Bill Tallen

A few Wyoming legislative sessions ago, a bill was introduced that would have authorized or encouraged or enjoined (I forget which) the governor to refuse (as though he could) the deployment of our National Guard under federal orders to overseas combat operations in the absence of a Congressional declaration of war. It came after 20-plus years of rotating Guard deployments to Afghanistan, Iraq, and to supporting roles elsewhere since the beginning of the “war on terror” in 2001. These in turn were authorized by the National Defense Act of 1916, which changed federal law to allow the activation of all state National Guard forces for essentially unlimited service and overseas deployments. This came in handy a year later, when all 300,000 of them were mobilized and most of them shipped off to France for the last year of World War I. 

This bill went down in flames in its legislative committee hearing for several cogent reasons. First, there’s that little ol’ thang, the Supremacy Clause, which does not allow state law to supersede federal law, so a state Legislature cannot stop federal activation of the National Guard into federal service, declared war or no; its use within the United States is another and more complicated issue, for another time. 

Second, declarations of war are a thing of the past; the last one passed by the U.S. Congress was in 1942, and there have been more than a few overseas conflicts since then. Third, there are many fights in modern and not-so-modern history that have not been fought against nation states, but against insurgencies (from the Philippine revolution against the U.S., 1899-1902, to Vietnam between 1955 to 1975) and, of course, the so-called War on Terror against a broad and often-shifting array of Islamist terror groups and their supporting states beginning in 2001. 

Fourth, the government addressed future war-like events near the end of the Vietnam conflict with the War Powers Resolution (WPR, 1973), which requires the president to obtain from Congress either a declaration of war or an Authorization for the Use of Military Force (AUMF), which until the War on Terror, was always limited in duration. Under the WPR, a president can use military force without prior consultation or authorization by Congress, for a period of 60-90 days, after which operations must cease unless a declaration of war or AUMF, properly drafted and approved by the Congress, authorizes him to continue. An example (among many) of a short-duration military operation without Congressional authority was the bombing of Iranian nuclear facilities in June of this year. It was over in less than 72 hours; all Congress was entitled to, and all it got, was a notification after the fact.

The looming question right now concerns active duty military forces and the Coast Guard operating against drug smuggling organizations in international waters off Central America, recently (and correctly, in my opinion) designated as threats to our national security. There’s a lot of speculation as to whether the next step might be action against Venezuela, which is known to be the coordinator and/or point of origin for much of this traffic. Another factor is the significant sponsorship and support that Venezuela’s socialist regime is receiving from China, Russia and Iran, which in turn invites an invocation of the Monroe Doctrine, whereby the U.S. has unilaterally — if not consistently — asserted the authority to protect all of the Western Hemisphere from meddling or intervention by foreign powers. Love it or hate it, that doctrine has been applied repeatedly for more than 200 years and is being dusted off again by the Trump administration. Where will this lead? Or by time you read this, where will it have already landed us?

The USS Gerald Ford, our newest aircraft carrier, and the escorts of its Carrier Strike Group, were pulled out of the eastern Mediterranean a month ago and are now in the Caribbean, along with an amphibious ready group carrying a couple thousand Marines, and a big slice of land-based air operating off fields in Puerto Rico and elsewhere in the region. The carrier on station in the western Pacific and South China Sea pulled out and headed — somewhere — on short notice a week or so ago. Aircraft carriers are not pulled off those two stations casually; of the 11 we have, there are seldom more than four at sea at any given time, unless there are major operation ongoing or imminent. Yet another carrier, USS Abraham Lincoln, cut short its months-long maintenance cycle and sailed out of San Diego about four days ago. Something’s brewing.

What might that look like? I won’t speculate; but the legal basis for military action is in place, and if it were brief in duration, then the Trump administration could act without tipping its hand by requesting an AUMF first.