State Efforts to Obstruct the War on Terror Aren't Just Bad Policy -- They're Unconstitutional
Late last week, the Foundation for the Defense of Democracies' David B. Rivkin, Jr. and the Heritage Foundation's Charles D. Stimson published an op-ed in the Washington Post calling attention to a new law in Virginia that "forbids state employees, including police and members of the National Guard, from participating in the investigation, surveillance, detention or arrest of any suspected member of al-Qaeda or its affiliates, if that suspect is a U.S. citizen. "
It is disappointing that governors, particularly Republicans, have joined forces with the ACLU in a campaign against the war on terror. It is similar to the foolish and ineffective efforts of cities to oppose the Patriot Act in the years after its passage. But rather than repeat the excellent policy arguments against the actions of Virginia and other states, I want to point out that the law is also unconstitutional.
The Constitution gives the federal government exclusive control over the nation's military; when enlistees join the state National Guard, they simultaneously join the federal National Guard. When the state guard is called into federal service, they become part of the federal army and are no longer in state service. The Constitution allows Congress to decide how to structure that military, and it gives the President as Commander-in-Chief the authority over their deployment. State governors have no right to decide how the National Guard is to be deployed when in federal service.
This is not just idle speculation about the Constitution's text. In 1990, the Supreme Court decided this issue unanimously in Perpich v. Department of Defense, 496 U.S. 334. In the 1980s, several state governors objected to National Guard training missions in Central America. The Court, however, ruled that state governors could not oppose the federal government's decision on how to train and deploy the National Guard when in federal service. That principle indicates that these new wave of laws, also taken to oppose federal policies, violate the Constitution. As such, we should expect them to meet the fate they ultimately deserve.