The Defend the Guard Act (House Bill 2732) is a simple piece of legislation that has the potential to upend the established order in American foreign policy and return us to constitutional norms.  It would prohibit members of the West Virginia National Guard from being deployed to foreign conflict without an official declaration of War. Article 1, Section 8 of the US Constitution grants Congress the exclusive power to declare war.  Congress has not declared war since the Second World War – over 75 years ago.  Nonetheless, the US military has been engaged in dozens of conflicts around the world since the last official declaration of war.  Members of the National Guard have regularly been deployed to serve in these unofficial wars.
The proposed law is based on sound Constitutional principles; however, it flies in the face of a history that has seen the executive usurp and denigrate the power to declare war.  In one short paragraph, West Virginia would reassert its authority over the Guard and send a clear message to the President and all future Presidents that they need to respect the Constitution’s clear language vesting Congress with the exclusive power to declare war.
The ACLU fully supports restoring war powers to the legislative branch.  We believe the state has an absolute right to refuse to send its Guard to a foreign conflict without a formal declaration of war.  The Defend the Guard Act is a sound piece of legislation based on core constitutional principles.
The bill faces an uncertain future.  It was introduced by Delegate Pat McGeehan, who was able to secure the votes to pass it through the Committee on Veterans Affairs and Homeland Security, which he chairs.  From there, the bill appeared to stall. On the floor, a series of procedural motions eventually forced the House to consider the bill. It faces a tough vote there, and then must repeat the process in the Senate.  Even if the bill passes both chambers, it will likely face a veto and legal challenges. Regardless of the ultimate outcome, it sends an important message – that the President and Congress must follow the rules of the Constitution.