Can Tennessee bar its National Guard from active-duty combat overseas unless Congress formally declares war?

Subject

Whether Tennessee House Bill 1609 (113th General Assembly, 2nd Session, 2024), which would prohibit release of the Tennessee National Guard into "active duty combat" absent a formal congressional declaration of war or a specific Article I, § 8, Clause 15 call-up, is constitutional.

Plain-English summary

Senator Rusty Crowe and Representative Jay D. Reedy asked the AG to analyze a bill that would limit when the Tennessee National Guard could be sent into active-duty combat overseas. House Bill 1609 would allow Guard members to be released for combat in only two situations: (1) Congress passes an official declaration of war under Article I, § 8, Clause 11, or (2) Congress formally calls forth the Guard under Article I, § 8, Clause 15 to execute the laws of the union, repel an invasion, or suppress an insurrection. The bill specifically does not block Title 32 deployments for "defense support of civil authority missions within the United States and United States territories."

The AG's verdict: constitutionally suspect under the Supremacy Clause. The federal Constitution gives Congress sweeping power over the armed forces, and the Supreme Court has read the Militia Clauses (Article I, § 8, Clauses 15 and 16) as supplements to the broader power to "raise and support armies" and "provide for the common defence" rather than as limits on it. Perpich v. Department of Defense, 496 U.S. 334 (1990), confirmed this and held that Guard members are simultaneously enlisted in the National Guard of the United States, so when called to federal service they are relieved of state status for the duration.

Two federal statutes drive the preemption analysis. First, 10 U.S.C. § 12301(a) lets Congress order Guard members into active reserve duty in time of war or national emergency declared by Congress, "or when otherwise authorized by law," without governor consent. Second, the War Powers Resolution (50 U.S.C. §§ 1541-1550) lets the President use military force after notifying Congress, with limits at the 60-day mark, and lets Congress authorize use of force without a formal declaration of war (the post-9/11 AUMFs are the example). House Bill 1609's requirement of a formal declaration of war would prevent Tennessee Guard members from going where Congress has lawfully authorized them to go without such a declaration. That conflict triggers conflict preemption.

The opinion also flags two further problems. First, the meaning of "war" in Article I, § 8, Clause 11 is unsettled. Bosnia and Haiti deployments, for example, have been opined by the Office of Legal Counsel as not rising to "war." So the bill's limit ("only when Congress has declared war") could fail to allow deployment even when federal law would permit it. Second, even within Clause 11's scope, the War Powers Resolution permits military force before a declaration; the bill would block participation in those operations.

What this means for you

If you are a Tennessee legislator

The bill is vulnerable to a Supremacy Clause challenge. Federal law (10 U.S.C. § 12301(a) and the War Powers Resolution) authorizes deployment of Guard members in circumstances broader than the bill allows. A state law restricting deployment in those circumstances likely conflicts with federal law. If the policy goal is symbolic (state opposition to overseas deployments without a formal declaration of war), the AG opinion is a marker that the bill probably will not survive litigation. If the goal is operational (preventing actual deployment), federal preemption is a serious obstacle.

If you are a Tennessee National Guard member or family

The bill would not, in practice, prevent your federal deployment if it became law. Federal law authorizes the call-up, and the Supremacy Clause makes that authorization superior to a state law that conflicts. If you are facing deployment, the federal authorization controls.

If you are a constitutional law attorney

The AG cites Perpich, the Selective Draft Law Cases, and Cox v. Wood for the proposition that Clause 15 is "supplementary" rather than a limit on the broader Article I, § 8 powers. Maryland ex rel. Levin v. United States identifies the National Guard as the "modern militia." Houston v. Moore (1820) is the early Supreme Court case recognizing concurrent state-federal militia control with state yielding to superior federal authority. The conflict-preemption framework comes from Lorillard Tobacco, Gade, Fidelity Federal, and Tennessee's own LeTellier and Swift v. Campbell.

If you are studying state efforts to constrain federal military deployment

Several states have considered similar "Defend the Guard" or "Defend Our Guard" legislation. The AG's analysis is consistent with how legal scholars and most state AGs have evaluated the question: the Supremacy Clause and federal military authority are formidable barriers. The Compact for the Defense of the Bill of Rights and similar interstate compact mechanisms have been suggested but face the same federal preemption issue.

