Could a 2010 Idaho ballot initiative bar federal deployment of the Idaho National Guard outside U.S. borders?

Plain-English summary

The proposed initiative would have amended Idaho Code § 46-107 to declare that the governor "shall not be obliged to make any effort to conform to any terms of the national defense act or other laws of the United States which exceed the authority vested in the federal government by the United States Constitution." It would also have added a new chapter limiting federal authority to deploy any branch of the Idaho militia, including the Idaho National Guard, outside U.S. borders unless one of three conditions was met (training under one month, foreign-army invasion of U.S. territory, or pursuit of insurrectionists across a U.S. border).

Attorney General Lawrence Wasden's certificate concluded the initiative was unconstitutional. Three reasons:

1. Conflict with Idaho Code § 46-101. Idaho already statutorily "accepts the benefits and provisions of the national defense act" and intends to "conform to all laws and regulations of the United States affecting the national guard." The initiative would directly contradict this acceptance.

2. Conflict with Idaho Const. art. IV, § 4. Idaho's own constitution makes the governor "commander-in-chief of the military forces of the state, except when they shall be called into actual service of the United States." The governor's authority therefore disappears when the Guard is federalized, exactly the opposite of what the initiative tried to assert.

3. Federal Militia Clauses and Supremacy Clause. U.S. Const. art. I, § 8, cl. 15 gives Congress the power to "provide for calling forth the militia," and 32 U.S.C. § 102 lets Congress determine national security needs and order Guard units to active federal duty. Haywood v. Drown and the Supremacy Clause invalidate any state law that contradicts an Act of Congress.

The AG's certificate noted bluntly: "There are no alterations or revisions to this Initiative that would render it constitutional."

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

State-level efforts to limit federal deployment of National Guard units to overseas operations recur in different political contexts. Several states considered similar measures during the Iraq War period. The constitutional analysis is consistent: the Militia Clauses give Congress the dispositive authority over Guard federalization, and a state cannot override that.

The Idaho Constitution's commander-in-chief clause is unusually clear. Most state constitutions follow a similar pattern: the governor commands state forces only until the federal government calls them into U.S. service. The proposed initiative ran into the state's own constitution before it ever reached federal preemption.

Common questions

Q: Why can't a state limit deployment of its own National Guard?
A: National Guard units are dual-status forces. They can be in state service (under the governor) or federal service (under the President as Commander-in-Chief). When federalized, they are no longer state forces. The Militia Clauses of the U.S. Constitution and federal statutes (32 U.S.C. § 102) give Congress the authority to determine when federal service is needed.

Q: What about training deployments under one month, the initiative's first exception?
A: The exception did not solve the constitutional problem because the federal government's authority to deploy the Guard is not limited by duration. A state cannot pick which deployments it will allow.

Q: Does the AG's analysis apply to the Idaho Air National Guard too?
A: Yes. The Air National Guard is part of the same dual-status framework. Federalization authority extends to both Army and Air components.

Q: Did this initiative reach the ballot?
A: This is the certificate of review. The reader should consult Idaho Secretary of State election records to confirm whether the petition advanced.

Citations and references

Constitutional and statutory provisions:
- Idaho Code § 34-1809 (certificate of review)
- Idaho Code §§ 46-101, 46-107
- Idaho Const. art. IV, § 4
- U.S. Const. art. I, § 8, cl. 15 (Militia Clauses)
- U.S. Const. art. VI, cl. 2 (Supremacy Clause)
- 32 U.S.C. § 102

Cases:
- Haywood v. Drown, 556 U.S. 729 (2009)
- Hayfield N. R.R. Co. v. Chicago & N.W. Transp. Co., 467 U.S. 622 (1984)

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/C021610f.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
LAWRENCE G. WASDEN

February 16, 2010

The Honorable Ben Ysursa
Idaho Secretary of State
STATEHOUSE MAIL
Re:

Certificate of Review
Proposed Initiative Relating to National Guard (Amend Idaho Code § 46-107 and Title 46, Idaho Code)

Dear Secretary of State Ysursa:
An initiative petition was filed with your office on January 19, 2010. Pursuant to Idaho Code § 34-1809, this office has reviewed the petition and has prepared the following advisory comments. Given the strict statutory timeframe within which this office must review the petition, our review can only isolate areas of concern and cannot provide in-depth analysis of each issue that may present problems. Further, under the review statute, the Attorney General's recommendations are "advisory only." The petitioners are free to "accept or reject them in whole or in part." The opinions expressed in this review are only those that may affect the legality of the initiative. This office offers no opinion with regard to the policy issues raised by the proposed initiative.

