authorized by an Act
of Congress to address those circumstances; and, be it
Further Resolved, That the Clerk of the Senate is hereby
directed to forward a copy of this resolution to the members of the
West Virginia Delegation to Congress.