If you are a Tennessee governor or legal counsel

Federal law constrains your consent authority on Guard deployments. Section 12301(b) and (d) provide governor consent in some circumstances, but subsection (f) bars withholding consent based on objection to "the location, purpose, type, or schedule of such active duty" outside the United States, its territories, and its possessions. So even where federal law requires gubernatorial consent, your discretion is narrow.

Common questions

Q: Could the bill be saved by limiting it to in-state deployment?
A: The bill already excepts Title 32 "defense support of civil authority missions within the United States and United States territories." The AG's preemption concern is about overseas combat deployments. The federal interest is strongest where the Guard is operating in foreign deployments under federal authority.

Q: What's the difference between Title 10 and Title 32 deployments?
A: Title 10 deployments are full federal active duty (the National Guard of the United States); Title 32 deployments are federal-funded but state-controlled missions (still under the state's National Guard for command). The bill leaves Title 32 alone; the conflict is over Title 10.

Q: Has any state's similar legislation succeeded?
A: As of the date of the opinion, no state law of this type has been adopted and survived federal challenge. Several legislatures have considered similar bills; most have not passed them, in part because of preemption concerns flagged by AGs and legal services offices.

Q: What about the original Anti-Federalist concerns about federal control of the militia?
A: Those concerns are real historically, but the Supreme Court has consistently recognized federal supremacy in military affairs since the early Republic (Houston v. Moore, 1820). Modern doctrine (Perpich, Selective Draft Law Cases, Cox v. Wood) is settled.

Q: Could a state require gubernatorial consent for federal deployments?
A: Federal law already provides for gubernatorial consent in defined circumstances (10 U.S.C. § 12301(b), (d)) but limits when consent can be withheld (subsection (f)). A state law expanding the consent requirement beyond what federal law allows would face the same preemption analysis.

Q: What about the Compact for the Defense of the Bill of Rights or interstate compacts?
A: An interstate compact requires congressional consent under the Compact Clause and cannot displace federal law in any event.

Q: Is the War Powers Resolution itself constitutional?
A: Its constitutionality has been questioned over the decades. The AG notes this in footnote 9. But it remains "controlling federal law" until repealed or invalidated by the Supreme Court.

Background and statutory framework

The U.S. Constitution divides war and military powers between Congress and the President. Article I, § 8 gives Congress power to provide for the common defense (cl. 1), declare war (cl. 11), raise and support armies (cl. 12), make rules for the regulation of the armed forces (cl. 14), call forth the militia (cl. 15), and organize, arm, and discipline the militia (cl. 16). Article II, § 2 makes the President Commander-in-Chief.

The Militia Clauses (cls. 15 and 16) were the source of debate at the Founding, but the Supreme Court has long held they "supplement" rather than "constrain" Congress's broader military powers. Perpich v. Department of Defense, 496 U.S. 334, 350 (1990); Selective Draft Law Cases, 245 U.S. 366, 375, 377, 381-84 (1918); Cox v. Wood, 247 U.S. 3, 6 (1918).

The modern National Guard is a dual-status creation. National Guard members enlist simultaneously in the state Guard and the National Guard of the United States. 10 U.S.C. § 246; Perpich, 496 U.S. at 345-46. When called to federal service, the member is relieved of state status for the period of federal service. Perpich, 496 U.S. at 346, 348.

Federal authority to call up Guard members is in 10 U.S.C. § 12301. Subsection (a) authorizes order to active reserve duty without governor consent "[i]n time of war or of national emergency declared by Congress, or when otherwise authorized by law." Subsections (b) and (d) provide gubernatorial consent paths; subsection (f) limits the consent authority for active duty outside the United States and its territories.

The War Powers Resolution, 50 U.S.C. §§ 1541-1550, structures presidential use of force. Section 1543(a) requires presidential reporting within 48 hours of committing forces. Section 1544(b) limits forces in combat to 60 days plus a 30-day withdrawal period unless Congress "declared war or has enacted a specific authorization for use of military force." Post-9/11 AUMFs (Pub. L. No. 107-40 (2001) and Pub. L. No. 107-243 (2002)) are the controlling examples of authorization without formal declaration.

The Supremacy Clause (Art. VI, cl. 2) preempts conflicting state law. Conflict preemption arises when "compliance with both federal and state regulations is a physical impossibility" or when state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Lorillard Tobacco, Gade, Fidelity Federal, LeTellier, Swift v. Campbell.

