Senate Bill 2643

AN ACT TO REQUIRE THE GOVERNOR TO WITHHOLD OR WITHDRAW APPROVAL OF THE TRANSFER OF THE MISSISSIPPI NATIONAL GUARD TO FEDERAL CONTROL IN THE ABSENCE OF CERTAIN EVENTS; TO REQUIRE THE GOVERNOR TO EXAMINE EVERY FEDERAL ORDER THAT PLACES THE NATIONAL GUARD ON FEDERAL ACTIVE DUTY TO DETERMINE WHETHER THE ORDER IS CONSTITUTIONAL; TO REQUIRE THE GOVERNOR TO SUBMIT A REPORT TO THE LEGISLATURE THAT SUMMARIZES HIS REVIEW OF SUCH FEDERAL ORDERS; AND FOR RELATED PURPOSES.

WHEREAS, under the Constitution of the United States, each state's National Guard is a defensive force controlled by the Governor, but can be called up for federal duty by the federal government, provided that said duty is pursuant to the Constitution of the United States; and

WHEREAS, Article I, Section 8, Clause 15 of the Constitution of the United States delegates to the Congress the power to provide for "calling forth the militia" in three situations only: (1) to execute the laws of the union, (2) to suppress insurrections, and (3) to repel invasions; and

WHEREAS, James Monroe, member of the Virginia Ratifying Convention, 7th U.S. Secretary of State, and 5th President of the United States, wrote in 1815, "Congress shall have power to provide for calling forth the militia to execute the laws of the Union; what laws? All laws which may be constitutionally made"; and

WHEREAS, the Tenth Amendment to the Constitution of the United States reads as follows: "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"; and

WHEREAS, the Tenth Amendment defines the total scope of federal power as being that which has been delegated by the people of the several states to the federal government in the Constitution of the United States; and

WHEREAS, Daniel Webster, in his 1814 speech on the floor of Congress, said, "The operation of measures thus unconstitutional and illegal ought to be prevented by a resort to other measures which are both constitutional and legal. It will be the solemn duty of the state governments to protect their own authority over their own militia, and to interpose between their citizens and arbitrary power. These are among the objects for which the State governments exist"; NOW, THEREFORE,

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. The Governor shall withhold or withdraw approval of the transfer of the Mississippi National Guard to federal control in the absence of:

(a) A military invasion of the United States, or

(b) An insurrection, or

(c) A calling forth of the Mississippi National Guard by the federal government in a manner provided for by Congress to execute the Laws of the Union, provided that said laws were made in pursuance of the delegated powers in the Constitution of the United States.

SECTION 2. The Governor shall examine every federal order, present and future, that places the Mississippi National Guard on federal active duty to determine whether the order is Constitutional according to Article I, Section 8, Clause 15 of the Constitution of the United States. If the Governor determines that the order is not constitutional, he shall take all appropriate action to prevent the national guard from being placed or kept on federal active duty.

SECTION 3. The Governor shall submit a report to the Legislature that summarizes his review of every order that placed or places the Mississippi National Guard on federal active duty, and any action he takes in response to that review, within thirty (30) days after his review is complete.

SECTION 4. This act shall take effect and be in force from and after its passage.