Legislature(2023 - 2024)GRUENBERG 120
04/16/2024 01:00 PM House MILITARY & VETERANS' AFFAIRS
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| Audio | Topic |
|---|---|
| Start | |
| SB154 | |
| HB373 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | SB 154 | TELECONFERENCED | |
| *+ | HB 373 | TELECONFERENCED | |
HB 373-SERVICE OF ARMED FORCES OF THE STATE
1:33:19 PM
CHAIR WRIGHT announced that the final order of business would be
HOUSE BILL NO. 373, "An Act relating to the organized and
unorganized militia; and relating to deploying the militia of
the state into active service in a combat zone."
1:33:38 PM
REPRESENTATIVE DAVID EASTMAN, Alaska State Legislature, as prime
sponsor, paraphrased the sponsor statement for HB 373 [included
in the committee packet], which read as follows [original
punctuation provided]:
House Bill 373, the Defend the Guard Act, is a
necessary step to realign the State of Alaska with the
U.S. Constitution. This legislation prevents overseas
deployment of the Alaska National Guard into combat
without a Congressional declaration of war as required
under Article I, § 8 of the U.S. Constitution.
In an era of increasing federal overreach, the
temptation to send Alaska National Guardsmen into
combat in places like Syria, Gaza and Ukraine must be
checked by the legal requirement that these forces be
used as intended by the Constitution. The Defend the
Guard Act will ensure that the men and women who join
our state armed forces have confidence that they will
only be ordered into overseas active-duty combat when
needed to defend the nation and subsequent to
constitutional authorization by Congress.
This requirement ensures fidelity with the United
States Constitution while also preserving our state
armed forces for their intended function. During
peacetime, when the Congress does not declare war, the
Alaska National Guard remains available to serve the
State of Alaska and, if directed, deploy to any
location within the United States. The Defend The
Guard Act seeks to reinforce the constitutional
relationship between the armed forces of the state and
the federal government concerning the overseas
deployment of members of the Alaska National Guard.
Under House Bill 373, members of the Alaska National
Guard may be deployed to active-duty combat in any
possession of the United States without limitation.
This includes each of the United States, the District
of Columbia, the U.S. Virgin Islands, Guam, Puerto
Rico, American Samoa, the Northern Mariana Islands,
Midway, Wake, Jarvis, Baker, Howland, Navassa, Kingman
Reef, Johnston Atoll, Palmyra Atoll, and other U.S.
possessions. The ability of the Alaska National Guard
to defend the United States in any of these places is
in no way limited by House Bill 373.
Furthermore, passage of the Defend the Guard Act will
directly contribute to ending the current nationwide
recruitment crisis facing the National Guard. Those
who wish to serve the nation by participating in
combat operations overseas may pursue enlistment or
commissioning in any active-duty service branch. Those
who wish to serve our state in peacetime in ways other
than active-duty overseas combat, may do so by joining
the Alaska National Guard or the Alaska State Defense
Force. While service in any portion of our state armed
forces may involve combat during time of war, and may
involve deployment outside the state for training,
national emergency response, and other authorized
purposes, use of our state armed forces for overseas
combat should be limited to times of war.
The Defend the Guard Act also contributes to
encouraging prudent foreign policy guided by the
United States Constitution. By requiring a declaration
of war for overseas combat deployments of the Alaska
National Guard, House Bill 373 requires an additional
layer of scrutiny for any overseas deployment likely
to put members of the Alaska National Guard at risk of
death or serious injury in combat. The deliberative
process required by Article I, § 8 encourages
policymakers to assess the opportunities as well as
the costs and consequences of using Alaska National
Guard units to engage in military actions overseas.
1:35:50 PM
REPRESENTATIVE GROH noted that some members of the National
Guard have been deployed into warzones, and some have been
killed or wounded. He asked if the bill sponsor is aware of any
lawsuits around guard deployment into warzones.
REPRESENTATIVE EASTMAN referred to Perpich v. Department of
Defense, 496 US 334, (1990), which related to overseas guard
deployment for training purposes. He stated that the Supreme
Court of the United States decided that oversees deployment for
training was allowable. In response to a follow-up question
concerning any other cases involving combat zones, he expressed
uncertainty and deferred the question.
1:39:03 PM
DARIN GAUB, Lieutenant Colonel, Co-Founder, Restore Liberty,
stated that he is unaware of any current cases.
REPRESENTATIVE GROH expressed the opinion that given the legal
issues presented by the proposed legislation, a legal opinion
from Legislative Legal Services should be sought.
1:40:33 PM
REPRESENTATIVE SADDLER asked whether Alaska National Guard
members can be deployed outside of the state for duty that is
not in support of an armed conflict or for active service in a
combat zone.
REPRESENTATIVE EASTMAN responded in the affirmative. In
response to a follow-up question asking for the percentage of
Alaska guardsmen that have served under these conditions, he
expressed uncertainty.