House Bill 1609 would block release of Tennessee Guard members into "active duty combat" except after a formal declaration of war or a Clause 15 call-up. Federal law allows release in additional circumstances (national emergency declared by Congress, AUMFs, presidential authority under the War Powers Resolution within statutory limits). The state restriction on those federally authorized circumstances is a textbook conflict preemption problem.

Citations

Constitutional and federal statutes:
- U.S. Const. art. I, § 8, cls. 1, 11-16, 18
- U.S. Const. art. II, § 2, cl. 1
- U.S. Const. art. VI, cl. 2
- 10 U.S.C. § 246; § 12301(a), (b), (d), (f)
- 50 U.S.C. §§ 1541-1550 (War Powers Resolution); § 1543(a); § 1544(b)
- Pub. L. No. 107-40, 115 Stat. 224 (2001 AUMF)
- Pub. L. No. 107-243, 116 Stat. 1498 (2002 Iraq AUMF)

Cases:
- Perpich v. Department of Defense, 496 U.S. 334 (1990), dual enlistment and federal supremacy
- Maryland ex rel. Levin v. United States, 381 U.S. 41 (1965), Guard as modern militia
- Selective Draft Law Cases, 245 U.S. 366 (1918)
- Cox v. Wood, 247 U.S. 3 (1918)
- Houston v. Moore, 18 U.S. 1 (1820), concurrent state-federal militia control
- Lorillard Tobacco Co. v. Reilly, 533 U.S. 525 (2001), preemption framework
- Gade v. National Solid Wastes Management Ass'n, 505 U.S. 88 (1992)
- Fidelity Fed. Sav. and Loan Ass'n v. de la Cuesta, 458 U.S. 141 (1982)
- LeTellier v. LeTellier, 40 S.W.3d 490 (Tenn. 2001)
- Swift v. Campbell, 159 S.W.3d 565 (Tenn. Ct. App. 2004)

Office of Legal Counsel opinions:
- Proposed Deployment of United States Armed Forces into Bosnia, 19 Op. Off. Legal Counsel 327 (1995)
- Deployment of United States Armed Forces into Haiti, 18 Op. Off. Legal Counsel 173 (1994)

Scholarly:
- Bryce G. Poole, The Constitutionality of Targeted Killing, 34 Regent U. L. Rev. 69 (2021-22)
- Michael D. Ramsey, Textualism and War Powers, 69 U. Chi. L. Rev. 1543 (2002)
- William J. Rich, 3 Modern Constitutional Law § 38:33 (3d ed. 2023)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2024/op24-001.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
January 19, 2024
Opinion No. 24-001 (revised)

Constitutionality of Proposed Legislation Limiting the Release of Tennessee National Guard into Active-Duty Combat

Question

Is House Bill 1609 of the 113th Tennessee General Assembly, 2nd Session (2024) constitutional?

Opinion

House Bill 1609 is constitutionally suspect under the Supremacy Clause of the United States Constitution.

ANALYSIS

House Bill 1609 provides that

[t]he Tennessee national guard or a member of the national guard must not be released from military service of this state into "active duty combat" unless the United States congress has passed an "official declaration of war" or has taken an official action pursuant to the United States Constitution, Article I, § 8, Clause 15, to explicitly call forth the Tennessee national guard or a member of the national guard for the enumerated purposes of executing the laws of the union, repelling an invasion, or suppressing an insurrection.

But House Bill 1609 expressly "does not limit or prohibit the governor from consenting to the deployment of a Tennessee national guard member under [Title 32 of the United States Code]" for "defense support of civil authority missions within the United States and United States territories."

For the reasons set forth below, House Bill 1609 is vulnerable to a legal challenge under the Supremacy Clause of the U.S. Constitution.

The Supremacy Clause gives Congress the power to preempt state law. It provides that the U.S. "Constitution, and the laws of the United States which shall be made in pursuance thereof . . . shall be the supreme law of the land." U.S. Const., art. VI, cl. 2. Since the U.S. Constitution and the laws made by Congress are "supreme" throughout the country, state law may be preempted by federal law when a conflict exists between federal and state law. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 541 (2001); Gade v. National Solid Wastes Management Ass'n, 505 U.S. 88, 98 (1992); LeTellier v. LeTellier, 40 S.W.3d 490, 497 (Tenn. 2001). Such conflict preemption arises when compliance with both federal law and state law is impossible or when state law presents an obstacle to the accomplishment of the full purposes and objectives of Congress. Fidelity Fed. Sav. and Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153 (1982); Swift v. Campbell, 159 S.W.3d 565, 577 (Tenn. Ct. App. 2004) (citing Gade, 505 U.S. at 98).

