Lingering mostly unnoticed within Title XVIII, Subtitle B, Section 1882 of the 2008 National Defense Authorization Act is a single paragraph:
The President shall establish a bipartisan Council of Governors to advise the Secretary of Defense, the Secretary of Homeland Security, and the White House Homeland Security Council on matters related to the National Guard and civil support missions.
The instruction comes early in a seeming hodgepodge of measures to achieve “additional reserve component enhancement.” As far as I can find, President Bush did not establish the Council and President Obama has not yet undertaken to do so.
On Tuesday in prepared testimony for the House Armed Services Committee, Subcommittee on Terrorism, Unconventional Threats and Capabilities, Paul Stockton offered the following:
State and local expertise and perspectives are essential to success. It is also important to be mindful of the fact that, in our nation’s Federalist system, the Governors are sovereign, independently elected chief executives of their States. As the Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs, I hope to contribute to a more inclusive effort, one that involves State and local partners as partners aforethought and not as an afterthought. (Note: emphasis in original testimony.) Congress, in section 1822 of the National Defense Authorization Act for Fiscal Year 2008 (Public Law 110-181), has provided a valuable vehicle through which to accomplish this goal: the “Council of Governors,” which would provide a forum for Governors, the Secretary of Defense, and the Secretary of Homeland Security to exchange advice, views, and recommendations on the National Guard, DSCA, and other matters of mutual interest. I will make it a top priority to implement this congressional objective.
The legislation is silent on how the Council of Governors might be established. It could have fifty — or even more — members (the legislation does not reference “states,” evidently terroritories might also be included). The Governors themselves might participate. But it could also consist of powerless appointees gathered as yet another feeble federal advisory body.
In his testimony Mr. Stockton gives primary attention to the practical benefits of involving Governors and acknowledging local capability in preventing, responding to, and recovering from catastrophic events. The practicalities of risk-readiness innately push for State and local leadership. As Secretary Napolitano said on Wednesday, “So how do we secure our homeland and stay true to our values?…It starts with the American people. From there, it extends to local law enforcement, and from there up to the federal government…”
Acknowledging and affirming the authority of the States in disaster preparedness and counter-terrorism is also consistent with Constitutional protections of State sovereignty that - along with separation of powers, bicameralism, and the Bill of Rights – is another firewall to tyranny.
In Federalist Paper No. 9 James Madison wrote, “The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power.”
Today most Americans — unlike our Founders — do not give much thought to the threat of tyranny. Our benign neglect is a privilege produced by an intricate, sometimes unwieldy, yet resilient constitutional architecture. It is worth considerable concern when any aspect of the structure is weakened.
For the last half-century the authority of the States in many domains — and especially in regard to security — has been more honored in the breach than in the observance. If you wonder about the Founders’ intent, take some time to read — and perhaps to tremble at – Madison’s comparison of the federal and state governments in Federalist Paper No. 46. Since the close of the Civil War such language has been largely limited to the political fringe.
A Council of Governors — especially one embraced with enthusiasm and discipline by the Governors — could restore balance where the central government has grown far beyond its intended proportion.
Q. Why would you have your government so mixed?
A. Because the experience of the ages has proved that mixed governments are best.
Q. Simplicity is amiable and convenient in most things, why not in government?
A. Human nature is such, that it renders simple government destructive, and makes it necessary to place one power over against another to balance its weight.
March 16, 1776
(Editorial Note: The above is related to the July 29 posting entitled CCMRF: Constitutional Consequence Management Response Force)