MT Rep. Lee Deming talks Defend the Guard and Nullification
"The governor should be in charge of the state militia, unless under constitutionally described, prescribed circumstances, and only then, and not for deployment overseas, particularly in combat."
Mr. Deming, the honors civics teacher from high school that introduced me to libertarianism, joined me for today’s podcast.
Since he last appeared on my podcast, Mr. Deming was officially elected as Representative for House District 55, so I brought him on to talk about that and two of the bills he’s planning to introduce in the Montana legislature.
One of those bills is the Defend the Guard Act which will prohibit the Montana Guard to be used in overseas wars without a Declaration of War by the US Congress.
Watch the video in this tweet to learn more:
Below is a rough transcript of the part of the interview where we discuss the Defend the Guard Act and nullification.
LIAM: Where's the bill at? Did you get it introduced, and how are you feeling about it?
REP. LEE DEMING: Well, it's not introduced yet. I sent it to the bill drafters, which is the first step, and, believe it or not, I was on the phone with one of the bill drafters just before I texted [you for this podcast].
One of the jobs of the bill drafters is to anticipate any legal issues, you know, you might run into in the courts. And this particular bill drafter said that it does look like there are some.
You and I've talked about Defend the Guard at length in the past and about where some of the opposition would come. And I think you and I have talked about this case before—Perpich v. Department of Defense—anyway, it had to do with the fact that the governors, there were a couple of governors who did not want to deploy the National Guard training in the eighties in Central America.
And they objected to that. So, apparently, this US Supreme Court case said governors can't. And so I think that's going to be a legal hurdle that we're gonna have to anticipate going in.
I don't personally see that it's fatal to the bill at all, but I do think that that's going to be a source of opposition.
LIAM: Unfortunately, I think, Supreme Court precedent often determines how people want to vote on legislation … I think there is a fear that if you pass legislation and then it goes to the Supreme Court, another precedent will be established that makes it harder for the bill in the future, but often I think you also get the criticism just that the precedent alone is enough reason to resist entertaining the bill in the first place.
And I think those ideas should be resisted. And I think that there is an argument to be had that you should introduce a bill and get it passed and hope for a Supreme Court filled with different justices to reconsider that precedent. And I would hope that a more conservative bench like we currently have would maybe reconsider that precedent.
REP. LEE DEMING: It could, but, you know, those options that you're talking about are good. But, what about this option? Why not look at the Constitution, frankly, the clear language of the Constitution, and say, well, um, yeah, the governors really do have control and should have control over their state militia. And if the National Guard is a state militia, then it can only be federalized with the governor's permission. That makes perfect sense to me.
I don't know why, except the argument that is, you know, “it is in the interest of national security, that we have the National Guard available to the feds,” but under what circumstances are we gonna send 'em over there to fight?
Are we just going to send our Montana National Guard to fight in Ukraine? Well, maybe. And can the governor say, “no, we're not sending Montana National Guard over there?” Not according to most people. Most people say, “well, they're National Guard, they're in the Army, they're in the whatever.”
Well, that isn't the case.
The governor should be in charge of the state militia, unless under constitutionally described, prescribed circumstances, and only then, and not for deployment overseas, particularly in combat.
So, this case that I was telling you about: the governor's objected to training of National Guardsmen in Central America, not combat training. The US Supreme Court said you can't object to that.
LIAM: I'll need to look into that decision. And I think you're absolutely right. We've talked about it in the past regarding the OSHA decision.
We had said at the time that if the Supreme Court had actually upheld the vaccine mandate at the time, according to our reading of the Constitution and just the principles of natural law and liberty in general, the States should even resist that.
So the whole concept that the Supreme Court is the final arbiter should be challenged in itself. And, you know, there will be a lot of legal pushback. And I think a lot of this comes from a positivist perspective where it's like, “well, this is currently what the law is, therefore, it's what it ought to be or we shouldn't push against it or something like that.”
But I think there's value in introducing this just into the Overton Window anyway. Why not extend that conversation and introduce the bill regardless of these constitutional questions? Don't view those constitutional questions as obstacles, but rather as things that should be pushed against.
I think we should start to inject these ideas into the state legislature and Montana. Especially in regards to nullification in general, because I have heard that nullification, there isn't an appetite for it here, but I don't know if that's necessarily the case.
There have been examples of it in the past. The marijuana bill for instance is nullification. The legalization of marijuana is nullification. The legislature also passed legislation that nullified any federal gun control after January 2021.
There are plenty of examples that have been popular in the past, and maybe the use of the language “nullification” is troubling, but the concept is not at all foreign.
REP. LEE DEMING: No. And Montana has, as you have said, a long history of nullification, but they don't use the term, so, it is nullification. There's no question about it. And I think there's an appetite for nullification. Although, I've heard that occasionally, that there's some pushback where legislators who could have nullified decided not to.
And maybe just because they've been taught that the federal government is supreme. Well, I don't buy that. The states created the federal government, not the other way around. And I think the Constitution is pretty clear.