Supporters of a bill that attempts to keep the Vermont National Guard out of foreign military conflicts are struggling to gain traction in Montpelier.
“Defend the Guard” legislation, introduced in the Vermont House of Representatives last year, is part of a nationwide push to give governors more power over state national guards. Vermont’s bill would require Republican Gov. Phil Scott to vet the legality of federal mobilization orders, and to refuse any deployments that didn’t meet constitutional muster.
Isaac Evans-Frantz, the director of a Brattleboro-based organization called Action Corps, said the Vermont Air National Guard’s recent deployments to Venezuela and the Middle East underscore the urgency for the legislation.
“If Congress fails to defend the Constitution, then that falls to the states."Isaac Evans-Frantz, Actoin Corps
“The American people have not consented to this war, and it’s the responsibility of Vermont to defend the Constitution and protect our Vermont National Guard members,” Evans-Frantz said during a press conference Tuesday.
The bill faces a looming legislative deadline, however. And Vergennes Rep. Matt Birong, the Democratic chair of the House Committee on Government Operations and Military Affairs, said it likely won’t clear the crossover hurdle at the end of this week.
Birong said he appreciates the desire to limit the Guard’s involvement in unpopular and potentially unlawful military campaigns. All three members of Vermont’s congressional delegation have called the operations in Venezuela and Iran “illegal” and “unconstitutional,” because President Donald Trump failed to first secure approval from Congress.
But Birong said the proposed legislation is in direct conflict with the federal law that allows a U.S. president to mobilize state guard units. Passing it into law, he said, would invite a costly federal lawsuit that he’s not convinced Vermont would win.
“We’re in a place right now where this state has a lot of limited resources,” Birong said. “This is a very big conversation, so although at times I agree with, ‘Vermont, lead the way,’ I don’t feel like this is a moment to do that.”
Title 10 is the federal code that allows the president to take command of state guard units to suppress an insurrection, repel an invasion or uphold the laws of the United States.
Vermont’s proposed legislation would compel the governor to refuse Title 10 orders deemed to be illegal. Burlington Rep. Bob Hooper, a Democrat who also sits on the House government operations committee, said legislative lawyers have indicated the measure runs afoul of federal law.
“It’s not as if the governor basically has the ability to say, ‘Yeah you can go,’ or, ‘No, you have to stay here,’” Hooper said. “When they get the call, the troops are no longer ours.”
According to Scott’s office, the governor wouldn’t be able to vet the legality of Title 10 orders in any event, because he’s not apprised by the Pentagon of what those orders are. Scott’s spokesperson, Amanda Wheeler, said the governor opposes the Defend the Guard legislation “because we don’t believe it’s constitutional.”
Scott rejected requests from the Pentagon twice last year to voluntarily mobilize the Vermont National Guard in support of domestic immigration and law-enforcement missions.
Evans-Frantz said the legislation at minimum deserves a hearing in the House government operations committee.
“If Congress fails to defend the Constitution, then that falls to the states,” he said.
White River Junction Rep. Esme Cole, a Democrat who supports the bill, said it’s the least lawmakers can do for members of the 158th Fighter Wing who are currently deployed in the Middle East.
“If the president is going to call on our Vermont Guard members to put their lives at risk,” Cole said, “they deserve at the very least the guarantee of required checks and balances to justify this extreme measure.”
