BRATTLEBORO-In response to Rep. Laura Sibilia's legislative update on House 355, the Defend the Guard Act, introduced in the Vermont House of Representatives on Feb. 26, 2025, yet to be voted on: this act is critical to prevent the federal misuse of the Vermont National Guard.
The act would require the governor to review all orders that place the Vermont National Guard on "federal active duty status," and to take "all necessary and appropriate action to prevent the Vermont National Guard from being placed on federal active duty" unless the U.S. Congress has passed an official declaration of war or has explicitly called the Vermont National Guard to repel a military invasion of the United States; suppress an insurrection; or execute constitutional laws of the United States.
I agree that we have not declared war since 1942, but that condition can be rephrased in the act to require that deployment for military excursions only brought by Congress, as required by the U.S. Constitution, such as the authorizations for the Vietnam, Iraq, Afghanistan wars.
Congress has explicitly voted to not authorize the current military action against Iran. As such, the Defend the Guard Act could require our governor to refuse to release the Vermont National Guard for federal active duty in this unconstitutional war.
You expressed concern that such an action by our governor would "face immediate legal challenge and likely lose in federal court." You refer to the U.S. Supreme Court case Perpich v. U.S. Department of Defense as preventing a governor from refusing to release a state's National Guard for deployment to combat.
That decision was not that broad and, in fact, it recognized there may be instances where a state's need for its National Guard supersedes Congress' power to federalize the Guard, such as in times of local emergency, when a governor may "veto the proposed mission."
Based on the reasoning in Perpich, the act likely would be upheld in federal court if the governor refuses to release the Vermont National Guard for deployment as part of an unconstitutional military excursion.
I urge my fellow Vermonters to contact their legislators to revise the Defend the Guard Act to align with Article 32 of the United States Code regarding States' and Congress' control of the National Guard and to enact it in the next legislative session.
Ed Burke
Brattleboro
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