Scott Horton Show - Just the Interviews - 4/14/23 Michael Maharrey on The Best Arguments Against Defend The Guard and Why They’re Wrong

Episode Date: April 19, 2023

Scott is joined by Micahel Maharrey of the Tenth Amendment Center to talk about Defend The Guard. Maharrey reviews the arguments that federal and state officials have been using against the Defend The Guard legislation at some of the recent state legislative hearings. In this interview, he zeroes in on a couple that he considers to be the strongest. Maharrey lays out those arguments and explains why they fall short.  Discussed on the show: DefendTheGuard.us tenthamendmentcenter.com  Michael Maharrey serves as the national communications director for the Tenth Amendment Center and the managing editor of the SchiffGold website. Michael is the author of four books. Constitution: Owner’s Manual examines various constitutional clauses and principles through the lens of the ratifying conventions. Follow him on Twitter @mmaharrey10th This episode of the Scott Horton Show is sponsored by: Tom Woods’ Liberty Classroom; ExpandDesigns.com/Scott. Get Scott’s interviews before anyone else! Subscribe to the Substack. Shop Libertarian Institute merch or donate to the show through Patreon, PayPal or Bitcoin: 1DZBZNJrxUhQhEzgDh7k8JXHXRjY Learn more about your ad choices. Visit megaphone.fm/adchoices

All right, y'all, welcome to the Scott Horton Show. I'm the director of the Libertarian Institute, editorial director of anti-war.com, author of the book, Fool's Aaron, Time to End the War in Afghanistan, and The Brand New, Enough Already, Time to End the War on Terrorism. And I've recorded more than 5,500 interviews since 2004. almost all on foreign policy and all available for you at scothorton dot for you can sign up the podcast feed there and the full interview archive is also available at youtube.com slash scott horton's show hey guys on the line i've got michael maherry from the 10th amendment center welcome back to the show how are you doing hey scott's good to be on how are you man i'm happy to have you here what i said how are you oh me i'm great man Good, good.

Great to talk to you. Listen, you guys are right near the tip of the spear on leading this defend the guard legislation and movement to push this legislation through the state legislatures around this country to make it essentially a crime, I guess, to forbid the governors from giving their guard troops to the president to use in foreign wars without an official declaration of war by the Congress. And we've had some great successes lately, got it through some committees, and we got it through the full state Senate in Arizona, and we got more victories coming up. If everyone will do the work, contact Diego Rivera over there at defend the guard.us and join the phone banking projects. I mean, we've got results to brag about from, you know, just the last few weeks. So all that is going great. On the other hand, I have sat in on some of these state legislative committee. meetings this year, and I got to speak at a couple of them so far and try my best.

I don't know. But, and I've seen a lot of really great guys testify on our side, including you. Some of the veterans, man, it's just gut-wrenching. Yeah, yeah, some of the stuff. Well, we could talk about that in a minute, but here's the thing I want to get to. And we should talk about that in a minute. But the thing I want to get to is that I've been pretty impressed by some of these officers who come to the other side. And one of the things that they have the advantage is just, we go first, and they get the final word in the kind of hearing. And they show up in their shiny uniform and everything. And they go, I guess it was in Maine where it's the act, the head, the current head of the National Guard of their state got up there and just said,

ah, geez, I don't know what you're talking about. Can't do this. And had some pretty impressive arguments and I'm not sure if they're the best of them but I was just wondering I guess to start here what have you learned from the last couple of years of the best arguments of the other side I mean I know they like to just threaten the money but even then I think I've seen some pretty sophisticated arguments about how they threaten the money too in a pretty convincing way. So I just wonder, you know, to what degree have you sort of reassessed exactly what we're up against and what all we can do to overcome the narratives that these guys are setting, which are, you know, pretty powerful. And just begin with, essentially, as Joe Biden would say,

come on. Well, you know, I think a lot of their arguments sound good on the surface and they are delivered well, I think a lot of them don't really hold water. Now, there are a couple that I'll get to last that I think are pretty formidable from a legal standpoint. But the first one that always comes up is the money thing. And, you know, it is possible that if a state was to prohibit sending guard troops into these foreign wars, that the federal government would start withholding guard funding. I'm not sure that that is really a full-fleshed threat, to be honest with you. I think a lot of that is hot air.

