Is the National Guard's serving in Iraq unconstitutional?

The National Guard is supposed to be the force under the command of a state governor used for recovering from various disasters or an invasion. Well Article 1, Sect. 10 of the Constitution states thats that no state shall not "engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay."

Now if the troops belong are under the states' command then would it not be unconstitutional for the troops of that state to be involved in foreign combat?

[edit on 11-4-2005 by abeyer]

read the National Defense Act of 1916.

The National Defense Act of 1916 further expanded the Guard's role and guaranteed the State militias' status as the Army's primary reserve force. Furthermore, the law mandated use of the term "National Guard" for that force. Moreover, the President was given authority, in case of war or national emergency, to mobilize the National Guard for the duration of the emergency. The number of yearly drills increased from 24 to 48 and annual training from five to 15 days. Drill pay was authorized for the first time

also dont forget the National Guard Mobilization Act of 1933.

The National Guard Mobilization Act of 1933 made the National Guard of the United States a component of the Army at all times, which could be ordered into active federal service by the President whenever Congress declared a national emergency.

also dont forget the Total Force Policy of 1973

Following the experience of fighting an unpopular war in Vietnam, the 1973 Total Force Policy was designed to involve a large portion of the American public by mobilizing the National Guard from its thousands of locations throughout the United States when needed. The Total Force Policy required that all active and reserve military organizations of the United States be treated as a single integrated force. A related benefit of this approach is to permit elected officials to have a better sense of public support or opposition to any major military operation. This policy echoes the original intentions of the founding fathers for a small standing army complemented by citizen-soldiers.

so in reality its not illegal to deploy the citizen soldiers overseas. we have seen in the past of National Guard troops being deployed overseas long before the Iraq war came.

Since the CiviL War, the established American forces in battle have been primarily made of reserves (not counting state militias and other volunteer military styled orginisations used for CONUS duties).

All it takes is the Governors approval and order to deploy.

Thanks for the information. I was unaware of the acts in 1916 and 1973, and will look into them. I wasnt questioning this as a criticism of Iraq so much as the legality of serving overseas in general, Iraq just being the best example in these times.


[edited out big quote -nygdan]

[edit on 5-11-2005 by Nygdan]

You could make an interesting argument that those acts and policies are unconstitutional; the constitution trumps legislation.

Originally posted by deltaboy
read the National Defense Act of 1916.

[and others]

These acts don't change that tho, at least if the constituion is interpreted as prohibiting overseeas deployment. Only an ammendment would change it.

BUT, the specific section of the constitution states:

No State shall, without the Consent of Congress [...]or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

So these above acts are congress consenting to them acting.

[edit on 5-11-2005 by Nygdan]