What’s Happening in Oklahoma? Can They Do That?
This week saw an Oklahoma state representative trying to repeal the repeal of Don’t Ask, Don’t Tell at the state level. House Bill 2195, introduced by Rep. Mike Reynolds, would add the following eligibility requirement on those currently serving or who wish to serve in The Sooner state:
No person ineligible to serve in the Armed Forces of the United States pursuant to 10 U.S.C., Section 654 [Don’t Ask, Don’t Tell], and accompanying Department of Defense Regulations implementing and enforcing this provision as in effect on January 1, 2009, shall be eligible to serve in the National Guard.
Essentially, DADT would be back in effect in the Oklahoma National Guard. The introduction of the bill has prompted many to ask the question: Can Oklahoma do that?
The short answer is: No.
A similar bill was actually proposed in 2011 by state Delegate Bob Marshall in Virginia. Rep. Reynolds has decided to take another crack at it, apparently not recognizing why the Virginia bill ultimately died in committee.
The National Guards of the states are substantially controlled by the federal government through the Department of the Army, and are not the independent state militias that Rep. Reynolds imagines them to be. He relies on the U.S. Constitution as the authority to enact such as measure, which reads in relevant part:
Congress shall have Power…To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress… (Article I, Section 8, Clause 16.)
But since the Militia Act of 1903, all state National Guards have been required to conform to Regular Army standards in the event that they are mobilized into the federal service. For doing so, state Guards receive substantial federal funding; they are subject to Army review and inspection to ensure they maintain their readiness to mobilize. The Oklahoma National Guard page acknowledges that “Even when not federalized, the Army National Guard has a federal obligation…to maintain properly trained and equipped units, available for prompt mobilization for war, national emergency, or otherwise as needed.”
This relationship of the Oklahoma National Guard to the Regular Army is explicitly recognized by Oklahoma state law. Specifically, Title 44, Section 23 of “The Oklahoma Military Code” states that, unless federalized, the governor has the power to “discharge enlisted men…subject to the laws of the United States and regulations prescribed by the President of the United States.” The President, through the Defense Department and the Department of the Army, has directed the Director of the Army National Guard to dismantle DADT.
If Oklahoma enacted the Reynolds bill, the Oklahoma National Guard would be at risk of losing its federal funding. Title 32, Section 108 of the United States Code provides that, if a state National Guard “fails to comply with a requirement of this title, or a regulation prescribed under this title, the National Guard of that State is barred, in whole or in part, as the President may prescribe, from receiving money or any other aid, benefit, or privilege authorized by law.” Resurrecting DADT for the Oklahoma National Guard would, if nothing else, place all of the State’s Guard funding from the federal government in jeopardy.
And this is why Del. Marshall’s bill in Virginia ultimately died. The Guard is subject in many ways to the federal Regular Army, and as such its funding is made up in large part by federal dollars. The Republican Governor of Virginia, Bob McDonnell, in discussing Del. Marshall’s proposal, made it clear that “we can’t have two different systems in the military and our National Guard.” A McDonnell spokesperson reiterated the governor’s position and stated that “[w]e are not aware of a single instance in recent history where the Virginia National Guard has not complied with the policies and procedures of the Department of Defense.” More importantly, the spokesman added that “approximately 90 percent of the Virginia Guard’s funding is federal, and any departure from federal policies may put this funding at risk.”
The bill introduced by Rep. Reynolds will likely end the same way. But it is nonetheless disturbing that, even though Don’t Ask, Don’t Tell has been fully repealed now for months and the transition away from the discriminatory law is going smoothly, some individual legislators can’t accept that repeal of DADT made the military stronger, made the nation more secure, and brought the country one step closer to ensuring liberty and justice for all.
01-13-12 By David McKean, Legal Director, SLDN |
