Who should command the National Guard? The National Guard has traditionally been under the control of the states. Section 1076 of the 2007 Defense Authorization Act change that, concerning many.

• Author: Boulard, Garry
• Position: National Defense Authorization Act of 2007 - Cover story

When Washington Representative Larry Seaquist learned of a provision included in the National Defense Authorization Act of 2007 enhancing the president's authority to command the National Guard for domestic purposes, he was instantly concerned.

A former warship captain for the U.S. Navy, Seaquist likes the way presidents have been granted authorization to use the Guard in domestic emergencies in the past: through the consent of the governors of the states where the Guard resides.

"Fundamentally, this is both a states' rights and constitutional question that is steeped in our nation's history," says Seaquist. General George Washington commanded two kinds of forces during the Revolutionary War. "One was the Continental Army supplied to him by the Continental Congress and the other was made up of the state militias furnished by the colonies. That's why the framers made a point of acknowledging in the constitution that there is both a federal military and a state militia," Seaquist says. "They knew from the experience of that war that there is a difference between those two forces and they wanted to make certain that the state militias would remain under the independent control of the governors of our states."

But the provision in the defense authorization legislation, known as section 1076, expanding the president's use of the Guard, appeared to run so contrary to that tradition that Seaquist felt compelled to take action. In February, he introduced a resolution in the Washington House calling for the de-federalization of the Washington Air and Army National Guard. The resolution additionally stated that the responsiveness of the Guard in emergencies depends on its existence as a state entity and that federalization would "undermine emergency effectiveness in the state."

"I just thought that, from the state level, we needed to make our voices heard," says Seaquist of his resolution.

In Hawaii, Representative K. Mark Takai, a captain in the Army National Guard, was similarly upset, and supported a resolution condemning the defense authorization act that ultimately failed to win final passage.

"Our governors are the commanders-in-chief of our Guard units throughout the nation, except when called to active duty due to wartime missions," Takai would later explain. "The president should not be able to reach in and grab our state militias without the approval of our governors."

Section 1076, which interestingly united far left and far right bloggers concerned about the possible big government reach of the provision, has had few public defenders. But military expert David Segal believes the intent of the provision was a result of the command difficulties stemming from Hurricane Katrina.

"Because such a significant segment of the Louisiana National Guard was in Iraq, along with a large amount of their equipment, Guard troops had to be called in from other states. The governor of Louisiana had to make a call to the governor of, say, Wyoming, asking to basically borrow that state's troops," says Segal, who is the director of the Center for Research on Military Organization at the University of Maryland.

"By giving the president this expanded authority," Segal says, "he himself could send the Guard from anywhere to the place where the disaster is, without the states having to go through the formalities themselves. In theory, this could be more efficient."

...