The recent tornado disaster in Kansas and the federal government's response to hurricane Katrina in 1995 highlight a problem for the states in dealing with natural disasters in this time of war--National Guard units are either deployed overseas or left with inadequate equipment to deal with natural and unnatural disasters due to the war in Iraq. In the event of hurricanes or a terrorist attack we might have once expected the National Guard to be called up to help in controlling the extent of the disaster. Now, National Guard units are ill-equipped to deal with disasters as we saw in New Orleans and as we are about to see in Kansas.
It didn't always used to be this way. At one time state governors held discretionary power over when and where their state National Guard units could be deployed. Then in 1986 the Montgomery Amendment was passed, and state governors were stripped of their powers to control the state Guard units.
It's time to repeal the Montgomery Amendment.
According to the Law Encyclopedia:
The states generally have maintained control over the militia during times of peace but not during war or national emergency. However, after two state governors refused to consent to federal training missions abroad for their Guard units, the gubernatorial consent requirement was partially repealed in 1986 by the Montgomery Amendment, which provides that a governor cannot withhold consent for reservists to be on active duty outside the United States because of any objection to the location, purpose, type, or schedule of such duty. The Supreme Court affirmed the constitutionality of the Montgomery Amendment in Perpich v. Department of Defense, 496 U.S. 334, 110 S. Ct. 2418, 110 L. Ed. 2d 312 (1990). According to the Court, the Militia Clause of the Constitution granted independent rights to both the states and the federal government to train the militia. Congress is free to train the militia as it sees fit, provided it does not prevent the states from also conducting training.
The Montgomery Amendment, and the subsequent Supreme Court ruling, are what has allowed the National Guard to be deployed overseas, into a war zone, leaving the homeland insecure. Treating the National Guard as just another part of the Army leaves the nation vulnerable to disasters and terrorism. Prior to this orders for a call-up of National Guard units were subject to approval from the state governors (again, same source):
The authority to order the Guard to federal duty was limited to periods of national emergency until Congress passed the Armed Forces Reserve Act of 1952 (66 Stat. 481), which authorized orders "to active duty or active duty for training" without any emergency requirement but provided that such orders could not be issued without the consent of the governor of the state concerned.
Congress should consider a law repealing the Montgomery Amendment and restoring control over National Guard deployments to state governors. If a governor does not wish to allow for a deployment of Guard units overseas--either in times of peace or war--the governor should have the power to block said deployment. And a law repealing the Montgomery Amendment should also place a timetable on returning deployed Guard units to the United States, say within ninety days of passage.
For those opposed to the war such a law would have the effect of depriving Bush of manpower to fuel his delusions. For those on the right who are in favor of states' rights, a law repealing the Montgomery Amendment would have the appeal of restoring to the states a power that the federal government took away in the 1980s. Repeal could also be sold as a way of protecting the United States in the "war on terror"--by making sure that the National Guard is at home instead of deployed overseas we will have personnel ready and able to respond to possible terrorist acts in the future.
Repeal of the Montgomery Amendment is a good move, one that any politician should be able to rally behind.