Did A Federal Judge Just Give The National Guard Back To The States?

ANALYSIS – This is a huge and underreported story about the role of state militias in America. The republic was founded by state militias.

The Second Amendment references state militias. State militias, manned by armed citizens, were intended to be the ultimate protectors of states against an overreaching federal government.

Yet, the current National Guard, the supposed descendant of those state militias, is barely recognizable as those militias today.

For over a century, the federal government has steadily extended its authority over the Guard, making the state's Guard units a de facto second reserve for the national Armed Forces. (RELATED: Media Manufactures Existential Threat To US Armed Forces)

This is far from what the Founders intended.

While each state's National Guard is ostensibly under the command of the governor on a day-to-day basis, Uncle Sam can federalize them almost at will. And has done so with increasing frequency.

As The Army Times noted: “States, who once held near-total control over their militias, sacrificed autonomy on the altar of a federal financial firehose, which gave the Defense Department leverage to shape the Guard in the image of its full-time counterparts.” 

But, just as the battle between red (conservative) and blue (liberal) states – and an increasingly encroaching blue federal government – is reaching a fever pitch, a recent federal court ruling in Texas just upended that status quo.

Due to that ruling, the authority over the Guard may now be changing back in favor of the states.

The decision came as the result of Texas Gov. Greg Abbott's legal fight against the Biden Pentagon's COVID-19 vaccine mandate applying to the Texas National Guard. (RELATED: Abbott Defies Justice Department's New Legal Warning)

The Abbott administration, later joined by Alaska's governor, asked a federal judge in Tyler, Texas, to block the DOD's vaccine mandate back in January 2022.

The Army Times reported: “In court filings, the governors claimed that ‘only the state, through its governor, possesses legal authority to govern state National Guard personnel' when not mobilized under federal control, regardless of who is cutting the drill checks.”

The June 12 opinion, written by U.S. Circuit Judge Andrew Oldham and signed by U.S. Circuit Judge Don Willett, was pretty clear that the court agreed with Abbott.

Oldham, a Donald Trump appointee and adherent of ‘originalism' (giving weight to the Founder's original meaning), wrote: “The President of the United States [Joe Biden] asserts the power to punish members of the Texas National Guard who have not been called into national service.”

However, Oldham added: “The Constitution and laws of the United States, however, deny him that power.”

Referring to the government's proposed punishments for Guard members who refused the vaccine mandate Oldham continued, “unlawfully usurp Governor Abbott's exclusive constitutional authority to ‘govern' the non-federalized Texas militia.”

Oldham believes that state authority includes administrative actions like withholding pay and discharging troops.

So, what does this mean in practical terms?

Jeff Jacobs, a retired Army Reserve two-star general, attorney and author of a book analyzing the Guard's dual control structure, warned that Oldham's reasoning could allow governors to defy any federal requirement they don't want to enforce on their state's National Guard.

Jacobs ignores that this appears to be what the Founders intended.

In any case, as the Army Times notes:

Even after Oldham's ruling, the legal proceedings are far from resolved. The district court will soon resume considering the preliminary injunction in light of the opinion, but a trial could be months or years away, experts said.

“This could be a year or more before we get a final resolution in the case,” Mazzone [Jason Mazzone, a law professor at the University of Illinois Urbana-Champaign's College of Law] noted. “If the Biden administration loses and decides to go to the U.S. Supreme court, that could prolong the case for a couple more years while the court decides whether or not to grant review of the case.”

Considering that today's Supreme Court is more ‘originalist' than ever, it would likely be amenable to endorsing the Oldham opinion favoring state control over the Guard. (RELATED: Supreme Court Ruling Undermines Corporate Wokeness)

And while it may take a while, that could signal a paradigm shift in the balance between state and federal power.

The opinions expressed in this article are those of the author and do not necessarily reflect the positions of American Liberty News.

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