The Constitution vests Congress with extensive power over the armed forces of this country. See U.S. Const., art. I, § 8, cls. 1, 11-16. Congress has the power to "provide for the common defense," id. cl. 1, "declare war," id. cl. 11, "raise and support armies," id. cl. 12, "make rules for the government and regulation of the land and naval forces," id. cl. 14, and "make all laws which shall be necessary and proper for carrying into execution the foregoing powers," id. cl. 18. Congress also has the power

[t]o provide for calling forth militia to execute the laws of the Union, suppress insurrections and repel invasions; [and]

[t]o provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by congress.

Id. cls. 15-16 (often referred to as the "Militia Clauses").

The "modern militia reserved to the States by Art. I, § 8 cl[s]. 15, 16 of the Constitution" is "[t]he National Guard." Maryland ex rel. Levin v. United States, 381 U.S. 41, 46 (1965), vacated on other grounds, 382 U.S. 159 (1965). As the Supreme Court has explained, a series of Acts produced our current National Guard system which consists of "two overlapping but distinct organizations . . . —the National Guard of the various states and the National Guard of the United States." Perpich v. Department of Defense, 496 U.S. 334, 345 (1990) (internal quotation marks omitted). All persons who enlist in a state National Guard unit simultaneously enlist in the National Guard of the United States. Id. Under this system, state guardsmen are both members of (1) the "organized militia" for federal-law purposes and (2) a reserve component of the armed forces of the United States. Id. at 337 n. 1, 345-46, 347 n. 19; 10 U.S.C. § 246. When a member of the Guard is ordered to active duty in the federal service, he or she is thereby relieved of his or her status in the state Guard for the entire period of federal service. Perpich, 496 U.S. at 346. Upon being relieved from active federal service, the individual reverts to National Guard status. Id. at 348.

Significant here, the Supreme Court has held that the Militia Clauses do not constrain the powers of Congress "to provide for the common Defence," to "raise and support Armies," to "make Rules for the Government and Regulation of the land and naval Forces," or to enact such laws as "shall be necessary and proper" for executing those powers. Perpich, 496 U.S. at 349 (quoting Selective Draft Law Cases, 245 U.S. 366, 375, 377, 381-84 (1918)); see Cox v. Wood, 247 U.S. 3, 6 (1918). The power to call forth the militia for the three enumerated purposes of "execut[ing] the laws of the Union, suppress[ing] insurrections, and repel[ling] invasions" in Clause 15 merely "supplement[s]" the broader power to raise armies and provide for the common defense; it does not limit those powers. Perpich, 496 U.S. at 350. And Clause 16 "enhances" federal power by authorizing Congress to provide for "organizing, arming and disciplining the Militia" and "governing such part of the militia as may be employed in the service of the United States." Id. While "the Authority of training the Militia" is reserved to the States respectively, the States are, in turn, required to exercise that training authority "according to the discipline prescribed by Congress." Id.

In sum, the Supreme Court's interpretation of the Militia Clauses "recognizes the supremacy of federal power in the area of military affairs." Id. at 351. Accordingly, state law is preempted when it conflicts with federal legislation enacted by Congress in conformance with its power over the country's armed forces. See Houston v. Moore, 18 U.S. 1, 8-9 (1820).

House Bill 1609 conflicts with—and is therefore preempted by—federal legislation that authorizes active reserve duty for the National Guard without the consent of the governor of the State concerned "[i]n time of war or of national emergency declared by Congress, or when otherwise authorized by law." 10 U.S.C. § 12301(a) (emphasis added).

House Bill 1609 allows the Tennessee National Guard to be released from military service of this State into "active duty combat" in only two instances: (1) when Congress has "passed an official declaration of war" pursuant to Article I, Section 8, Clause 11 of the U.S. Constitution or (2) when Congress has taken an official action pursuant to Article I, Section 8, Clause 15 of the U.S. Constitution to explicitly call forth the Tennessee national guard or a member of the national guard for one of the three enumerated purposes in that clause.