And then this goes across all issues. Anytime you try to push back against anything the federal government does, that's their go-to. We're going to take away your funding. But, you know, you have to look at the other side of it. These are political creatures, and I don't think it's going to be a good look. if they go to the public and say, yeah, we can't send troops in unless there's a declaration of war, so we're taking your money.

I wouldn't want to have to try to sell that to the general public. So I think that that is more of a bullying tactic and kind of an empty threat more than anything. The other thing that you hear from some of these guys that really irks me is they'll start talking about how we'll lose our status in the military complex, which, you know, I think that's just a horrible argument. You're not going to let us run off and fight in foreign wars that aren't even authorized

by any legal anything, and you're going to tell me that that's going to cause you to lose your status, that your status is more important than following the Constitution, the law of the land. That's a pretty sad argument as well. But there are a couple of legal arguments that do come up that I think carry some weight. they are not invincible arguments. And that's the thing about legal arguments. You know, if one person gets to stand here and give this legal argument with a lot of legal terminology and throws out some court cases, and nobody has an opportunity to even counter that, if you're sitting on a committee and you see this guy in this, you know, uniform with shiny

buttons and pretty red ribbons and, you know, little color ribbons and stuff, it's going to sound very plausible. It's going to carry a lot of weight. So I think it's important to try to counter these arguments. The first one is that the Supreme Court has already ruled on this, which isn't really true. There is a Supreme Court case where they dealt with the issue of sending guard troops overseas for training missions. But this case is very narrowly tailored. And if you actually read the opinion, it's very clear that what the judges are saying is that, yes, the federal government because they have the power in the Constitution to train the militia, they can send them overseas for an overseas training mission. And so they've held that that's a

constitutional deployment. We're not talking about deploying National Guard units for training. If you look at the Defend the Guard language, it's very specific, talking about sending them into active duty combat, which is well-defined, sending them off to war, not training missions. in court has never ruled on the training mission issue. So at the best, the opponents could say, well, the court might decide that it's okay to send National Guard units into foreign combat without these authorizations. But they haven't yet. And if that's going to be their argument, then I say, let's have that battle in court. I'm more than happy to have it because I think that the constitutional basis for declaring war is very clear.

And maybe we could roll some of that back because, you know, that's the whole problem that we're trying to address with Defend the Guard is the fact that Congress doesn't do its job. It gives President the blank check to send troops anywhere in the world for any reason. And, of course, they do. And that was absolutely antithetical to what everybody in the founding generation thought. They did not want that power in the hands of one individual, particularly the individual who gets to run the wars. because if you get to run the wars, you have a lot more incentive to start them. And they understood that. That's why they gave that power to Congress. Congress hasn't done its job.

So what we're trying to do is we're trying to make Congress do its damn job. Then there's this other issue that comes up. And I think this one's a little bit more difficult and convoluted. And I'm going to try to explain it as simply as I can. And that's this idea. It's called dual enlistment. And I think before we can even talk about it, we need to back up and understand what the militia historically

is, or what historically has been. The militia, as defined in the founding generation, when the Constitution was ratified, was basically the whole body of people, and more specifically, able-bodied males, generally between the ages of 16 and 40. But it wasn't just a select group of people. Pretty much anybody who could pick up a gun and fight was part of the state militia. They trained. They could be called up to defend, you know, the frontier, to defend, you their communities. It was absolutely necessary in that time for everybody to be ready to go into a defensive military posture. In 19, I think it was 1903, it was 1903, there was an act called the Dick Act, which you can make all kinds of jokes about that. But that was the act that actually

organized the militia into today's National Guard. And basically what it did was it said, we're going to take this select portion of the militia, not the whole body of the people, but this select special group from the militia, and they're the ones that can be called up into federal service. So that was the establishment of the National Guard. Now, if you read the Dick Act, it's very clear that this was all based on the militia clause in the Constitution. So everything that the National Guard does is guided and limited by those clauses in the Constitution that define when the Guard can be called up. And if you look at the Dick Act, it actually says specifically that the constitutional militia is where this authority is coming from for the federal government to create this body. Now, in 1933, there was an amendment to the Dick Act, and then they came up with this concept called dual enlistment.

