_____________ bill NO. _____________

INTRODUCED BY _________________________________________________

By Request of the ****

A BILL FOR AN ACT ENTITLED: "AN ACT REQUIRING AN OFFICIAL CONGRESSIONAL DECLARATION OR ACTION TO RELEASE THE MONTANA NATIONAL GUARD TO ACTIVE COMBAT DUTY; PROVIDING DEFINITIONS; and PROVIDING AN IMMEDIATE EFFECTIVE DATE."

WHEREAS, the Montana Legislature finds that Article I, section 8, of the United States Constitution vests in the United States Congress the exclusive power of war; and

WHEREAS, despite the clear language of the United States Constitution vesting power over war exclusively in the United States Congress, the United States executive branch has unconstitutionally assumed this power while the United States Congress has abdicated its constitutional duty; and

WHEREAS, although the United States Congress has not declared war in over 70 years, the nation has since gone to war repeatedly at the whim of the executive branch; and

WHEREAS, when unconstitutional actions are taken by the federal government, it is the proper role of the states themselves to take action to remedy these situations, as outlined in the Kentucky and Virginia Resolutions of 1798; and

WHEREAS, a founder of this country, George Washington, once wrote, "The Constitution vests the power of declaring War with Congress, therefore, no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorised such a measure"; and

WHEREAS, the father of the United States Constitution, James Madison, once wrote, "The constitution supposes, what the History of all Governments demonstrates, that the Ex[ecutive] is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl[ature]"; and

WHEREAS, the author of the Declaration of Independence, Thomas Jefferson, once wrote, "We have already given in example one effectual check to the Dog of war by transferring the power of letting him loose from the Executive to the Legislative body"; and

WHEREAS, Thomas Jefferson also wrote, "[C]onsidering that Congress alone is constitutionally invested with the power of changing our condition from peace to war, I have thought it my duty to await their authority for using force in any degree which could be avoided"; and

WHEREAS, another constitutional framer, Alexander Hamilton, once wrote, "'The Congress shall have the power to declare war;' the plain meaning of which is that, it is the peculiar and exclusive province of Congress, when the nation is at peace, to change that state into a state of war[.]".

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

NEW SECTION. Section 1. Short title. [Sections 1 through 3] may be cited as the "Defend the Guard Act".

NEW SECTION. Section 2. Definitions. As used in [sections 1 through 3], the following definitions apply:

(1)        "Active duty combat" means performing one or more of the following services in the active federal military service of the United States:

(a)        participation in an armed conflict;

(b)        performance of a hazardous service in a foreign state; or

(c)        performance of a duty through an instrumentality of war.

(2)        "Official declaration of war" means an official declaration of war made by the United States congress pursuant to Article I, section 8, clause 11, of the United States constitution.

NEW SECTION. Section 3. Montana national guard -- official declaration or official action required. (1) Notwithstanding any other provision of law, the Montana national guard and any member of the Montana national guard may not be released from the state into active duty combat unless the United States congress has:

(a)        passed an official declaration of war; or

(b)        taken an official action pursuant to Article I, section 8, clause 15, of the United States constitution to explicitly call forth the Montana national guard and any member of the Montana national guard for the enumerated purposes to expressly execute the laws of the country, repel an invasion, or suppress an insurrection.

(2)        The governor shall take any action necessary to comply with the requirements of this section.

NEW SECTION. Section 4. Codification instruction. [Sections 1 through 3] are intended to be codified as an integral part of Title 10, chapter 1, and the provisions of Title 10, chapter 1, apply to [sections 1 through 3].

NEW SECTION. Section 5. Effective date. [This act] is effective on passage and approval.