HB1450: HB1450 State militia; oversight of any deployment of the National Guard by the Governor; provide

26 LC 63 0100 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 Cod e of Georgia Annotated,1 relating to state militia generally, so as to provide for overs ight of any deployment of the2 National Guard by the Governor for state active duty or federal mobilization; to provide for3 notification, briefing, and reporting requirements; to require approval by the General4 Assembly prior to certain deployments; to provide for limitatio ns on using the National5 Guard in certain drug operations and for active combat; to prov ide for construction; to6 provide for legislative findings; to provide for definitions; to provide for related matters; to7 repeal conflicting laws; and for other purposes.8 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:9 SECTION 1.10 The General Assembly finds that:11 (1) Article I, Section 8, Clause 11 of the United States Constitution grants Congress the12 exclusive power to declare war;13 (2) Article I, Section 8, Clauses 15 and 16 of the United Stat es Constitution authorize14 calling forth the militia only to execute the laws of the union, to suppress insurrections, and15 to repel invasions;16 H. B. 1450 - 1 - 26 LC 63 0100 (3) The Tenth Amendment of the United States Constitution reserves powers not delegated17 to the United States to the states or the people; and18 (4) The Georgia National Guard remains under state authority unless lawfully federalized19 pursuant to constitutional authority.20 SECTION 2.21 Article 1 of Chapter 2 of Title 38 of the Official Code of Georgia Annotated, relating to state22 militia generally, is amended by revising Code Section 38-2-6, relating to ordering organized23 militia into active state service, Governor's duties, local officials' duties, declaration of state24 of emergency, and pay, as follows:25 "38-2-6.26 (a) Except as otherwise provided in Code Section 38-2-6.2:27 (1) The Governor shall have power, in case of invasion, disaster, insurrection, riot,28 breach of the peace, combination to oppose the enforcement of t he law by force or29 violence, or imminent danger thereof, or other grave emergency, to order all or any part30 of the organized militia into the active service of the state for such period, to such extent,31 and in such manner as he or she may deem necessary. Such power shall include the32 power to order the organized militia or any part thereof to function under the operational33 control of the United States army, navy, or air force commander in charge of the defense34 of any area within the state which is invaded or attacked or is or may be threatened with35 invasion or attack.; and36 (b)(2) Whenever any judge of a superior, city, or state court, sheri ff, or mayor of a37 municipality shall apprehend the outbreak of insurrection, riot , breach of the peace, or38 combination to oppose the enforcement of the law by force or vi olence within the39 jurisdiction of which such officer is by law the conservator of the peace, or in the event40 of disaster or other grave emergency, it shall be the duty of the judge, sheriff, or mayor,41 when it appears that the unlawful combination or disaster has p rogressed beyond the42 H. B. 1450 - 2 - 26 LC 63 0100 control of the civil authorities, to notify the Governor, and the Governor may then, in his43 or her discretion, if he or she deems the apprehension well founded or the disaster or44 emergency of sufficient magnitude, order into the active servic e of the state for such45 period, to such extent, and in such manner as he or she may deem necessary all or any46 part of the organized militia.47 (c)(b) When the Governor orders into the active service of the state all or any portion of48 the organized militia as provided in this Code section, he or s he shall declare a state of49 emergency in such locality and it shall be the duty of the Gove rnor to confirm such50 declaration and order in writing which shall state the area int o which the force of the51 organized militia has been ordered.52 (d)(c) The compensation of all officers and enlisted men while on du ty or assembled53 pursuant to this Code section shall be paid in the manner presc ribed by Code Section54 38-2-250."55 SECTION 3.56 Said article is further amended by adding a new Code section to read as follows:57 "38-2-6.2.58 (a) As used in this Code section, the term:59 (1) 'Active combat' means direct participation in an armed conflict or offensive operation60 outside of the United States. Such term shall not include training, humanitarian missions,61 disaster relief, logistics, medical support, cyber defense, int elligence gathering, or62 homeland defense.63 (2) 'Federal mobilization' means the