And basically what dual enlistment says is that when you are given the oath as a member of the National Guard, you're actually also duly enlisting in the federal military. So if you think about it in effect, what it does is it erases the line between the militia and the standing army, right? The National Guard argues that when called into active duty for federal service, that the Guard members are relieved of their status in the state militia. this actually was brought up in that main committee hearing. So they are relieved of their status in the militia, and they become part literally of the U.S. Army. So consequently, they argue that the restrictions in the First Militia Clause no longer have application to federalized National Guard units.

Now, this all sounds like, oh, okay, well, yeah, that makes sense. Here's the problem. In effect, what that amendment did in 1933 was an amendment. the Constitution, erased the militia and created this new dual militia standing army hybrid. It doesn't work. It is incoherent legally within itself, if that makes sense what I'm saying. What I mean is, is you can't have a militia that is in control of the state that can only be called it for federal purposes and at the same time have those same people be in the U.S. Army and no longer part of the militia. That's not a thing. They've created a thing that there's no authority to create. And again, you go back to the Dick Act of 1903, it's very clear that the whole

the whole concept of the National Guard is based on the militia clause. So from a practical standpoint, it doesn't make any sense. And I think that if challenged in court and if somebody makes the argument in the proper way, I think there's at least a 50-50 chance that the courts are going to side with the Defender Guard Act on this and limit that federal activation of those guard to get rid of this whole idea of dual enlistment. The powers that be, you know, again, the adjut generals and their cool uniforms and the National Guard spokespeople, they act like this dual enlistment is somehow, you know, carved in a stone and handed down from Moses off Mount Sinai. It's not. It is a concept that they've come up with. that has never actually been challenged in any way other than the Supreme Court case that I mentioned

that held that the governors can't restrict the guard units from being deployed into foreign countries for training purposes. So all of that long story to say is they're making what sounds like a compelling argument, but when you dig into the legal weeds, it really doesn't stand up. And, you know, I hate having to throw things into courts because you never know what they're going to do and they do tend to side with federal power. But that doesn't mean you just quit trying to push forward this very important piece of legislation. I say, go for it. And then let's see where those cards fall. Let's have that debate. Let's have that battle. If we just back off now, we know what's going to happen. We're going to keep having our National Guard units sent off into unconstitutional, wars, and there's going to be no pressure or incentive on Congress to reform itself and do its

job. If we push forward with National with the Defend the Guard Act, maybe it gets overturned in court at some point down the road, but it will make a very strong point. It will put pressure on Congress, and maybe we'll get the reforms that we need where Congress will do its job and actually debate sending our men and women off to die in these useless wars and actually take some accountability for the decisions they made. I hope all of that made sense because it is a little bit of convoluted legally, you know, legal gobbly goop. But I think it's pretty clear if you look at the Dick Act and then that 1933 amendment, those two things don't work together. Give me just a minute here. At the Libertarian Institute, we publish books, real good ones.

So far, we've got Will Griggs-Snow Quarter. Sheldon Richmond's coming to Palestine and what social animals owe to each other, and four of mine. Fools Aaron, enough already, the great Ron Paul, and my brand new one, hotter than the sun, time to abolish nuclear weapons. And I'm happy to announce that we've just published our managing editor Keith Knight's first one, the Voluntarius Handbook, an excellent collection of essays by the world's greatest libertarian thinkers and writers, including me. Check them all out at libertarian institute.org slash books. And for a limited time, signed copies of enough already and hotter than the sun are available at Scott Horton.org slash books. Hey guys, I had some wasps in my house. So I shot them to death with my

trusty bug assault 3.0 model with the improved salt reservoir and bar safety. I don't have a deal with them, but the show does earn a kickback every time you get a bug assault or anything else you buy from Amazon.com. By way of the link in the right-hand margin on the front page at Scott. Horton.org. So keep that in mind. And don't worry about the mess. Your wife will clean it up. All right. Now, so I want to ask you about the special case, maybe, of Texas, where we have a National Guard and a State Guard in Texas, right? So they can only nationalize one, not the other. So do you know the history there? Like, after they created the National Guard, the U.S. Congress did, the Texas government created their own separate one. Is that how that went? Or do you know? Yeah, basically. So it goes back to, again, historically. the militia has been the whole body of people. And different states had different parameters on it.

