Proposed Memorial to Congress regarding Deployment of Oregon's National Guard

House Joint Memorial 5
JOINT MEMORIAL To the President of the United States and the Senate and the House of Representatives of the United States of America, in Congress assembled:

We, your memorialists, the Seventy-fifth Legislative Assembly of the State of Oregon, in legislative session assembled, respectfully represent as follows:

Whereas under clause 15, section 8, Article I of the United States Constitution, Congress may call forth the militia to execute the laws of the union, suppress insurrections and repel invasions; and
Whereas since 1933, federal law has provided that persons enlisting in a state National Guard unit simultaneously enlist in the National Guard of the United States, a part of the United States Army; and

Whereas state National Guard enlistees retain their status as state National Guard members unless and until ordered to federal active duty and then revert to state status upon being relieved from federal service; and

Whereas in 1986, Congress passed and the President signed the ' Montgomery Amendment,' which provides that a Governor cannot withhold consent with regard to federal active duty outside the United States because of any objection to the location, purpose, type or schedule of such duty; and

Whereas under the United States Constitution, each state's National Guard unit is controlled by the Governor in time of peace, but can be called up for federal duty by the President, provided that the President is acting pursuant to the Constitution and laws of the United States; and

Whereas the War Powers Act of 1973 specifically limits the power of the President to wage war without the approval of Congress; and

*Whereas thousands of Oregonians, through petitions, letters, electronic mail, phone calls and personal visits to the members of the Seventy-fifth Legislative Assembly of the State of Oregon, have raised questions about the authority of the federal government to deploy the Oregon National Guard to Iraq; and

*Whereas the Iraq-United States Status of Forces Agreement is neither a treaty nor an Act of Congress nor an Authorization for the Use of Military Force as required by the War Powers Act of 1973; and

*Whereas reviewing the validity of a federal deployment order does not conflict with the restrictions on objecting to the 'location, purpose, type, or schedule' of duty imposed by the Montgomery Amendment; and

*Whereas the men and women of the Oregon National Guard should not be deployed overseas when there is no authorization pursuant to a valid congressional enactment allowing such a deployment, consistent with the United States Constitution; now, therefore,

Be It Resolved by the Legislative Assembly of the State of Oregon:

*(1) The Congress of the United States is respectfully notified that the Seventy-fifth Legislative Assembly of the State of Oregon believes that it is within the powers and duties of the Governor of Oregon to review for its legality each order federalizing the Oregon National Guard and to ensure that the Oregon National Guard enters federal service only after a declaration of war or a valid authorization enacted by the Congress of the United States.

(2) A copy of this memorial shall be sent to the President of the United States, to the Senate Majority Leader, to the Speaker of the House of Representatives and to each member of the Oregon Congressional Delegation.

*asterisks denote text proposed on June 2, 2009 to modify HJM 5 as introduced.