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.
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Mar '11
Re: State Efforts to Obstruct the War on Terror Aren't Just Bad Policy -- They're Unconstitutional
The 2012 National Defense Authorization Act is more than a little disturbing in its' rather cavalier attitude to civil liberties, read one way it takes probable cause and completely discards it. Where is the check and balance?
Is this Virgina law unconstitutional? Perhaps. But giving the President the authority to indefinitely detain any US citizen on US soil based on whatever strikes his fancy is unacceptable, there is no possible justification for granting the office such broad power.
Edited on April 30, 2012 at 9:11pmDec '10
Re: State Efforts to Obstruct the War on Terror Aren't Just Bad Policy -- They're Unconstitutional
Is there, Prof. Yoo, any basis by which a governor can Constitutionally deny the Feds the use of his or her Guard? If so, what are they? If not, in what sense can they even be considered state entities, then?
Sep '10
Re: State Efforts to Obstruct the War on Terror Aren't Just Bad Policy -- They're Unconstitutional
I agree that this is an unconstitutional act. However the NDAA is grossly unconstitutional and further represents the eroding if not serverance of the contractual agreement that was made by the states and the people called the constitution. Morally this is the right thing to do. We are ruled by men and not law. Part of this was done by Lincoln & Jackson. But FDR, Wilson & LBJ put this on the fast lane to Obama.
Oct '10
Re: State Efforts to Obstruct the War on Terror Aren't Just Bad Policy -- They're Unconstitutional
If you recall, Professor, the War on Terror is over. We were recently informed of this fact by the administration. How can these states be on the wrong side of a war that no longer exists, according to the Commander in Chief? The NDAA, regardless of the promises of this president, is designed, specifically, to allow the federal government to disappear, torture, or kill American citizens. Why else did Obama expressly ask for the ability to detain, hold, and execute Americans before he would sign the bill? I say bravo to the several States!
May '10
Re: State Efforts to Obstruct the War on Terror Aren't Just Bad Policy -- They're Unconstitutional
There are so many ways in which the Federal government unconstitutionally violates the prerogatives of the states. Couldn't they spare a bit of time and attention on those issues?
Jun '10
Re: State Efforts to Obstruct the War on Terror Aren't Just Bad Policy -- They're Unconstitutional
Small revolutions are happening in response to the federal government's continued desecration of the constitution. The government says whatever it does is constitutional because they say it's constitutional, and everyone who opposes them is a supporter of terrorism. More and more citizens are refusing to go along with the ever increasing abuse of power the federal government has claimed for itself.
About the law...are the feds right? Does anything they say go? Could be they are technically right. That doesn't mean the people will accept it.
Like I said, I believe we are going to see an ever increasing number of small revolutions against the fed.