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Minnesota Legislature

Office of the Revisor of Statutes

SF 3602

as introduced - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

KEY: stricken = removed, old language.
underscored = added, new language.

Current Version - as introduced

1.1A resolution
1.2memorializing Congress and the President of the United States, addressing the limits
1.3to the constitutional and statutory authority of the President to federalize and deploy
1.4the Minnesota National Guard in Iraq; declaring that the authority for that deployment
1.5has terminated; requesting actions be taken to terminate federalization and bring troops
1.6back to Minnesota as members of the Minnesota National Guard; and reaffirming that
1.7Minnesota National Guard members be limited to service on behalf of the state of
1.8Minnesota, unless properly and lawfully called into federal service.
1.9WHEREAS, under Article I, Section 8, Clause 15 of the United States Constitution,
1.10Congress may call forth the militia to execute the laws of the union, suppress insurrections and
1.11repel invasions; and
1.12WHEREAS, since 1933, federal law has provided that persons enlisting in a state National
1.13Guard unit simultaneously enlist in the National Guard of the United States, a part of the United
1.14States armed forces, where the enlistees retain their status as state guard members unless and
1.15until ordered to active federal duty and then revert to state status upon being relieved from
1.16federal service; and
1.17WHEREAS, in 1986, Congress passed and the President signed the "Montgomery
1.18Amendment," which provides that a governor cannot withhold consent with regard to active duty
1.19outside the United States because of any objection to the location, purpose, type, or schedule of
1.20such duty; and
1.21WHEREAS, under the United States Constitution, each state's national guard unit is
1.22controlled by the governor in time of peace, but can be called up for federal duty by the President,
1.23provided that the President is acting pursuant to the Constitution and laws of the United States; and
2.1WHEREAS, the War Powers Act of 1973 (Public Law 93-148) specifically limits the power
2.2of the President of the United States to wage war without the approval of Congress; and
2.3WHEREAS, in October 2002, the U.S. Congress authorized military force under the
2.4Authorization for the Use of Military Force Against Iraq, Public Law No: 107-243, (AUMF) a law
2.5enacted in response to a presidential request under the War Powers Act, which states in part that:
2.6The President is authorized to use the armed forces of the United States as he determines
2.7to be necessary and appropriate in order to:
2.8(1) defend the national security of the United States against the continuing threat posed by
2.9Iraq; and
2.10(2) enforce all relevant United Nations Security Council Resolutions regarding Iraq; and
2.11WHEREAS, the AUMF contained neither a termination date nor a process or procedure to
2.12determine when the authorization should terminate; and
2.13WHEREAS, U.S. forces, including members of the Minnesota National Guard and guard
2.14members from other states, have long since addressed the purposes recited under the AUMF, and
2.15Iraq does not pose a continuing threat to the national security of the United States, nor is there an
2.16extant United Nations Security Council Resolution to be implemented; and
2.17WHEREAS, the President may not maintain U.S. forces, and in particular members of the
2.18Minnesota National Guard, in Iraq other than for the purposes set forth by Congress in the AUMF.
2.19Without a specific date for withdrawal of U.S. forces from Iraq in the AUMF or a method or
2.20formula for determining the time for withdrawal, and in the absence of congressional legislation
2.21curing these omissions, the President is required to order the withdrawal of troops within a
2.22reasonable time and in a reasonable manner. The President has taken no such action; and
2.23WHEREAS, other than the AUMF, there is no authority under the Constitution or the laws
2.24of the United States for the continued presence of Minnesota National Guard members in Iraq; and
2.25WHEREAS, the maintenance of Minnesota National Guard members in Iraq beyond the
2.26time and scope set forth in the AUMF has resulted in significant harm to Guard members and
2.27their families, including death and injury, loss of time together, and financial hardship; and
2.28WHEREAS, the Minnesota Legislature finds that Congress should revisit the 1986
2.29Montgomery Amendment and adopt legislation that restores the powers of the governors of the
2.30several states to withhold consent to federalization of their National Guards, except where a
2.31declaration of war has been adopted or where the United States faces attack or invasion, and the
3.1President has invoked powers authorized by an act of Congress to address those circumstances;
3.2NOW, THEREFORE,
3.3BE IT RESOLVED by the Legislature of the State of Minnesota that the Authorization for
3.4the Use of Military Force of October 16, 2002 having expired, the Legislature declares that all
3.5members of the Minnesota National Guard should be promptly and expeditiously withdrawn from
3.6Iraq, subject only to conditions of time and manner specifically required to assure their safety
3.7and well-being during removal operations; and
3.8BE IT FURTHER RESOLVED that the Legislature of the State of Minnesota calls on
3.9the Governor of Minnesota to take prompt steps as the Commander-in-Chief of the Minnesota
3.10National Guard to effectuate these purposes; and
3.11BE IT FURTHER RESOLVED that the Legislature of the State of Minnesota reaffirms that
3.12the Minnesota National Guard shall be limited to service on behalf of the State of Minnesota,
3.13unless called into federal service pursuant to a declaration of war or a duly enacted federal statute
3.14authorizing the use of military force; and
3.15BE IT FURTHER RESOLVED that the attorney general of the State of Minnesota is
3.16authorized to appear in any state or federal court with jurisdiction over the deployment of the
3.17Minnesota National Guard to defend any decision of the governor and adjutant general with
3.18respect to their decision to deploy or not deploy the guard; and
3.19BE IT FURTHER RESOLVED that no member of the Minnesota National Guard shall
3.20decline, while serving in the U.S. armed forces, to follow military orders; and
3.21BE IT FURTHER RESOLVED that the Secretary of State of the State of Minnesota shall
3.22transmit copies of this memorial to the President of the United States, the Speaker and the Clerk
3.23of the United States House of Representatives, the President and the Secretary of the United
3.24States Senate, the United States Secretary of State, the presiding officers of both houses of the
3.25Legislature of each of the other states of the Union, to Minnesota's Senators and Representatives
3.26in Congress, and to the Governor of the state of Minnesota.