Calling back Guards?

I read somewhere a couple weeks ago that a bunch of cities/townships in Vermont had moved to bring their Guard units currently in Iraq home. And it occurred to me to ask if this were a binding resolution, would it be enforceable?

(Wait, I found a 'somewhere'. Here. Read this. 57 communities pondered some form of this resolution, and 48 passed it, 3 voted it down, one tied, and the other 4 tabled it for later.)

The resolution, as introduced, calls for the Vermont Legislature to study the effect of National Guard deployments on the state; implores the state's congressional delegation to work to restore a "proper balance" between state and federal control of the Guard; and asks Congress and the administration of President Bush to withdraw U.S. forces from Iraq at a quick but "humanitarian" pace.

So, the bulk of Vermont has just passed a nonbinding resolution that their Guard units should come home. What happens if, say, tomorrow, they pass a binding resolution? I guess the real question is, does a state still have control over its Guard units, when they've been called up for Federal service? Note that I'm assuming the state has some control over its Guard units at all.

Well, OK. Let's address the latter note first. Article 1, Section 8, clauses 15 and 16 of the Constitution talk about providing "for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;" and providing "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..."

(Now, to back up an even further step: State and National Guardsmen are not Navy, not Army (the two types of forces explicitly mentioned in the Constitution). They must be something. Therefore, militia.)

If the Congress has to "call forth" the militia, and provide for organizing, arming, and disciplining the part of the militia employed in the service of the US, then when the militia or a part of it has not been called forth, that militia must be in the service of the State, not the United States.

Otherwise, there wouldn't be any calling forth to begin with, because the Guard has to be under some authority, somewhere.

What isn't clear from the Constitution is whether a State can simply demand its Guard back. I doubt, structurally, that it could.

If the Militia has been called forth into federal service (service of the United States rather than service of its own State), they're placed under the command of the Executive branch in the Executive's role as Commander in Chief of the Armed Forces. ("The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States..." Const. Art. II, §2, cl. 1.)

The President can't make use of these forces as forces - strategically and tactically - if a State were permitted to reclaim them without the Executive's permission or at least acknowledgement. To do so would diminish the Executive's authority on the battlefield, by permitting another authority to supersede his in the direction of troop movements, which directly contradicts the Constitutional delegation of power to the President as Commander in Chief.

Furthermore, the Congress has the authority to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers" -- a list of powers which included the power of calling up and providing for militias in US service. Const. Art. I, §8, cl. 18. The power to call up, to hold, should also include the power to release, should it not?

However, there's another problem. What if the Militia's use is unConstitutional?

Art. I, §8, cl. 15 lists the tasks for which the Militia may be called up: to "execute the Laws of the Union, suppress Insurrections and repel Invasions". Is invading and occupying another country on that list? Is that list exclusive? (Expressio unias est exclusio alterius. Specifying one is to the exclusion of others.) And even if that list is not comprehensive, all three elements are of a domestic nature - internal regulation, policing, and defense from physical invasion by an enemy. All tasks for which you need to be here, in the US, to perform. Deployment on the other side of the world in a war against and occupation of another country certainly sounds like foreign, not domestic affairs.

So, I am not at all certain that even if this list of jobs for the Militia is just a starting point, that non-domestic tasks should be included.