HCR 85 Text

HOUSE CONCURRENT RESOLUTION NO. 85
(By Delegates Brown, Azinger, Campbell, Crosier, Eldridge, Ellis, Fleischauer, Guthrie, Hatfield, Hrutkay, Kessler, Kominar, Long, Mahan, Miley, Moore, Morgan, Paxton, Perdue, Perry, Pino, M. Poling, Rodighiero, Shaver, Stephens, Talbott, Wells, White, Williams)

Urging the withdrawal of West Virginia National Guard military forces from Iraq and the federal deployment of the National Guard.

Whereas, 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. 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. 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; and
Whereas, Under the U. S. Constitution, each state's national 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. In October 2002, the U. S. Congress authorized military force under the Authorization for Use of Military Force Against Iraq, Public Law No. 107-243 (AUMF), a law enacted in part that the President is authorized to use the Armed Forces of the United States as he or she 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. The AUMF contained neither a termination date nor a process or procedure to determine when the authorization should terminate. U. S. forces, including members of the West Virginia National Guard and guard members from other states, have long since addressed the purposes recited under the AUMF, and it is time for the Iraq National Guard to assume responsibility for the security and protection of their country; and
Whereas, The President may not maintain U. S. forces, and in particular members of the West Virginia 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, other than the AUMF, there is no authority under the Constitution or the laws of the United States for the continued presence of West Virginia National Guard members in Iraq. The maintenance of West Virginia 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; and
Whereas, West Virginians are ever mindful of natural and man made disasters which threaten lives and property such as the Buffalo Creek disaster of February 26, 1972, and the importance of having West Virginia's National Guard units prepared and ready for deployment to provide aid in any imminent emergency; therefore, be it
Resolved by the Legislature of West Virginia:
That Congress is urged to 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; and, be it
Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this resolution to the members of the West Virginia Delegation to Congress.

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