Bring the Guard Home - Frequently Asked Questions

Assembly Bill 203, introduced in the State Assembly by Representative Spencer Black, requires the Governor to review each National Guard federalization order to determine whether that order is legal and to contest any order lacking a valid congressional authorization.

Assembly Bill 203 would:

  • Honor our commitment as a state to our guard men and women to ensure that they are asked to sacrifice only in the service of the republic and the people, and ensure that their commitment to serve is not abused
  • Restore rule of law and ensure that Wisconsin Guard is only deployed in lawful manner
  • Increase democratic oversight over war-making, addressing the current imbalance of power with too much unchecked power residing in Executive branch

Assembly Bill 203 would not:

  • Revoke the current deployment of Wisconsin’s Guard to Iraq, due to end in early 2010.

Frequently-Asked Questions:

Q: Why is the deployment of National Guard troops to Iraq illegal?

In 2002, the Congress passed an Authorization for Use of Military Force in Iraq (AUMF) based on a limited, two-part mission for our military in Iraq: 1) to eliminate the alleged threat posed by Iraqi WMDs; and 2) to remove Saddam Hussein from power.
The WMD’s did not exist. Saddam Hussein is no longer in power. The mission authorized by Congress is over, and Congress has never voted to reauthorize the mission to Iraq on any other basis. Therefore, the 2002 AUMF -- which is the only legal basis by which the President can demand National Guard troops for Iraq -- has expired. Any continued deployment of Guard units to Iraq is now unlawful.

Q: Can we be sure the Governor will do the right thing and rule that Guard deployments are illegal?
No. AB 203 requires the Governor to conduct a proper legal review, which would require serious consideration of the legal questions raised about deployments of our Wisconsin Guard. When that happens, we’ll be ready with arguments exposing the illegality of Guard deployments to Iraq, arguments that have been developed by Ben Scotch, a former Senior Staff Attorney to the Vermont Supreme Court. And if the Governor fails to conduct a proper review, Wisconsin citizens would be empowered to challenge the Governor's decision in court.

Q: Is this a “States’ Rights” campaign, like when Southern Governors refused to comply with Federal desegregation orders?
Absolutely not. The “Bring the Guard Home” campaign is not attempting to challenge federal authority in an area where the Federal Government has sole authority – as in enforcing a Supreme Court order to desegregate public schools. Responsibility for the National Guard is shared between the states and the Federal government, with the states having control in peacetime, and the Federal government having control in wartime, if there is a valid Federal order activating the Guard for national service. AB 203 merely seeks to give the Governor the authority to ensure that any Federal order transferring Wisconsin’s Guard from state control to federal control is valid, and in compliance with federal law. 

Q: Hasn’t Congress already prohibited states from challenging federal orders for deployment of the Guard?

In 1986, Congress passed the Montgomery Amendment, which denied governors the authority to resist deployments for their National Guard units “on account of location, purpose, type or schedule.” The Montgomery Amendment, later upheld by the Supreme Court in the decision Perpich v. Dept. of Defense (1990), took away Governors’ authority to refuse federal orders for deployment of the Guard on policy grounds (i.e. “I, the governor, disagree with the purpose of this deployment, and so I will refuse to release the Guard for federal service.”)
AB 203 does not challenge overseas deployments of the Guard on policy grounds. No matter how much we may disagree with the Iraq and Afghanistan wars, that is not the basis on which a Governor, under AB 203, would challenge Guard deployments to those countries. Rather, the Governor would challenge the legality of the deployment – because, for example, the Congressional authorization that allows the deployment has expired. Thus, AB 203 is not in conflict with the Montgomery Amendment or the Supreme Court’s ruling in Perpich.

Q: What about Afghanistan?
Questions have been raised about the legality of the 2001 Congressional Authorization for Use of Military Force (AUMF) that sent U.S. troops to Afghanistan. Specifically, HR 4, a bill introduced in the Oregon state legislature (one of more than 20 states active in the “Bring the Guard Home” campaign) argues that the 2001 AUMF, because it is so broadly written, amounts to a permanent delegation of Congressional authority to the President, with neither standards to rein in his or her actions, nor a clear means of regaining control in Congress. The 2001 AUMF does not even mention Afghanistan, and could easily be used to "authorize" military action against any country where Al Qaeda is suspected of operating, including Yemen and Somalia. This argument could form the basis for a challenge by any Governor to deployments to Afghanistan. Such a challenge would have the beneficial effect of sending a warning signal to Congress about any future authorizations for use of military force (AUMF’s), that they not be so broadly written as to abdicate Congress’ constitutional duties. This would help to restore a genuine balance of powers between Congress and the President on the issue of war-making, rather than the almost completely unchecked Presidential power we see today.