A candidate for governor in California has recently prompted discussion that a governor might have the authority to withdraw his state’s National Guard troops from serving in Iraq. The sooner this kind of talk is discredited the better.
It’s wrong as a matter of law, and it’s wrong as a matter of policy.
First of all, let us deal with the legality of a state governor attempting to override the president’s orders when the National Guard troops have been called up for federal service. The United States Supreme Court settled this question definitively in 1990, when the then-governor of Minnesota complained that Guard troops from that state had been sent to Central America. In that case — Perpich v. Department of Defense — the Supreme Court ruled unanimously that the governor of Minnesota had no such authority over the Guard troops, and recognized “the supremacy of federal power in the area of military affairs.” Simply put: Governors can’t do what is being suggested, and the nation’s highest Court has already said so.
A reference to our nation’s not-too-distant civil-rights past shows how wrong this proposal is, on policy grounds as well. In the late 1950s and early 1960s, southern governors disagreed with President Kennedy and President Eisenhower over desegregation. Those governors ordered their states’ National Guards to prevent African-Americans from going to school. However, both presidents had federalized the National Guard in those states, thereby serving as commanders-in-chief over the National Guard, and so their orders prevailed. The schools were desegregated.
If state governors were free to withdraw their National Guard troops from the command of the president simply because they disagreed with a federal policy, those desegregation orders would not have been carried out. Imagine the conflict if U.S. Army units were arrayed to support school desegregation orders, and Alabama or Mississippi National Guard units were arrayed to prevent them.
The fundamental point is this: Federal policy, whether good or bad, needs to be fought out in the federal sphere. The democratic process rightly allows for federal policy to change, as it did in Vietnam. Presidents change, our representatives in Congress change, and policies once supported sometimes lose support. In other cases, Congress has used its power to cut off funding for activities it once permitted. That is where the issue of the United States’ role in Iraq is lodged; and this November’s congressional elections will show the will of our people on that question.
Governors certainly can have personal views on a myriad of public issues. Governors can use their position to influence a national debate. They may wish to speak out about Hugo Chavez’s management of Venezuela, or Hezbollah’s role in Lebanon. But governors and candidates for governor should not attempt to convey that they can do anything officially in their foreign policy regarding Chavez or Hezbollah. To suggest they can is disingenuous.
Support the war in Iraq or not — our country simply cannot work if state governors are free to withdraw their states from implementing national policy. In a very real way, that issue was settled at Appomattox courthouse 141 years ago.
— Tom Campbell is the author of a constitutional-law text, Separation of Powers in Practice, published by Stanford University in 2004, and dean of the Haas School of Business at UC Berkeley. For 19 years, he was a professor of Law at Stanford. He is also a former member of the Judiciary Committee of the U.S. House of Representatives, and of the Judiciary Committee of the California senate. These views are his own.