HB 1450: State militia; oversight of any deployment of the National Guard by the Governor; provide

House Bill 1450

By: Representatives Jackson of the 68th, Reese of the 140th, Mitchell of the 88th, Bell of the 75th, Scott of the 76th, and others

A BILL TO BE ENTITLED

AN ACT

To amend Article 1 of Chapter 2 of Title 38 of the Official Code of Georgia Annotated, relating to state militia generally, so as to provide for oversight of any deployment of the National Guard by the Governor for state active duty or federal mobilization; to provide for notification, briefing, and reporting requirements; to require approval by the General Assembly prior to certain deployments; to provide for limitations on using the National Guard in certain drug operations and for active combat; to provide for construction; to provide for legislative findings; to provide for definitions; to provide for related matters; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

The General Assembly finds that:

(1) Article I, Section 8, Clause 11 of the United States Constitution grants Congress the exclusive power to declare war;

(2) Article I, Section 8, Clauses 15 and 16 of the United States Constitution authorize calling forth the militia only to execute the laws of the union, to suppress insurrections, and to repel invasions;

(3) The Tenth Amendment of the United States Constitution reserves powers not delegated to the United States to the states or the people; and

(4) The Georgia National Guard remains under state authority unless lawfully federalized pursuant to constitutional authority.

SECTION 2.

Article 1 of Chapter 2 of Title 38 of the Official Code of Georgia Annotated, relating to state militia generally, is amended by revising Code Section 38-2-6, relating to ordering organized militia into active state service, Governor's duties, local officials' duties, declaration of state of emergency, and pay, as follows:

"38-2-6.

(a) Except as otherwise provided in Code Section 38-2-6.2: (1) The Governor shall have power, in case of invasion, disaster, insurrection, riot, breach of the peace, combination to oppose the enforcement of the law by force or violence, or imminent danger thereof, or other grave emergency, to order all or any part of the organized militia into the active service of the state for such period, to such extent, and in such manner as he or she may deem necessary. Such power shall include the power to order the organized militia or any part thereof to function under the operational control of the United States army, navy, or air force commander in charge of the defense of any area within the state which is invaded or attacked or is or may be threatened with invasion or attack.; and

(b)(2) Whenever any judge of a superior, city, or state court, sheriff, or mayor of a municipality shall apprehend the outbreak of insurrection, riot, breach of the peace, or combination to oppose the enforcement of the law by force or violence within the jurisdiction of which such officer is by law the conservator of the peace, or in the event of disaster or other grave emergency, it shall be the duty of the judge, sheriff, or mayor, when it appears that the unlawful combination or disaster has progressed beyond the control of the civil authorities, to notify the Governor, and the Governor may then, in his or her discretion, if he or she deems the apprehension well founded or the disaster or emergency of sufficient magnitude, order into the active service of the state for such period, to such extent, and in such manner as he or she may deem necessary all or any part of the organized militia.

(c)(b) When the Governor orders into the active service of the state all or any portion of the organized militia as provided in this Code section, he or she shall declare a state of emergency in such locality and it shall be the duty of the Governor to confirm such declaration and order in writing which shall state the area into which the force of the organized militia has been ordered.

(d)(c) The compensation of all officers and enlisted men while on duty or assembled pursuant to this Code section shall be paid in the manner prescribed by Code Section

38-2-250."

SECTION 3.

Said article is further amended by adding a new Code section to read as follows:

"38-2-6.2.

(a) As used in this Code section, the term:

(1) 'Active combat' means direct participation in an armed conflict or offensive operation outside of the United States. Such term shall not include training, humanitarian missions, disaster relief, logistics, medical support, cyber defense, intelligence gathering, or homeland defense.

(2) 'Federal mobilization' means the activation of National Guard members by the President of the United States or Congress for federal active duty service.

(3) 'State active duty' means full-time duty in the organized militia of this state, including the National Guard, under an order of the Governor or otherwise issued by authority of law when such duty is paid for with funds of the state.

(b)(1) Within 48 hours of ordering the National Guard into state active duty, the Governor shall provide written notification to the Speaker of the House, the President of the Senate, and the Attorney General. Such notification shall include the following:

(A) Specific legal authority for the deployment;

(B) Purpose and scope of the mission;

(C) Geographic area of the mission;

(D) Anticipated duration of the mission;

(E) Estimated cost to the state; and

(F) Total number of members of the National Guard deployed.

(2) Within seven days of federal mobilization of any part of the National Guard, the Governor shall provide written notification to the Speaker of the House, the President of the Senate, and the Attorney General. Such notification shall include an assessment of the impact of the federal mobilization on state emergency readiness. The Governor shall further implement measures to ensure the continuity of state emergency preparedness and public safety operations during such mobilization.

(c) Prior to the deployment of 100 or more members of the National Guard, or as soon as practicable following deployment in the event of an emergency that requires immediate deployment, the Governor or the adjutant general shall provide a comprehensive briefing regarding the necessity, legal basis, and mission parameters of such deployment to the Attorney General, members of the House Committee on Defense and Veterans Affairs, and members of the Senate Veterans, Military, and Homeland Security Committee. (d)(1) No deployment of any member of the National Guard shall exceed 14 consecutive days, nor shall any deployment under subsection (c) of this Code section exceed the anticipated duration reported pursuant to subsection (b) of this Code section, unless the General Assembly gives prior approval.