But by and large, in the founding generation, it was males 16 to roughly 40 years old. All of them. And that's the thing that people don't understand when they get into like the debates on the Second Amendment. They'll say, well, all the guns are just for the militia. Well, basically everybody was the militia. And you can go back to people like George Mason, Tinch Cox, very important founding father. all of those folks talked about the fact that the militia was the quote whole body of people the dick act created a section of that militia specialized them into the national guard still part of the militia as the dick act itself says and said that this group of people are the group of people that we can federalize now that left the rest of the militia you know to to state control so texas isn't the only state that has its own state Guard. I think Florida might. I know there's some other states that have that that same type

of thing. They have a military organization or military-esque organization that has no federal control over it whatsoever. So yeah, that's where that comes from. It comes from the fact that the Dick Act basically created, kind of carved out a special part of the state militia for federalization and then left the rest under state control. All right. Now, so You know, I know that it's just crazy to listen to them talk about money at these things. Like, geez, what about the money? But, you know, one of the things that I think it was in Maine, the guy said, look, they're not going to say, you know, you're now in trouble Maine and we're taking all your money away and that'll teach you to cross us, ha, ha, ha, or something. They're just going to make sure over at the Pentagon,

they're just going to include us out of whatever it is that they're doing. And they're just going to shuffle all their resources around everywhere else to states where they know that they'll be ready to come with them. If they say we need states militias to come with us now. And so there will be a de facto freezing out. And it was funny because at the same time he goes, then again, you know, we haven't. He didn't say then again.

He depends on how you consider, you know, his argument in context. But he said, we haven't been used, we, the State Guard or the National Guard of Maine. We haven't been used since the Great Ice Storm of 1997, he said. So otherwise, they have no other job to do except killing Iraqis and stuff like that. Right. Otherwise, they might have to get jobs. I honestly think that some of the mentality of the leadership that, that's really it. It's not so much that it's going to create this crisis for the state. It's

the fact that it's going to create a crisis for them. They like being part of this empire. They like being sent off to Iraq or Afghanistan or Somalia or God knows where. It's what they do, right? So I think it's almost more a challenge to their status and to their, you know, they don't want to be left out. And I've actually, it was a, there was a letter that circulated in North Dakota from the North Dakota National Guard when defendant guard was introduced up there. And in that letter, he actually, that adjutant general, agent general, he actually said that. I mean, he flat out said, we don't want to lose our place at the table, you know. Well, the table is corrupt. The table is evil.

Maybe you ought to get up and push back from the table. That's what I say to that. And, you know, again, I think it's not. not a good policy. If you want to make changes, if we want to, if we want to rein in the warfare state, we can't operate in fear. We have to understand that, yes, there may be consequences to the actions that we take. We may lose funding. They may take us to court. Who knows? But we have to draw a line in the sand somewhere. And you can't live in fear. And that's what people are doing. Well, they're going to take our funding. They're going to do this. Well, you're just living in

fear. And I say, don't do that. Let the chips fall where they may. And here's the solution to that problem. You know, if one state passes to defend the guard, yeah, it's easy to start shuffling resources. What if 10 states? What if 20 states? What if 30 states? Then it gets pretty hard for them to shuffle resources because there's no place to shuffle them too. So my argument to that is not to quit, but to get more states to push forward and pass this legislation. If all 50 states, do it, then, you know, problem solved. There's no way they can cut the funding because there's no place to shuffle it to. Yeah.

Well, and as Hank Hill said, Jesus, peace, not hippie piece. Right. Right, because we're talking about a bunch of war veterans from this era who, I don't know if you were ever in the Army or not. I don't, did you? You didn't go to Iraq or any of that, did you? No, no, no, no, I never did that. My grandfather was a career army, and he got out after the Vietnam War,

or actually still during the Vietnam War, having seen, he had enough at that point. So that was my closest relative in military service. You learned his lesson. A lot of us did. I'm grateful. That's the silver lining of Vietnam, is I knew better than to believe in that. Yeah. My grandfather would, if you wanted to.

to get him going. He was not one to talk about, like, his combat experiences, but he would certainly talk about the bullshit that he saw in Vietnam in terms of the politics, in terms of being someplace where they had no business being, someplace where they were not going to ever win. He recognized that, and he's like, I'm not doing this. And as a result, this man who was very proud of his military service, I mean, just, you know, a staunch conservative American, he was dead set against Iraq because he saw it for what it was. He said, this is, this is Vietnam all over again. And, you know, that's, that's like you said, that's kind of the blessing. Those guys recognize that. Unfortunately, they're starting to, they're starting to get to, you know, get old and we're going

to start losing those folks and the lessons learned. So then we're going to have to depend on the poor guys that were sent over as, as fodder in Iraq and Afghanistan and everywhere else. Well, so talk about the guys from Defend the Guard and bring our troops home. who were pushing this thing. Yeah, you know, from the standpoint of somebody who I kind of came from that, you know, that military family background, very proud of the military and whatnot before I, my political orientation changed. I don't have that mentality anymore, but I did. And I still get, I understand the folks that, you know, are U.R.

