Lawmakers threaten that state officials have Constitutional right to refuse future federal orders they deem unconstitutional
CHARLESTON, W.V. — The West Virginia House of Delegates in a resolution Saturday responded to growing public support for President Trump’s efforts to bring about “an end to endless” wars in the Middle East, rebuking Congress for shirking its duty under the U.S. Constitution to declare war before U.S. troops are committed to combat overseas, and threatening that the state may refuse future federal orders to deploy state National Guard units to fight in such wars.
Del. Pat McGeehan, R-Hancock, a U.S. Air Force Academy graduate and Afghanistan war veteran, Monday said that “before approving the Declaration of Independence, our founding fathers first sent several resolutions to King George, believing they should at least try first to convince the British government to stop violating the rights of American colonists.”
“I applaud my House colleagues for taking a similar first step now,” McGeehan said Monday, “urging Congress to stop shirking its war powers duties under the Constitution and threatening that if they don’t, West Virginia has the right in the future to refuse federal orders we judge to be in violation of the Constitution, such as sending our National Guard troops to fight in foreign wars without a Congressional declaration of war.”
McGeehan earlier in the legislative session had attempted to give the same policy the force of law, introducing “Defend the Guard” legislation with bipartisan support to require that West Virginia’s National Guard troops could not be deployed to foreign conflicts unless Congress had first declared war.
McGeehan’s legislation won support from both ends of the political spectrum, including endorsements by the national chairman of Vets for Trump and the West Virginia ACLU. After McGeehan’s motion to bring it to the House floor for immediate action without committee consideration failed on a tie vote, 50-50, the legislation was approved by the House Veterans Affairs Committee in February by a vote of 15-7. It stalled in the House Judiciary Committee, whose members preferred to try communicating the Legislature’s sentiment to Congress first by resolution.
The resulting House Concurrent Resolution 141 was adopted by the full House by voice vote, urging that in the future, President Trump and Congress “take no action to employ military forces of the United States in active duty combat unless and until the U.S. Congress has passed an official declaration of war,” and end the practice of deploying U.S. troops to foreign combat under so-called “blank check” Authorizations of Military Force that have no expiration date or limits on U.S. military activity.
The resolution also urges the President and Congress “to explicitly execute a coherent and effectively resourced national security strategy” and “to end any periods of endless or perpetual armed conflict with no clear conditions of conclusion that risks the lives of our military members.”
McGeehan noted that U.S. troops have been at war in Afghanistan, Iraq, Syria, and multiple other African and Middle Eastern countries for nearly a generation based on an AUMF adopted by Congress nearly two decades ago, immediately following the Islamic terrorist attacks of September 11, 2001, which means that all new members of Congress elected in the two decades since have never cast a vote on whether to initially authorize such military action.
The resolution quoted founding fathers and framers of the U.S. Constitution — former Presidents George Washington, Thomas Jefferson, and James Madison, and former Secretary of the Treasury Alexander Hamilton — who stated that under the Constitution, only Congress has the authority to declare war, and that the framers intended Congress be required to do so before U.S. troops are sent to fight in foreign conflicts.
“In spite of the clear language of the U.S. Constitution vesting the power over war exclusively in the U.S. Congress,” the resolution states, “the U.S. executive branch has unconstitutionally assumed that power while the U.S. Congress has abdicated its Constitutional duty.”
“Although the U.S. Congress has not declared war in over 70 years,” the resolution continued, “the nation has since gone to war repeatedly at the direction of the executive branch and/or acted under perpetual authorizations to use military force passed by Congress empowering the executive branch to engage in unending war, clearly not what the Founding Fathers intended in the Constitution.”
In response to such federal actions, the resolution included what amounts to a threat that in the future, West Virginia officials may refuse to comply with federal orders — such as refusing to allow the state’s National Guard units to be mobilized by the federal government for foreign combat — asserting that “when such unconstitutional actions are taken by the federal government, it is the proper role of the states themselves to take action to remedy such situations, as outlined in the Kentucky and Virginia Resolutions of 1798.”
Those early American resolutions — the first authored by President Thomas Jefferson, author of the Declaration of Independence, and the latter by James Madison, often called “The Father of the Constitution” — were adopted by the Kentucky and Virginia state legislatures, respectively, immediately after the U.S. Constitution was ratified by the newly-formed United States, declaring that states are free under the Constitution to refuse to obey federal laws that state lawmakers judge to be unconstitutional.
West Virginians have a 159-year old history of making good on such threats. The state of West Virginia itself was formed in 1861 when western counties that were then part of the state of Virginia refused to obey legislation adopted by the Virginia legislature to secede from the United States and join the Confederate States of America. The western counties seceded from the state of Virginia instead, after which they were recognized by Congress as a new state.
McGeehan said he believes West Virginians would support the state making good on its threat to refuse federal orders mobilizing state National Guard personnel to overseas war unless Congress has first fulfilled its Constitutional duty to declare war, citing a Politico poll last year which found that 81 percent of those who voted for President Trump in 2016 supported his efforts to withdraw U.S. troops from Afghanistan. A poll two months ago found that 70 percent of all Americans also support U.S. troop withdrawal.
HCR 141 was sponsored by House Assistant Majority Whip John Hardy, R-Berkeley, former U.S. Army military police, and cosponsored by House Veterans Affairs Committee Chairman Tom Bibby, R-Berkeley, retired U.S. Air Force officer and pilot; former House Veterans Affairs Committee chairman Roy Cooper, R-Summers, U.S. Navy veteran; Brandon Steele, R-Raleigh, vice chairman of the House Homeland Security Committee; Marshall Wilson, I-Berkeley, retired U.S. Army officer and member of the American Legion and Veterans of Foreign Wars, and Terri Sypolt, R-Preston, both members of the Veterans Affairs and Homeland Security committees; Larry Kump, R-Berkeley, a member of Sons of the American Legion; and Chris Phillips, R-Barbour.