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BILL AS INTRODUCED 2007-2008

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H.746

Introduced by Representatives Fisher of Lincoln, Ancel of Calais, Aswad of Burlington, Bray of New Haven, Edwards of Brattleboro, French of Randolph, Hosford of Waitsfield, Jewett of Ripton, Klein of East Montpelier, Marek of Newfane, Martin of Springfield, Masland of Thetford, McCullough of Williston, Milkey of Brattleboro, Minter of Waterbury, Mitchell of Barnard, Mrowicki of Putney, Nuovo of Middlebury, Ojibway of Hartford, Pearson of Burlington, Pellett of Chester, Pillsbury of Brattleboro, Shand of Weathersfield, Sharpe of Bristol, Spengler of Colchester, Weston of Burlington, Zenie of Colchester and Zuckerman of Burlington

Referred to Committee on

Date:

Subject:  National Guard; deployment

Statement of purpose:  This bill addresses limits to the constitutional and statutory authority of the President to federalize and deploy the Vermont national guard in Iraq; declares that the authority for that deployment has terminated; requests that actions be taken to terminate federalization and bring troops back to Vermont as members of the Vermont national guard; and reaffirms that Vermont national guard members be limited to service on behalf of the state of Vermont, unless properly and lawfully called into federal service.

AN ACT RELATING TO THE WITHDRAWAL OF VERMONT NATIONAL GUARD MILITARY FORCES FROM IRAQ AND THE FEDERAL DEPLOYMENT OF THE NATIONAL GUARD

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  STATEMENT OF FINDINGS

     The general assembly finds that:

(1)  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.

(2)  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.

(3)  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.    

(4)  Under the U.S. Constitution, each state's national guard 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.

(5)  The War Powers Act of 1973 (Public Law 93-148) specifically limits the power of the President of the United States to wage war without the approval of Congress.

(6)  In October 2002, the U.S. Congress authorized military force under the Authorization for the Use of Military Force Against Iraq, Public Law No. 107-243 (AUMF), a law enacted in response to a presidential request under the War Powers Act.  The AUMF stated 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.

(7)  The AUMF contained neither a termination date nor a process or procedure to determine when the authorization should terminate.

(8)  U.S. forces, including members of the Vermont national guard and guard members from other states, have long since addressed the purposes recited under the AUMF, and Iraq does not pose a continuing threat to the national security of the United States, nor is there an extant United Nations Security Council Resolution to be implemented.   

(9)  The President may not maintain U.S. forces, and in particular members of the Vermont 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.

(10)  Other than the AUMF, there is no authority under the Constitution or the laws of the United States for the continued presence of Vermont national guard members in Iraq.

(11)  The maintenance of Vermont 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.

(12)  The general assembly finds that Congress should 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.

Sec. 2.  EXPIRATION OF THE 2002 AUTHORIZATION FOR USE

             OF MILITARY FORCE AND WITHDRAWAL OF

             VERMONT NATIONAL GUARD MEMBERS FROM IRAQ

The Authorization for the Use of Military Force of October 16, 2002 having expired, the general assembly declares that the governor, as commander in chief, should take all necessary steps to withdraw all members of the Vermont national guard from Iraq subject only to conditions of time and manner specifically required to assure their safety and well-being during removal operations.


Sec. 3.  20 V.S.A. § 368a is added to read:

§ 368a.  LIMITATION OF VERMONT NATIONAL GUARD SERVICE IN

              WARS NOT STATUTORILY OR CONSTITUTIONALLY

               AUTHORIZED        

The General Assembly reaffirms that the Vermont national guard shall be limited to service on behalf of the state of Vermont, unless called into federal service pursuant to a declaration of war or a duly enacted federal statute authorizing the use of military force.

Sec. 4.  20 V.S.A. § 368b is added to read: 

§ 368b.  AUTHORITY FOR THE VERMONT ATTORNEY

               GENERAL TO DEFEND DECISIONS TO DEPLOY OR

               NOT DEPLOY THE VERMONT NATIONAL GUARD

The attorney general is authorized to appear in any state or federal court with jurisdiction over the deployment of the Vermont national guard to defend any decision of the governor and adjutant general with respect to their decision to deploy or not deploy the guard.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us