1:41:13 PM
REPRESENTATIVE CARPENTER questioned whether the proposed
legislation would apply to "M-Day" soldiers, the organized
militia, and the Active Guard Reserve in Alaska.
REPRESENTATIVE EASTMAN replied that if an individual is serving
in the Alaska militia, it would apply. He stated that this
brings up the legal question of whether an individual is a
member of the militia. He deferred to invited testifiers to
further answer the question.
1:42:54 PM
MICHAEL MAHARREY, National Communications Director, Tenth
Amendment Center, expressed the understanding that the proposed
legislation would apply to any National Guard unit or member, so
if the person is not part of the Army or Army Reserves, the bill
would apply. He stressed that the purpose would be to stop
unconstitutional deployments of the state militia into combat
zones.
REPRESENTATIVE CARPENTER asked whether soldiers within a guard
unit would be activated by a presidential order or by a DoD
order. He questioned whether the guard would be ordered by the
state militia or the federal government. Furthermore, he
questioned whether state law would exceed federal authority.
MR. MAHARREY explained that the point of the proposed bill would
be to authorize the governor to not allow the state's guard
units to be sent into combat without constitutional
justification. He expressed the opinion that for decades the
federal government has taken the country into war without proper
constitutional justification. He expressed the understanding
that the proposed legislation would be an attempt to rein in
federal executive overreach. He pointed out that in other
states, state militias have been deployed to combat zones;
therefore, when a natural disaster or other issue occurs, the
units are not available.
1:46:30 PM
REPRESENTATIVE RAUSCHER questioned the difference between the
Alaska National Guard and the Alaska State Defense Force.
REPRESENTATIVE EASTMAN explained that the state militia consists
of the National Guard and the Alaska State Defense Force. He
pointed out that every state has a guard force, but only some
would have a state defense force. He continued that the guard
has a state and federal component, while the defense force has
only a state component. In response to a follow-up question on
who oversees the [state defense] force, he stated that there is
a commander.
1:47:54 PM
REPRESENTATIVE GRAY shared that during his experience in the
National Guard, people wanted to deploy and were excited about
combat deployment. He expressed the understanding that the
guard has changed and that the guard deploys often. He
suggested that if deployments were taken away, there would be a
recruitment problem.
REPRESENTATIVE EASTMAN expressed the understanding that there
are people who want to deploy, while others do not. He
continued that some are not joining because there is the
expectation they will be deployed.
1:49:37 PM
REPRESENTATIVE SHAW asked whether the Naval Militia would be
under the proposed bill.
REPRESENTATIVE EASTMAN responded that the Naval Militia would
fall under the bill; however, this would be considered a
different part of the state militia.
1:49:58 PM
REPRESENTATIVE SADDLER asked how many times U.S. Congress has
declared war in the Twentieth Century.
REPRESENTATIVE EASTMAN answered that it has declared war twice:
World War I and World War II. In response to a follow-up
question, he expressed the understanding that U.S. Congress has
not declared any wars in the Twenty-First Century.
REPRESENTATIVE SADDLER suggested that the proposed legislation
would have prevented the Alaska National Guard from being
deployed during the Vietnam War, Korean War, U.S. invasion of
Panama, and more.
REPRESENTATIVE EASTMAN expressed agreement and opined that U.S.
Congress would have had to make a war declaration in these
accounts and then the guard would have been deployed.
REPRESENTATIVE SADDLER, concerning Section 3 of the proposed
legislation, pointed out that there would be a prohibition for
an individual to serve concurrently in the Alaska State Defense
Force and in the Alaska National Guard. He questioned whether
many individuals are concurrently serving.
REPRESENTATIVE EASTMAN answered that this provision would
alleviate confusion, as the intent is that these should remain
two separate organizations. He discussed the confusion around
the defense force and whether it is a part of the guard. He
expressed the understanding that the proposed legislation would
ensure that these two remain separate, as the defense force
exists if the guard is deployed outside of state.
1:52:40 PM
MR. MAHARREY reiterated that Perpich v. Department of Defense is
the court's decision that would limit a governor's discretion on
deploying the National Guard for overseas training. He stressed
that HB 373 is about reestablishing a constitutional balance in
relation to war powers. He expressed the hope that if enough
states pass this type of bill, the U.S. Congress would "do its
job." He referred to the makers of the Constitution of the
United States, and he suggested that they did not want the
question of war to be put on one person, rather the decision
should be made in the U.S. Congress, as this is a deliberative
body that represents the people. He continued that this is the
point behind the proposed legislation, as it would make it more
difficult to deploy the guard units without a declaration of
war. He urged members to pass HB 373. He concluded by reciting
a quote from Daniel Webster concerning the War of 1812 and the
issue of federalizing the state's militia. He urged the
committee to support the proposed legislation.
1:56:25 PM
REPRESENTATIVE SHAW commented that the National Guard is a
voluntary organization, and its oath is to defend the
Constitution of the United States, not of Alaska. He concurred
with comments made by Representatives Gray and Saddler.