But under federal law, Congress has the power to call up the National Guard in more than just these two instances. As explained above, Congress's power to call forth the National Guard for any of three purposes in Article I, Section 8, Clause 15 is merely a "supplement[ary]" power. Perpich, 496 U.S. at 350. Clause 15 does not constrain the "broader [congressional] power to raise armies and provide for the common defense." Id. Thus, House Bill 1609 would effectively prohibit the release of the Tennessee National Guard into "active duty combat" when Congress summoned the Guard for one of these broader purposes unless Congress "passed an official declaration of war" pursuant to Article I, Section 8, Clause 11.

This proposed state prohibition is constitutionally problematic. It would conflict with federal law and would thus be subject to conflict preemption under the Supremacy Clause. To begin with, the meaning of "war" in Article I, Section 8, Clause 11 is unsettled. While scholars have debated its meaning and offered varying definitions, the term has not been defined by the Supreme Court. Thus, there is no assurance that the three services described in the definition of "active duty combat" in House Bill 1609 would always rise to the level of "war." See Proposed Deployment of United States Armed Forces into Bosnia, 19 Op. Off. Legal Counsel 327, 333 (1995); Deployment of United States Armed Forces into Haiti, 18 Op. Off. Legal Counsel 173, 174 n. 1, 178-79 & n. 10 (1994). In these instances, withholding the release of the Tennessee National Guard because Congress has not "passed an official declaration of war" would not be permissible.

And even when the services described in the definition of "active duty combat" in House Bill 1609 constitute engagements in "war" or are otherwise determined to constitute ones involving military force, requiring Congress to "pass[] an official declaration of war" before the Tennessee National Guard could be released would contravene federal law. "From the Administration of President John Adams to the present," Congress has recognized the president's role as Commander-in-Chief of the military and passed legislation authorizing the use of military force by the president without a formal declaration of war. Bryce G. Poole, The Constitutionality of Targeted Killing, 34 Regent U. L. Rev. 69, 79 (2021-2022).

Currently, the "War Powers Resolution," 50 U.S.C. §§ 1541-1550, authorizes the president to use military force prior to a formal declaration of war by Congress—or without a formal declaration of war by Congress when the president obtains congressional authorization for use of military force. Specifically, the War Powers Resolution requires the president to inform Congress within 48 hours of committing armed forces to military action, see 50 U.S.C. § 1543(a), and prohibits armed forces from remaining in action more than 60 days, subject to a 30-day withdrawal period, unless Congress has "declared war or has enacted a specific authorization for use of military force," id. § 1544(b).

The War Powers Resolution was employed, for instance, when President George W. Bush sought and received two congressional resolutions authorizing the use of force following the events of September 11, 2001. Senate Joint Resolution 23 empowered the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001," see Pub. L. No. 107-40, 115 Stat. 224, 50 U.S.C. § 1541 note, and House Joint Resolution 114 empowered the President "to use the Armed Forces of the United States as he determines to be necessary and appropriate" to "defend the national security of the United States against the continuing threat posed by Iraq" and "enforce all relevant United Nations Security Council resolutions regarding Iraq," see Pub. L. No. 107-243, 116 Stat. 1498, 50 U.S.C. § 1541 note. In short, President Bush was authorized by law to use military force without a declaration of war by Congress.

In sum, while the constitutionality of the War Powers Resolution has been questioned, it remains controlling federal law. Accordingly, House Bill 1609's requirement that Congress must "pass[] an official declaration of war" before the Tennessee National Guard can be released from military service of this State into "active duty combat" conflicts with federal law. Under the War Powers Resolution, Congress may authorize the president to use military force without a declaration of war, and even when Congress may decide to make a declaration of war, the War Powers Resolution allows the president to use military force before any such declaration is made.

JONATHAN SKRMETTI
Attorney General and Reporter

J. MATTHEW RICE
Solicitor General

LAURA T. KIDWELL
Assistant Solicitor General

Requested by:
The Honorable Rusty Crowe
State Senator
425 Rep. John Lewis Way N.
Suite 720 Cordell Hull Bldg.
Nashville, Tennessee 37243

The Honorable Jay D. Reedy
State Representative
425 Rep. John Lewis Way N.
Suite 402 Cordell Hull Bldg.
Nashville, Tennessee 37243