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                                                      PRINTER'S NO. 3494



No. 2402 Session of 2008

           YOUNGBLOOD, MARCH 27, 2008

           PREPAREDNESS, MARCH 27, 2008

                                     AN ACT

     1  Amending Title 51 (Military Affairs) of the Pennsylvania
     2     Consolidated Statutes, relating to the withdrawal of
     3     Pennsylvania National Guard military forces from Iraq and
     4     Federal deployment of the National Guard.

     5     The General Assembly finds and declares that:
     6         (1)  Under clause 15 of section 8 of Article I of the
     7     Constitution of the United States, Congress may call forth
     8     the militia to execute the laws of the union, suppress
     9     insurrections and repel invasions.
    10         (2)  Since 1933, Federal law has provided that persons
    11     enlisting in a state National Guard unit simultaneously
    12     enlist in the Army National Guard. The enlistees retain their
    13     status as state guard members unless and until ordered to
    14     active Federal duty and then revert to state status when
    15     relieved from Federal service.
    16         (3)  In 1986, Congress and the President of the United
    17     States enacted the Montgomery Amendment, which provides that

     1     a governor cannot withhold consent with regard to active duty
     2     outside the United States because of any objection to the
     3     location, purpose, type or schedule of such duty.
     4         (4)  Under the Constitution of the United States, each
     5     state's National Guard unit is controlled by the Governor but
     6     can be called up for Federal duty by the President, provided
     7     that the President is acting pursuant to the Constitution of
     8     the United States and the laws of the United States.
     9         (5)  The War Powers Resolution (Public Law 93-148, 50
    10     U.S.C. § 1541 et seq.) specifically limits the power of the
    11     President to wage war without the approval of Congress.
    12         (6)  In October 2002, a joint resolution of Congress
    13     authorized military force under the Authorization for the Use
    14     of Military Force Against Iraq Resolution of 2002 (Public Law
    15     107-243, 116 Stat. 1498) (AUMF), a law adopted in response to
    16     a presidential request under the War Powers Resolution. The
    17     AUMF stated in part that the President is authorized to use
    18     the armed forces of the United States as he determines to be
    19     necessary and appropriate in order to:
    20             (i)  defend the national security of the United
    21         States against the continuing threat posed by Iraq; and
    22             (ii)  enforce all relevant United Nations Security
    23         Council resolutions regarding Iraq.
    24         (7)  The AUMF contained neither a termination date, nor a
    25     process or procedure to determine when the authorization
    26     should terminate.
    27         (8)  The armed forces, including members of the
    28     Pennsylvania National Guard and guard members from other
    29     states, have long since addressed the purposes recited under
    30     the AUMF, Iraq does not pose a continuing threat to the
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     1     national security of the United States and there is no extant
     2     United Nations Security Council resolution to be implemented.
     3         (9)  The President may not maintain armed forces, in
     4     particular members of the Pennsylvania National Guard, in
     5     Iraq other than for the purposes set forth by Congress in the
     6     AUMF. Without a specific date for withdrawal of the armed
     7     forces from Iraq in the AUMF or a method or formula for
     8     determining the time for withdrawal and in the absence of
     9     congressional legislation curing these omissions, the
    10     President is required to order the withdrawal of troops
    11     within a reasonable time and in a reasonable manner. The
    12     President has taken no such action.
    13         (10)  Other than the AUMF, there is no authority under
    14     the Constitution of the United States or the laws of the
    15     United States for the continued presence of Pennsylvania
    16     National Guard members in Iraq.
    17         (11)  The maintenance of Pennsylvania National Guard
    18     members in Iraq beyond the time and scope set forth in the
    19     AUMF has resulted in significant harm to guard members and
    20     their families, including death and injury, loss of time
    21     together and financial hardship.
    22         (12)  Congress should revisit the 1986 Montgomery
    23     Amendment and adopt legislation that restores the powers of
    24     the governors of the several states to withhold consent to
    25     federalization of their National Guards, except where a
    26     declaration of war has been adopted or where the United
    27     States faces attack or invasion and the President has invoked
    28     powers authorized by an act of Congress to address those
    29     circumstances.
    30         (13)  Since the AUMF has expired, the Governor of
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     1     Pennsylvania, as Commander-in-Chief of the Commonwealth,
     2     should take all necessary steps to withdraw all members of
     3     the Pennsylvania National Guard from Iraq, subject only to
     4     conditions of time and manner specifically required to assure
     5     their safety and well-being during removal operations.
     6     The General Assembly of the Commonwealth of Pennsylvania
     7  hereby enacts as follows:
     8     Section 1.  Title 51 of the Pennsylvania Consolidated
     9  Statutes is amended by adding a section to read:
    10  § 2315.1.  Limitation of Pennsylvania National Guard service in
    11             wars not statutorily or constitutionally authorized.
    12     (a)  General rule.--The Pennsylvania National Guard shall be
    13  limited to service on behalf of the Commonwealth, unless called
    14  into Federal service pursuant to a declaration of war or a duly
    15  enacted Federal statute authorizing the use of military force.
    16     (b)  Authorization of Attorney General to appear in court.--
    17  The Attorney General is authorized to appear in any Federal or
    18  State court with jurisdiction over the deployment of the
    19  Pennsylvania National Guard, to defend any decision of the
    20  Governor and Adjutant General with respect to their decision to
    21  deploy or not deploy the Pennsylvania National Guard.
    22     Section 2.  This act shall take effect immediately.

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