activation of National Gu ard members by the64 President of the United States or Congress for federal active duty service.65 (3) 'State active duty' means full-time duty in the organized militia of this state, including66 the National Guard, under an order of the Governor or otherwise issued by authority of67 law when such duty is paid for with funds of the state.68 H. B. 1450 - 3 - 26 LC 63 0100 (b)(1) Within 48 hours of ordering the National Guard into sta te active duty, the69 Governor shall provide written notification to the Speaker of the House, the President of70 the Senate, and the Attorney General. Such notification shall include the following:71 (A) Specific legal authority for the deployment;72 (B) Purpose and scope of the mission;73 (C) Geographic area of the mission;74 (D) Anticipated duration of the mission;75 (E) Estimated cost to the state; and76 (F) Total number of members of the National Guard deployed.77 (2) Within seven days of federal mobilization of any part of t he National Guard, the78 Governor shall provide written notification to the Speaker of the House, the President of79 the Senate, and the Attorney General. Such notification shall include an assessment of80 the impact of the federal mobilization on state emergency readiness. The Governor shall81 further implement measures to ensure the continuity of state emergency preparedness and82 public safety operations during such mobilization.83 (c) Prior to the deployment of 100 or more members of the National Guard, or as soon as84 practicable following deployment in the event of an emergency t hat requires immediate85 deployment, the Governor or the adjutant general shall provide a comprehensive briefing86 regarding the necessity, legal basis, and mission parameters of such deployment to the87 Attorney General, members of the House Committee on Defense and Veterans Affairs, and88 members of the Senate Veterans, Military, and Homeland Security Committee.89 (d)(1) No deployment of any member of the National Guard shall exceed 14 consecutive90 days, nor shall any deployment under subsection (c) of this Cod e section exceed the91 anticipated duration reported pursuant to subsection (b) of this Code section, unless the92 General Assembly gives prior approval.93 (2) The approval required under paragraph (1) of this subsection shall be granted only94 by a joint resolution passed by a simple majority of both chamb ers of the General95 H. B. 1450 - 4 - 26 LC 63 0100 Assembly. If the General Assembly is not in session, the Gover nor shall summon the96 General Assembly for an emergency session for the sole purpose of considering the97 continuation of the deployment under this subsection.98 (3) If approval is requested under this subsection and not granted, the deployment shall99 be terminated and all members of the National Guard shall be withdrawn.100 (e) No member of the National Guard shall be released into active combat under Title 10101 of the United States Code unless Congress has enacted a formal declaration of war or has102 taken specific official action pursuant to Article I, Section 8, Clause 11 of the United States103 Constitution, and such declaration or action is to repel an inv asion, suppress an104 insurrection, or execute federal law pursuant to Article I, Section 8, Clause 15 of the United105 States Constitution.106 (f) The role of the National Guard in any counterdrug operatio n shall be limited to107 supporting law enforcement. Members of the National Guard shall not conduct or direct108 any law enforcement activities, including, but not limited to, searches, seizures, or arrests,109 unless expressly authorized by law and consistent with the Constitution of the United States110 and the Constitution of this state.111 (g) The Governor shall not deploy any member of the National G uard to intimidate,112 threaten, or coerce any person for the purpose of interfering with the right to vote.113 (h) The adjutant general shall submit an annual report to the General Assembly no later114 than January 31 each year. Such report shall include:115 (1) All federal and state deployments of the National Guard during the preceding year;116 (2) Retention and recruitment levels for the National Guard during the preceding year;117 (3) Readiness status of the National Guard;118 (4) Funding and equipment needs of the National Guard; and119 (5) Any other matters that the adjutant general deems relevant to the operational120 capability of the National Guard.121 H. B. 1450 - 5 - 26 LC 63 0100 (i) Nothing in this Code section shall be construed to limit t he lawful authority of the122 Governor to deploy the National Guard for immediate life-saving purposes or as required123 by the United States Constitution during a declared