BALLOT TITLES

Following the filing of the proposed initiative, this office will prepare short and long ballot titles. The ballot titles must impartially and succinctly state the purpose of the measure without being argumentative and without creating prejudice for or against the measure. While our office prepares titles for the initiative, petitioners may submit proposed titles for consideration. Any proposed titles should be consistent with the standard set forth above.

INTRODUCTION

The proposed initiative ("Initiative") seeks to amend Idaho Code § 46-107 to provide the following: "The governor, however, shall not be obliged to make any effort to conform to any terms of the national defense act or other laws of the United States which exceed the authority vested in the federal government by the United States Constitution." The Initiative also proposes to amend Title 46 by adding a new chapter to limit federal authority to deploy any branch of the Idaho militia, including the National Guard, outside the territorial boundaries of the United States. For the reasons set forth below, it is likely the Court would find the proposed amendments unconstitutional.

MATTERS OF SUBSTANTIVE IMPORT

A.

The Proposed Amendments to Title 46, Idaho Code, are Unconstitutional

The Initiative seeks to limit the governor's authority to deploy "any branch of the Idaho militia, including the national guard" outside the territorial boundaries of the United States unless one of the following conditions is met:

(1) The governor wishes parts of the militia to participate in training exercises. No member of Idaho militia shall be compelled to be outside the United States for a training exercise for more than a month in any given year.
(2) The territory of the United States has been invaded by a foreign army, and such deployment is necessary to specifically repel such an invasion.
(3) Participants in a domestic insurrection have fled across a border of the United States and such deployment is necessary to give chase.

The proposed amendments directly conflict with Idaho Code § 46-101. Section § 46-101 states: "The state of Idaho does hereby accept the benefits and provisions of the national defense act, and it is the intent of this code to conform to all laws and regulations of the United States affecting the national guard." The National Defense Act gives Congress the discretionary authority to "determine [sic] that more units and organizations are needed for the national security than are in the regular components of the ground and air forces, the Army National Guard of the United States and the Air National Guard of the United States, or such parts of them as are needed, together with such units of other reserve components as are necessary for a balanced force, shall be ordered to active Federal duty and retained as long as so needed." 32 U.S.C. § 102 (underlining added).

The proposed amendments suggest that the governor has the power to declare a federal law, code or treaty null and void, specifically when he or she determines that the United States government has exceeded its authority as defined in Article I, Section 8 of the United States Constitution. However, under the Idaho Constitution, the governor has no authority over the state's military forces when they have been called into national duty. The Idaho Constitution provides that "[t]he governor shall be commander-in-chief of the military forces of the state, except when they shall be called into actual service of the United States." Idaho Const. art. IV, § 4 (underlining added). Contrary to the proposed legislation, the governor is not vested with the discretion to resist foreign deployment, or resist conforming to the National Defense Act. Under the United States Constitution, Congress has the power to "provide for calling forth the militia to execute the laws of the Union ...." U.S. Const. art. I, § 8, cl. 15. Pursuant to federal law, Congress has the authority to determine the national security needs of the United States, which includes the discretion to deploy the National Guard.

The Initiative proposes to limit the federal government's authority to deploy the Idaho National Guard outside the territorial boundaries of the United States. Under the Preemption clause it is "clear that federal law is as much the law of the several States as are the laws passed by their legislatures." Haywood v. Drown, --- U.S. ---, 129 S. Ct. 2108, 2114, 173 L.Ed.2d 920 (2009). "Preemption doctrine flows from the Supremacy Clause of the United States Constitution and invalidates any state law that contradicts or interferes with any Act of Congress." Hayfield Northern Railroad Co., Inc. v. Chicago and Northwestern Transp. Co., 467 U.S. 622, 627, 104 S. Ct. 2610, 81 L.Ed.2d 527 (1984). Therefore, the governor would violate the United States Constitution, as well as the Idaho Constitution, by not conforming to federal law pursuant to the authority vested in the Congress.

B.

Recommended Revisions or Alterations

There are no alterations or revisions to this Initiative that would render it constitutional.

CERTIFICATION

I HEREBY CERTIFY that the enclosed measure has been reviewed for form, style, and matters of substantive import. The recommendations set forth above have been communicated to the Petitioner via a copy of this Certificate of Review, deposited in the U.S. Mail to Alana Grimm, 2817 E. St. James Ave., Hayden, Idaho 83835-7544.

LAWRENCE G. WASDEN
Attorney General