(2) The approval required under paragraph (1) of this subsection shall be granted only by a joint resolution passed by a simple majority of both chambers of the General Assembly. If the General Assembly is not in session, the Governor shall summon the General Assembly for an emergency session for the sole purpose of considering the continuation of the deployment under this subsection.

(3) If approval is requested under this subsection and not granted, the deployment shall be terminated and all members of the National Guard shall be withdrawn.

(e) No member of the National Guard shall be released into active combat under Title 10 of the United States Code unless Congress has enacted a formal declaration of war or has taken specific official action pursuant to Article I, Section 8, Clause 11 of the United States Constitution, and such declaration or action is to repel an invasion, suppress an insurrection, or execute federal law pursuant to Article I, Section 8, Clause 15 of the United States Constitution.

(f) The role of the National Guard in any counterdrug operation shall be limited to supporting law enforcement. Members of the National Guard shall not conduct or direct any law enforcement activities, including, but not limited to, searches, seizures, or arrests, unless expressly authorized by law and consistent with the Constitution of the United States and the Constitution of this state.

(g) The Governor shall not deploy any member of the National Guard to intimidate, threaten, or coerce any person for the purpose of interfering with the right to vote.

(h) The adjutant general shall submit an annual report to the General Assembly no later than January 31 each year. Such report shall include:

(1) All federal and state deployments of the National Guard during the preceding year;

(2) Retention and recruitment levels for the National Guard during the preceding year;

(3) Readiness status of the National Guard;

(4) Funding and equipment needs of the National Guard; and

(5) Any other matters that the adjutant general deems relevant to the operational capability of the National Guard.

(i) Nothing in this Code section shall be construed to limit the lawful authority of the Governor to deploy the National Guard for immediate life-saving purposes or as required by the United States Constitution during a declared national emergency."

SECTION 4.

Said article is further amended in Code Section 38-2-10, relating to national guard, drug law enforcement, medical care, and youth opportunity programs, by revising paragraph (1) of subsection (a) as follows:

"(1) Except as otherwise provided in Code Section 38-2-6.2, authorize Authorize or direct the Georgia National Guard to assist and support federal, state, and local law enforcement agencies in drug interdiction, counterdrug activities, and drug demand reduction;"

SECTION 5.

Said article is further amended in Code Section 38-2-11, relating to federally approved counterdrug law enforcement plans, by revising subsection (b) as follows: "(b) The Governor may authorize the use of Georgia National Guard personnel and equipment outside the boundaries of the state under this Code section, if:

(1) A request is received from the governor of another state;

(2) The request evidences that the requesting governor has authority to make the request;

(3) The attorney general of the requesting state has acknowledged the Governor's authority and has certified that National Guard personnel requested from this state while performing duty in the requesting state shall have the same immunity from liability and prosecution as do National Guard personnel of the requesting state performing such duty; and

(4) The request relates to the performance of duty in a federally approved counterdrug law enforcement plan as authorized and funded under 32 U.S.C. Section 112; provided, however, that the role of the National Guard in any such plan shall comply with subsection (f) of Code Section 38-2-6.2."

SECTION 6.

Said article is further amended in Code Section 38-2-25, relating to assemblies, annual training, special duty, active duty, and declaration of emergency, by revising subsections (c) and (d) as follows:

"(c) Except as otherwise provided in Code Section 38-2-6.2, members Members and units of the organized militia may be ordered by the Governor to state active duty when in his judgment there exists a possibility of imminent danger of disaster, riot, insurrection, or gross breach of the peace; provided, however, that, when so called to state active duty, members and units may not be deployed to quell riots, insurrection, or gross breach of the peace or to maintain order until an emergency has first been declared as provided in Code Section 38-2-6 or 45-12-30.

(d) Except as otherwise provided in Code Section 38-2-6.2, members Members of the organized militia, with their consent, may be ordered by the Governor to state active duty for any lawful purpose or purposes and without pay and allowances or other compensation, except as specifically set forth in such orders, but with all other privileges, rights, benefits, and immunities provided by the military laws or other statutes of this state; provided, however, that, when so called to state active duty, members of the organized militia may not be deployed to quell riots, insurrections, or a gross breach of the peace or to maintain order until an emergency has first been declared as provided in Code Section 38-2-6 or

45-12-30."

SECTION 7.

Said article is further amended in Code Section 38-2-90, relating to service outside state and application of state military law to such service, by revising subsection (a) as follows: "(a) Except as otherwise provided in Code Section 38-2-6.2, the The Governor may order the organized militia or any part thereof to serve outside the borders of the state or of the United States in order to perform military duty of every description; to participate in parades, reviews, cruises, conferences, encampments, maneuvers, or other training; to participate in small arms and other military competitions; and to attend service schools."

SECTION 8.

Said article is further amended in Code Section 38-2-91, relating to rendering assistance to another state's armed forces, Governor's request and recall, and requesting assistance for this state, by revising subsection (a) as follows:

"(a) Except as otherwise provided in Code Section 38-2-6.2, upon Upon the request of the governor of another state, the Governor in his discretion may order all or any portion of the organized militia to assist the military or police forces of the other state who are actually engaged in defending the other state. Such forces may be recalled by the Governor at his discretion."

SECTION 9.

All laws and parts of laws in conflict with this Act are repealed.