Tennessee AG Skrmetti questions bill limiting president’s ability to federalize National Guard

Tennessee’s attorney general issued a rare opinion, questioning the legality of a bill sponsored by 13 Republicans to limit the president’s ability to federalize the state national guard.

The proposed legislation would allow the president to take control of the Tennessee National Guard only if the U.S. Congress passed a declaration of war or if asked to “execute the laws of the union, repel an invasion or suppress an insurrection.”

Tennessee Attorney Jonathan Skrmetti said the bill’s requirements conflict with the federal War Powers Resolution, allowing the president to call up national guards for military actions without officially declaring war.

“Under federal law, Congress has the power to call up the National Guard in more than just these two instances,” Skrmetti’s opinion said. “This proposed state prohibition is constitutionally problematic. It would conflict with federal law and be subject to conflict preemption under the Supremacy Clause.”

Rep. Jay Reedy, R-Erin, and Sen. Rusty Crowe, R-Johnson City, are the lead sponsors on the bill filed in the state House in November and the Senate in January. Skrmetti’s opinion on the bill came before Crowe signed on as the Senate sponsor.

The legislation has drawn renewed attention as Texas Gov. Greg Abbott and President Joe Biden are at odds over how to handle an increase in immigrant crossings at the Texas-Mexico border.

The U.S. Supreme Court sided with the Biden administration last month, allowing the federal government to remove a razor-wire fence put up by Texas, action Biden’s administration has tried for months to stop, calling its use inhumane.

Following the court’s ruling, a legal question emerged about whether Abbott could continue instructing the Texas National Guard to put up razor wire, creating the potential for Biden to take control of the state’s military force to stop it.

Then two weeks ago, Gov. Bill Lee, along with 24 other Republican governors, signed a letter urging the president to not interfere with Texas, arguing the state has the right to put up the fence. Lee, who chairs the Republican Governor’s Association, promised to send more Tennessee National Guard members to help Texas after visiting the border earlier this month.

Tennessee has sent national guardsmen to Texas for several years, including 125 troops in October.

Reedy and Crowe’s bill has yet to be heard by a committee in either chamber. But on Monday, state House lawmakers approved a resolution from Reedy urging Congress to keep “the power to declare war and for the state national guard to be protected from executive power.” The resolution passed with only Republican support in a party-line vote of 73-23.