1:57:06 PM
REPRESENTATIVE CARPENTER asked whether it is the sponsor's
opinion that the only time the country should exercise military
capacity is during a declaration of war.
REPRESENTATIVE EASTMAN explained that the bill says the only
time a National Guard member can be sent overseas for combat is
when there is a declaration of war by congress. He stated that
the bill would not limit active duty, rather it would reinforce
that the role of guardsmen is constitutionally different from
that of active military.
1:59:07 PM
LIEUTENANT COLONEL GAUB shared that he served 28 years in
service, ranging from active duty to the National Guard. He
explained that he ended his career to "uphold my oath ... and do
what was right." After this he started the Restore Liberty
organization. He stated that he has commanded up to 3,500
individuals and served the country as a global strategist. He
further discussed his qualifications.
LIEUTENANT COLONEL GAUB expressed the opinion that HB 373 is not
about misunderstanding the structure of the National Guard, and
it would not impact this. He argued that this would not move
the guard to a state-centered security force, rather it would
urge the U.S. Congress to do its duty in accordance with the
constitution. He expressed the opinion that the bill is not
unconstitutional; moreover, it would ensure the constitution is
followed, as the President should only serve as a wartime
commander-in-chief when authorized by Congress. He urged
members to vote yes on the proposed legislation.
2:03:38 PM
REPRESENTATIVE GROH asked whether there is a difference between
this philosophy and binding constitutional laws.
LIEUTENANT COLONEL GAUB answered that there are always
differences of opinion; however, he argued that the constitution
and its plain language has not changed. He noted the Perpich v.
Department of Defense did not address the guard going to war,
which would have to be declared by Congress. He argued that the
constitution should not be subject to people's opinions.
REPRESENTATIVE GROH commented on the importance of obtaining a
legal opinion on the proposed legislation.
2:05:32 PM
REPRESENTATIVE CARPENTER asked if there is a difference between
deploying active military members and guard members, without a
declaration of war from a presidential decision to do so.
LIEUTENANT COLONEL GAUB offered that Article 1, Section 8, of
the Constitution of the United States deals with all military
members, and U.S. Congress must declare war before anyone is
deployed. He discussed the problem of sending guard members
overseas into conflict zones, as this has occurred for decades,
since [the terrorist attacks of September 11, 2001]. He
suggested that this is keeping the world in a perpetual state of
conflict, as all authority has been ceded to the president.
REPRESENTATIVE CARPENTER asked whether a declaration of war
would be the only time the commander in chief of the U.S. Armed
Forces should use military force.
LIEUTENANT COLONEL GAUB responded that if the country goes into
a conflict zone, the people and the states in the U.S. should be
able to require their voices be heard in making this assessment.
He argued that this is universal in all areas of the military.
He continued that what should not be impacted is the right to
self-defense, of which the guard is tasked to do.
REPRESENTATIVE CARPENTER reiterated the question, asking whether
the President should use military force only when war has been
authorized by Congress.
LIEUTENANT COLONEL GAUB answered that because of the War Powers
Act, the President has a limited timeframe to operate without
congressional consent, but to continue any conflict, Congress
would need to act.
REPRESENTATIVE CARPENTER questioned whether under the proposed
bill, the state could restrict the guard's deployment if the
President ordered deployment.
LIEUTENANT COLONEL GAUB responded that the guard takes time to
move, and in this timeframe most of the guard's willingness
would be consumed. He added that most of this timeframe would
be covered by the active-duty military.
REPRESENTATIVE CARPENTER noted that there are some active-duty
units with a high level of readiness, but most are not able to
deploy on a moment's notice. He pointed out that if the
President can use the full force of the military only for a
short period, and a bill is passed that restricts a state's
deployment of its forces, then the state would be blocking any
immediate deployment.
LIEUTENANT COLONEL GAUB pointed out that this would be a rare
circumstance. He argued that when immediate action is required,
the active-duty forces will be deployed, and when Congress
authorizes war, the President will be the commander in chief of
the U.S. Armed Forces. He stated that without congressional
authority, the President should not be able to act beyond this
timeframe.
REPRESENTATIVE CARPENTER advised that many aircraft cannot move
without reserve refuelers.
2:12:48 PM
CHAIR WRIGHT opened public testimony on HB 373. After
ascertaining that there was no one who wished to testify, he
closed public testimony.
2:13:14 PM
REPRESENTATIVE EASTMAN commented that one of the ways to provide
defensive operations, which includes the National Guard, would
be to have Congress act quickly to make a declaration of war.
He suggested that the country has drifted away from any fast
action by Congress. He argued that the proposed bill would make
the expectation clear that Congress should proactively act in
matters of war. He expressed the opinion that nothing in the
legislation would limit the National Guard from protecting the
country.
2:15:20 PM
CHAIR WRIGHT announced that HB 373 was held over.
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