USA. I understand where they're coming from because that was me, you know, 20 years ago. But to sit there and listen to some of these guys who, and not just guys, men and women, who were in Iraq, who were in Afghanistan, and hear them talking about their experiences, the mental toll of, you know, watching their best friend get his head blown off. It really brings the reality of what is happening home. And I think that's something that we don't really get as modern people.

Like, in World War II, pretty much everybody was affected in some way. You know, so many people were sent off into that war. In the modern war on terror, it's really a slight few who are sent off.

And the rest of the rest of us, you know, we're putting the blue, yellow ribbons on our cars and the flag lapels And it becomes kind of this academic thing. Yeah, we're over there and we're bringing democracy and all the bullshit that they, excuse me, all of the, well, bullshit is what it is that they throw out there. When you hear these guys, you get the reality of these wars and that it's not just, you know, it's not just a policy thing.

It's not just the Constitution or some kind of, this is real life people who have suffered and dealt with. with just amazing, horrible things for nothing. And to hear those stories, I mean, I was literally brought to tears a couple of times listening to what these guys endured. And it really brings home how important that this work is. Because, again, it takes it away from being, you know, an academic thing or a legislative thing or legal thing,

and it brings it down to a human thing. And that's really ultimately what we're talking about, right? We want to stop killing people all over the world. Not only Americans, but, you know, Iraqis and Afghans and all of these folks who are suffering in these wars. We have the opportunity here to maybe not stop it, but at least to put some checks in place, to challenge it, to maybe slow it down.

And when you hear those guys talk, it just becomes that much more important to keep pressing. forward. And when you contrast what some of those guys say with, oh, we may lose our funding, the we may lose our funding argument starts us down really stupid when you put it next to the guy who, you know, has suffered PTSD and almost committed suicide because of the trauma that he endured. So, yeah, it's really powerful what those folks are doing. Yeah, absolutely. And especially to hear them talk this way to government officials,

Yeah. Look, I know you guys are looking at this one way, but let me tell you how I'm looking at it. Boy, it sure changes the kind of context and point of view in which the whole thing is considered. That's for sure. Yeah. And, you know, when you look at legislators, you know, they tend to be older. So you're talking a lot of boomers and exers who are in these legislatures. And, you know, we were fortunate in a way in our generation. You know, our prime military age, so I would have. let's see, I was turned to 18 and 89, somewhere in that neighborhood. So the Cold War was almost over. So, you know, my prime military service time would have been in the 90s, and it really wasn't, that was kind of, they were scaling back. So a lot of us didn't go into the military. There wasn't any reason to. And I think a lot of those folks sitting on those committees don't know.

Yeah. All they've gotten is the propaganda. You know, they've not heard these stories. And hopefully, you know, if nothing else, it is my hope that when we have these hearings, when people like you talk, people like these veterans, that it is at least educating some of these folks and maybe they'll make better decisions down the road. If nothing else comes out of this movement, that's the one thing that we can, without a doubt, do. We can educate people. We can make people aware of the

hideous nature of, you know, the endless wars. And God bless you for the work. We're going to do better We're going to get this thing passed. It is going to pass. These guys aren't giving up. I have to say this too, you know, for folks to get this. I'm all out of time. I've got to go, Mike. My next guy's waiting on me.

But thank you so much, Mike. It's great to talk to you again, as always. All right, man, thanks. All right. You guys, that is Michael Meherry. Of course, he's with Michael Bolden over there at the 10th Amendment Center. And that's 10th Amendment Center.com. The Scott Horton Show, Anti-War Radio, can be heard on KPFK, 90.7 FM.

in LA. APSRadio.com, anti-war.com, scothorton.org, and libertarian institute.org.