national emergency."124 SECTION 4.125 Said article is further amended in Code Section 38-2-10, relating to national guard, drug law126 enforcement, medical care, and youth opportunity programs, by r evising paragraph (1) of127 subsection (a) as follows:128 "(1) Except as otherwise provided in Code Section 38-2-6.2, aut horize Authorize or129 direct the Georgia National Guard to assist and support federal , state, and local law130 enforcement agencies in drug interdiction, counterdrug activiti es, and drug demand131 reduction;"132 SECTION 5.133 Said article is further amended in Code Section 38-2-11, relati ng to federally approved134 counterdrug law enforcement plans, by revising subsection (b) as follows:135 "(b) The Governor may authorize the use of Georgia National Guard personnel and136 equipment outside the boundaries of the state under this Code section, if:137 (1) A request is received from the governor of another state;138 (2) The request evidences that the requesting governor has authority to make the request;139 (3) The attorney general of the requesting state has acknowled ged the Governor's140 authority and has certified that National Guard personnel requested from this state while141 performing duty in the requesting state shall have the same immunity from liability and142 prosecution as do National Guard personnel of the requesting state performing such duty;143 and144 (4) The request relates to the performance of duty in a federally approved counterdrug145 law enforcement plan as authorized and funded under 32 U.S.C. Section 112; provided,146 H. B. 1450 - 6 - 26 LC 63 0100 however, that the role of the National Guard in any such plan s hall comply with147 subsection (f) of Code Section 38-2-6.2."148 SECTION 6.149 Said article is further amended in Code Section 38-2-25, relati ng to assemblies, annual150 training, special duty, active duty, and declaration of emergency, by revising subsections (c)151 and (d) as follows:152 "(c) Except as otherwise provided in Code Section 38-2-6.2, members Members and units153 of the organized militia may be ordered by the Governor to state active duty when in his154 judgment there exists a possibility of imminent danger of disas ter, riot, insurrection, or155 gross breach of the peace; provided, however, that, when so cal led to state active duty,156 members and units may not be deployed to quell riots, insurrection, or gross breach of the157 peace or to maintain order until an emergency has first been declared as provided in Code158 Section 38-2-6 or 45-12-30.159 (d) Except as otherwise provided in Code Section 38-2-6.2, mem bers Members of the160 organized militia, with their consent, may be ordered by the Governor to state active duty161 for any lawful purpose or purposes and without pay and allowances or other compensation,162 except as specifically set forth in such orders, but with all other privileges, rights, benefits,163 and immunities provided by the military laws or other statutes of this state; provided,164 however, that, when so called to state active duty, members of the organized militia may165 not be deployed to quell riots, insurrections, or a gross breach of the peace or to maintain166 order until an emergency has first been declared as provided in Code Section 38-2-6 or167 45-12-30."168 SECTION 7.169 Said article is further amended in Code Section 38-2-90, relating to service outside state and170 application of state military law to such service, by revising subsection (a) as follows:171 H. B. 1450 - 7 - 26 LC 63 0100 "(a) Except as otherwise provided in Code Section 38-2-6.2, the The Governor may order172 the organized militia or any part thereof to serve outside the borders of the state or of the173 United States in order to perform military duty of every descri ption; to participate in174 parades, reviews, cruises, conferences, encampments, maneuvers, or other training; to175 participate in small arms and other military competitions; and to attend service schools."176 SECTION 8.177 Said article is further amended in Code Section 38-2-91, relating to rendering assistance to178 another state's armed forces, Governor's request and recall, and requesting assistance for this179 state, by revising subsection (a) as follows:180 "(a) Except as otherwise provided in Code Section 38-2-6.2, upon Upon the request of the181 governor of another state, the Governor in his discretion may order all or any portion of the182 organized militia to assist the military or police forces of the other state who are actually183 engaged in defending the other state. Such forces may be recalled by the Governor at his184 discretion."185 SECTION 9.186 All laws and parts of laws in conflict with this Act are repealed.187 H. B. 1450 - 8 -