Governors want to keep Guard control
Bill would allow Bush to federalize troops

By J.L. MILLER, The News Journal
Posted Monday, August 21, 2006

When the governor of hurricane-stricken Mississippi asked Delaware for help last year, Gov. Ruth Ann Minner was able to dispatch Delaware Air National Guard police to the Magnolia State within about 20 hours.

The decision was hers -- and she wants to keep it that way to make sure she can weigh such domestic emergency help requests against the potential need to have state Guard resources available here.
She doesn't want to leave such calls to federal officials -- as a bill already passed by the U.S. House would do.

"The governor should always have the opportunity to serve as commander in chief of our Delaware National Guard," Minner said in an interview. "We should keep that right to approve any action."

That's why she joined with all 50 governors and the governor of Puerto Rico to oppose a provision tucked into the National Defense Authorization Act that would allow the president to federalize a state's National Guard without a governor's consent in the event of a disaster such as Hurricane Katrina.

The president already can call up the Guard to supplement the active-duty military, but needs a governor's consent to call on a state's troops for natural or other disasters.

"I cannot imagine any governor turning down the president where there is a real need," Minner said.
Still, the governors, in a letter to House and Senate leaders, called the provision "an unprecedented shift in authority" that would "usurp governors' authority over the National Guard during emergencies."
The governor's authority dates back to the earliest days of statehood. The Delaware Constitution states that the governor "shall be commander-in-chief of the army and navy of this State, and of the militia, except when they shall be called into the service of the United States."

Maj. Gen. Frank Vavala, adjutant general of the Delaware Guard, stood up for the more than 200 years of history behind the governor's authority as commander in chief.

"This is counter to the [U.S.] Constitution and the constitutional militia clause, which of course gives the governor the authority over the National Guard," Vavala said.

Vavala said the Delaware Guard's swift help for Mississippi -- in contrast to the initially anemic response by federal authorities -- shows that the system works well.

"We were able to support our colleagues in Mississippi and Louisiana and did a magnificent job in doing so," Vavala said. "I think our founding fathers had it right: If it ain't broken, don't fix it."

Delaware State University political science professor Samuel B. Hoff said the squabble is part of the long-running tug of war for power between the states and the federal government.

"The issue also comes up in the nature of presidential power. It's a federalism issue," Hoff said."Looking at it from the governors' perspective, it's almost like the troops are on loan to the state rather than what we've seen historically in American history, which is the other way around," Hoff said."Some look at it as an offshoot of the president's commander-in-chief powers. I think critics have a point, in a sense, that instead of mixing it into a bill and kind of sneaking it through, there should be more of an open discussion of the president's power to mobilize the Guard at the federal level," he said.

Although the bill passed the House with the National Guard provision intact, it is not part of the Senate version. It will be up to a House-Senate conference committee to hash out the differences and decide whether to include it in the final version.

Rep. Mike Castle, R-Del., himself a former governor, voted for the bill.
"The defense authorization bill is a huge bill which basically is a key bill for the troops, all efforts for the military, and virtually everybody votes for it," Castle said. The measure passed the House 396 to 31.
Castle said he was aware of the provision but said that opposition to it did not surface until after its passage.

"There's probably some rationale for better coordination, but after the bill was passed ... the concern was it went too far in terms of the presidential powers vs. the governors' powers," Castle said.
Castle said he did not believe the provision would make it through the conference committee, and that the language could be modified to provide "a better path between what the presidential powers are or what the governors' powers are."

Castle's vote provided an opening for Democratic congressional hopeful Dennis Spivack, who accused Castle of flip-flopping on the issue.
"Governors from both parties adamantly oppose this, and still he sided with the president," Spivack said in a statement issued last week. "Now, after realizing how wrong he was, Mike is frantically backtracking."

Castle called the statement by Spivack, who faces a primary race with Karen Hartley-Nagle, "a huge stretch of the facts of what we're dealing with here."
"We had looked at it before [the vote] and we tried to get information on it. Having seen no opposition I voted for the bill," Castle said.

Contact J.L. Miller at 678-4271 or jlmiller@delawareonline.com.