HOUSE CONCURRENT RESOLUTION NO. 85
(By Delegates Brown, Azinger, Campbell, Crosier, Eldridge, Ellis,
Fleischauer, Guthrie, Hatfield, Hrutkay, Kessler, Kominar, Long,
Mahan, Miley, Moore, Morgan, Paxton, Perdue, Perry, Pino, M.
Poling, Rodighiero, Shaver, Stephens, Talbott, Wells, White,
Williams)
Urging the withdrawal of West Virginia National Guard military
forces from Iraq and the federal deployment of the National
Guard.
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 U. S. 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 U. S. 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 or
she 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.
U. S. 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 U. S. 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 U. S. 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 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 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 House of Delegates forward a certified copy of this resolution to the members of the
West Virginia Delegation to Congress.