There is an interesting conflict growing between the federal and state governments over same-sex benefits after Oklahoma joined Texas, Mississippi and Louisiana this week in limiting the benefits for same-sex benefits. Yesterday, Oklahoma decided that the Oklahoma National Guard will no longer process benefit requests from same-sex couples by order of Gov. Mary Fallin. The Obama Administration maintains that the national guards must comply with federal law on such benefits in what could be a test of the remaining state control over national guard units.
The Guard is the direct descendent of the state militias from the founding of the Republic. The state control of such militias was always a problem in the Revolutionary War where their command and frankly fighting consistency remained controversial. The units could be called into federal service under Article I, Section 8; Clause 14 by Congress when “calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” The Militia Act of 1903 created the present National Guard system.
After Vietnam, the federal government cannot uniform training and standards for state units to make them more interchangeable with regular units. The federal government has progressively asserted more and more control over the units. In 2007, The John Warner Defense Authorization Act of 2007 declared that the Governor of a state would no longer be the sole commander in chief of their state’s National Guard during emergencies within the state — allowing a President to assert control. Then in 2008, in the National Defense Authorization Act 2008 Congress expanded the authority of a President to call up the National Guard of the United States during national emergencies. These changes were opposed by many governors, but Congress (showing a continued disconnect between members of Congress and their states). In 2006, all 50 governors opposed the expanded control of the federal government over the state units.
This latest controversy is different in one respect. It does not deal with military readiness or conditions for services, but the collateral question of marriage benefits. It could be the last fight over whatever remaining state control exists for the units. It is also the natural progression of increment but consistent federalization of these state units — making them effectively part of the federal military and simply at the disposal of the states. In that sense, it has elements reminiscent of the Obamacare fight where Chief Justice John Roberts recognized federalism and then gutted it by creating a huge hole for things declared to be taxes.
The odds favor the federal government in such a fight, but there are strong state interests and good-faith arguments to be made here. Moreover, it will be interesting to see if the White House welcomes such a fight at this time. The National Guard remains a prized institution for many who still do not accept that they are merely an auxiliary federal force.