The Biden administration has compounded the illegal immigration problem by diverting National Guard personnel into foreign duty for which they were not authorized.
In doing so, the administration has threatened traditional state control over the National Guard and compromised its ability to respond to local emergencies and protect the border.
There is a remedy: States like Colorado can adopt the Defend the Guard Act, which prohibits federal deployment of the National Guard to foreign conflicts unless Congress formally declares war—as the Constitution requires.
Under the Constitution, the National Guard—a component of the militia—is a state rather than a federal military force. The Constitution limits federal control to three narrowly-defined situations: “to execute the Laws of the Union, suppress Insurrections, and repel Invasions” (Article I, Section 8, Clause 15). The Constitution mandates state control of the militia outside of these situations. Thus, each governor retains authority over his or her state’s National Guard until Congress has called the militia into “actual service,” in accordance with the Constitution.
Many people—including, apparently, the Biden administration—have lost sight of the fact that, while the Constitution grants the federal government the principal authority to wage war, it also reserves the right of self-defense to the states. You can find a summary of state war powers in an article by Robert G. Natelson and Andrew T. Hyman entitled “The Constitution, Invasion, Immigration, and the War Powers of the States.” States exercise their war powers through the militia, including its National Guard component.
When the federal government diverts the National Guard for purposes contrary to state interests, it undermines the Constitution’s careful balance between the central government and the states.
The Constitution reserves control over the militia to the states to check centralized power. As James Madison said, “Can we believe that a government of a federal nature, consisting of many coëqual sovereignties, and particularly having one branch chosen from the people, would drag the militia unnecessarily to an immense distance? . . . such abuse could only answer the purpose of exciting the universal indignation of the people, and drawing on themselves the general hatred and detestation of their country.”
Despite Madison’s prediction, federal officials have repeatedly federalized National Guard personnel and diverted it away from states, against the interests of states, and in violation of the Constitution.
For example, even though Congress has not formally declared war since World War II, the federal government has used the National Guard as a primary fighting force in multiple foreign wars. Guardsmen have comprised 45% of those deployed overseas and nearly 20% of the casualties.
As a result, Guardsmen sometimes have not been available to serve the people of their own states. When Hurricane Katrina hit New Orleans in 2005, 3,200 Louisiana Guardsmen were overseas in Iraq. When hurricanes hit Florida in 2021, 165 members of the Florida National Guard were training Ukrainians. When Arizona National Guardsmen could have been assisting at the US-Mexico border, they were deployed on the Jordan-Syria border, where they were the target of a drone strike that killed three US troops.
The Biden administration also has deployed National Guard personnel to conflicts in Syria, Iraq, and Somalia, none of which Congress has authorized by a formal declaration of war.
Furthermore, the Biden administration threatened to federalize the Texas National Guard to prevent Texas from erecting a barrier along its southern border. Two months later, it asked Congress to transfer units from the Air National Guard into the U.S. Space Force.
In response to the latest action by the Biden administration, 48 state governors signed a letter opposing the proposal: “Governors,” they wrote, “must maintain full authority as commanders in chief of these assets to effectively protect operational readiness and America’s communities.” 54 Adjudant Generals and 85 members of Congress also opposed the proposal.
The Defend the Guard Act would be another step in protecting state and local interests against federal overreach. If it had been law in Louisiana, Florida, Arizona, and Texas during their emergencies, National Guard personnel would have been protected from endless foreign wars and available to serve their friends and neighbors instead.
Because the federal government refuses to obey the Constitution and protect the southern border, Colorado should pass the Defend the Guard Act.
Liam McCollum is second-year law student at the University of Montana and a legal intern at the Independence Institute, a free market think tank in Denver.
