Effort to discharge Defend the Guard Act fails again


CHARLESTON — Once again, an attempt to move a bill prohibiting use of West Virginia’s civilian soldiers and airmen in combat, except when Congress gives approval, failed in the House of Delegates.

Del. Pat McGeehan, R-Hancock, made a motion Friday morning to discharge House Bill 2138, the Defend the Guard Act, from the House Veterans Affairs and Homeland Security Committee where the bill has sat since Feb. 10. The motion would have sent the bill directly to the House Judiciary Committee. The motion failed 26-71 with bipartisan opposition.

A discharge motion, if approved by a majority of the House, moves a bill from the committee it is in to the House floor where it can be passed after three separate days of readings.

HB 2138 would prohibit members of the West Virginia National Guard from participating in active combat duty unless an act of war has been passed by Congress or if Congress has specifically called for use of the National Guard within its constitutional powers.

McGeehan, who served as a captain and intelligence officer in the U.S. Air Force, has introduced a version of the act every year for the last six years.

“This legislation would effectively … prohibit our state’s National Guard units from being deployed overseas into foreign nations, into combat zones, without a condition of a formal declaration of war passed by the U.S. Congress as the U.S. Constitution would mandate,” McGeehan said. “For far too long, the federal government has essentially abdicated its duty, especially the legislative branch.”

Last year, an attempt to discharge the bill from the House Veterans Affairs and Homeland Security Committee failed on a 50-50 vote. That committee later approved the bill in a 15-7 vote.

The bill’s next stop was the House Judiciary Committee, though a motion to skip the Judiciary Committee and go directly to the House floor failed 37-61, requiring a two-thirds vote of members.

The Judiciary Committee rejected the bill in a 4-21 vote.

Debate on the discharge motion went on for 45 minutes. While some said they were unsure of their support for the bill, others said they supported the discharge motion to allow the bill to be debated.

“I don’t know where I’d come out on this bill … but I know that the idea that we should foreclose a debate on this very issue is worrying to me,’ said House Judiciary Committee Minority chairman Chad Lovejoy, D-Cabell.

“The federal government’s big, the federal government does a lot of things and sends a lot of money to West Virginia, but we can’t be afraid to have the debate on the federal issue,” said House Government Organization Committee Chairman Brandon Steele, R-Raleigh. “I think we have to engage our federal government. I really do. I hope all of you will think about that as we have these debates going forward in the future.”

Supporters of the Defend the Guard Act — such as the 10th Amendment Center and the ACLU — argue that the way military deployments of the National Guard are approved violate the 10th Amendment of the U.S. Constitution, stating that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Opponents of the Defend the Guard Act believe the bill interferes with the U.S. Constitution, which deals with the powers of Congress including the “organizing, arming, and disciplining” of militias.

Article I of the Constitution empowers Congress to call out the militia to “execute the laws of the Union, suppress Insurrections and repel invasions.” A section of U.S. Code states that governors can’t object to where a president sends the National Guard or the kinds of missions the guard performs while on active duty.

Opponents also raise the possibility of the state losing federal funding for the West Virginia National Guard. According to the 2018 report, the West Virginia National Guard had a total direct economic impact of $361 million and indirect impact of $547.5 million, receiving $25 in federal dollars for every $1 of state funding.

House Veterans Affairs Committee Chairman Roy Cooper, R-Summer, said he discussed the bill with Republican and Democratic members of the committee but found no appetite for the bill. He also said he personally did not support the bill and that it was too late to start debating the bill now.

“I didn’t even consider bringing it out, which was my prerogative,” Cooper said. “If there’s enough of us in here to support (McGeehan’s) motion, that motion should have been made three weeks ago when we weren’t tangled up in the budget, into the governor’s income tax proposal and into every other major piece of legislation.

According to the West Virginia National Guard, there are more 60 units and detachments, with more than 6,400 soldiers and airmen.

The National Guard has been on the front lines of the COVID-19 pandemic since Gov. Jim Justice issued a state of preparedness more than one year ago and a state of emergency. More than 550 members of the guard are currently on duty through Sept. 30

More than 700 soldiers and airmen have taken part in thousands of pandemic-related missions at the height of operations, distributing vaccines and food, assisting with COVID-19 testing events, sanitizing buildings, and manufacturing personal protective equipment.

According to McGeehan, 31 states have committed to passing similar bills, with 21 states with legislation already introduced.

“If we don’t have an objective standard — like a declaration of war anymore — then the truth lost. It becomes arbitrary,” McGeehan said. “We deserve to reclaim some sort of objective standard before we send our men and women into harm’s way overseas.”

(Adams can be contacted at sadams@newsandsentinel.com)


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