That title does sound like a mouthful doesn't it? However, it's not totally accurate. Yes, I believe the DoD has usurped some Constitutional powers of the Congress, but they were aided and abetted by the Congress and by the President.
How, you might ask? Well let's do a quick review. The United States Constitution, Article I, Section 8 gives specific powers to the United States Congress. Among these, for this discussion, are four very important powers:
A) To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
B) To provide and maintain a Navy;
C) To make Rules for the Government and Regulation of the land and naval Forces;
D) To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
Clauses A) and B) normally take place every year in the annual Defense Appropriations Bill. Sometimes the Bill includes, as per C) above, changes to existing Federal Statute. Sometimes Clause C) items are covered under separate legislation. The way this specific bill comes about, generally speaking, is in a "meeting of the minds" between the Joint Chiefs of Staff under the auspices of the Chairman, the service secretaries under the auspices of the Secretary of Defense, and the House and Senate Armed Forces Committees under the auspices of their Chairmen. Once they've pretty much agreed on what should go in the Bill, than it follows the path of any other piece of legislation - passage by both Houses of Congress, Signed by the President and codified into law. Nothing new here, either.
The National Defense Act of 1916 codified a concept concerning the Militia. This codification, virtually unchanged, is now Title 10, United States Code, Section 311 and it says:
§ 311. Militia: composition and classes
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
The only changes I've been able to find since than added the last 19 words of sub paragraph a), replaced the word "officers" with the word "members", and added female. So basically, the Militia, as expounded in Article I, Section 8 of the Constitution includes the National Guard. Let's readdress that clause. Who has the authority to Federalize the National Guard of the United States? The President, right? Wrong! Congress is the group with the power "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;" Once Federalized, of course, the President is their Commander-in-Chief, and may utilize them like any other segment of the US Armed Forces. Wrong again! The President is the CinC, yes. But reread the clause "...suppress Insurrections and repel Invasions:" That doesn't mean he can send them to Iraq, Afghanistan, or anywhere else outside of the United States. Have Presidents done that legally? In my opinion, not since Woodrow Wilson. In WWI, Guardsmen who volunteered, draftees, and other "citizen-soldiers" were placed in the National Army, this was not the same as the United States Army, who were the regulars. Previous Presidents had placed volunteer troops from the Guard, the Militia and straight from civilian life into the United States Volunteers. I'll elaborate on those two organizations at a later date.
OK, now we know that from 3 Jun 1916 to date the militia has been divided into two segments, the National Guard and the Unorganized Militia. Here's where the usurpation comes into play.
After consultation with Secretary of Defense William Perry and Chairman of the Joint Chiefs of Staff General John M.D. Shalikashvili, Senator Sam Nunn introduced the National Defense Authorization Act for Fiscal Year 1995 on 13 June 1994. This bill, with some amendments, was passed by both Houses of the Congress and upon President Bill Clinton's signature became Public Law 103-337. In this law was a segment totally unrelated to finance, tucked away as Section 1661, Laws Relating to Organization and Administration of Reserve Components. This Section became part of Title 10 beginning with 10 USC § 10001. I'm not going to discuss every one of them, but I am going to point out a few things.
§ 10101. Reserve components named
The reserve components of the armed forces are:
(1) The Army National Guard of the United States.
(2) The Army Reserve.
(3) The Navy Reserve.
(4) The Marine Corps Reserve.
(5) The Air National Guard of the United States.
(6) The Air Force Reserve.
(7) The Coast Guard Reserve.
This little change partially moved the Guard under the purview of the Secretary of Defense, whether Congress had Federalized them or not.
§ 10102. Purpose of reserve components
The purpose of each reserve component is to provide trained units and qualified persons available for active duty in the armed forces, in time of war or national emergency, and at such other times as the national security may require, to fill the needs of the armed forces whenever more units and persons are needed than are in the regular components.
This moved them just a little more into SecDef's hip pocket.
§ 10103. Basic policy for order into Federal service
Whenever Congress determines that more units and organizations are needed for the national security than are in the regular components of the ground and air forces, the Army National Guard of the United States and the Air National Guard of the United States, or such parts of them as are needed, together with units of other reserve components necessary for a balanced force, shall be ordered to active duty and retained as long as so needed.
This is in line with the Constitution, but the two previous sections ands a couple of later sections make 10103 moot. Here comes the BIGGIE.
§ 10105. Army National Guard of the United States: composition
The Army National Guard of the United States is the reserve component of the Army that consists of—
(1) federally recognized units and organizations of the Army National Guard; and
(2) members of the Army National Guard who are also Reserves of the Army.
§ 10111. Air National Guard of the United States: composition
The Air National Guard of the United States is the reserve component of the Air Force that consists of—
(1) federally recognized units and organizations of the Air National Guard; and
(2) members of the Air National Guard who are also Reserves of the Air Force.
The National Guard may now be Federalized by the Secretary of Defense and deployed anywhere he wants, as members of the Reserves. That ladies and gentleman is how the Department of Defense and the US Congress has bypassed, and ignored or usurped, the United States Constitution.
To strengthen the argument, tale a look at DD Form 4/3 of Oct 2007. That's the current enlistment contract used by the Department of Defense. I've included a part of it below.
15. IN THE ARMED FORCES EXCEPT THE NATIONAL GUARD (ARMY OR AIR):
I, ____________ , do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same;
and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.
I don't have a problem with that oath - I've taken it often enough!
16. IN THE NATIONAL GUARD (ARMY OR AIR):
I, ______________, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the State of against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the Governor of ______________ and the orders of the officers appointed over me according to law and regulations. So help me God.
I just have a little problem with this one. The Guard doesn't come under the UCMJ? If they do, why was it left out of their enlistment oath? Does that mean that every Guardsman receiving NJP or Courts-Martial punishment can appeal on the grounds that he didn't take an oath to follow the UCMJ? Could be an interesting development!
17. IN THE NATIONAL GUARD (ARMY OR AIR):
I do hereby acknowledge to have voluntarily enlisted/reenlisted this _____ day of _______________ in the __________National Guard and as a Reserve of the United States (list branch of service) with membership in the ________National Guard of the United States for a period of ____years, ____ months, under the conditions prescribed by law, unless sooner discharged by proper authority.
I believe that completes the usurpation. They have enlisted the men and women into both the Guard and the Reserve. Since it violates the Constitution for anyone but Congress to Federalize the Guard, and the Guard can only be used to put down insurrection and repel invasion, they simply mobilize them as a reserve unit!
Oh, and here's another section that was written just to cover their six:
§ 10213. Reserve components: dual membership prohibited
Except as otherwise provided in this title, no person may be a member of more than one reserve component at the same time.
I also believe that is the primary difference between ordering a Guardsman to duty under Title 10 or under Title 32. Title 10 comes with Federal benefits, including the VA. In many cases Title 32 does not.
God save the Republic.
Gunner Sends
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