well, semantics shape reality, but that's another topic...
this is probably obvious, but it seems to me that the same precedent/legal provision that enabled the change in status of the national guard. this is an abstract of a paper i just found because as i was writing that sentence i started to wonder if i knew what i was talking about
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Quote:
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The National Guard and Reserves are organized and funded to supplement active forces when needed. In peacetime, however, National Guard units belong to states, and state governors are the commanders in chief. Unless federalized, Guard members are not subject to the Uniform Code of Military Justice, and Guard units fall outside of the formal Department of Defense (DoD) command structure. Under the law, the National Guard is composed of individual, but nationally funded and regulated state militias that can be federalized and used as a reserve force. In 1947, a board appointed by Secretary of Defense James Forrestal recommended permanently federalizing the National Guard by making it part of the Reserves. The National Guard Association, a lobbying group representing Guard interests, appealed to Congress, and Secretary Forrestal's recommendation was rejected. In 1964, Secretary of Defense Robert McNamara recommended streamlining the Guard and Reserves by merging the Reserves into the Guard. The Reserve Officer's Association intervened and Congress again rejected the DoD's reserve component reorganization plan. Secretary of Defense Melvin Laird coined the phrase "Total Force" in a memorandum issued on August 21, 1971. Secretary Laird believed that placing more emphasis on the National Guard and Reserves as part of a "Total Force" was the most feasible way to achieve national defense objectives with limited funding. Over the next 30 years, poorly equipped and inadequately trained National Guard and Reserve units were transformed and are now critical to the success of any military mission. This paper reviews the historic background that led to the current law that places the National Guard under control of the states as well as the impact of the Guard's legal status on the Total Force. The paper offers three options for changing the statutory scheme that governs the Guard and Reserves.
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The Dual Status of the National Guard and the Total Force - Storming Media
first off, nixon again.
second, it's curious, but if this abstract touches on the main points developed in the article in a way that does not change what these points are, it seems that the change in status of the national guard into a reserve component of the military whcih can be deployed in conflict situations abroad derives its authority from a rhetorical shift rather than from a legal change, (where's loquitor when we need him?---and o yeah: rhetoric matters. so do semantics.) the same logic that would have called the national guard part of a "total force" could also be reversed. whence, it seems to me, the rationale for this blur of lines between military and police, abroad and domestic.
there must be more to this at the legal level--legislation since the "total force" idea was floated--but i don't have time at the moment to research it.
if this is correct, then there is a logical if not exactly legal basis for this of using military units for national guard functions that is quite independent of the newest fiasco a la bush that we are all eating now....which would mean that the two are not necessarily an expression one of the other, and so it would require an explicit action to link them.
what makes me think i don't have the whole story is that i cannot imagine the usage of the national guard since the reagan period to fight in wars and avoid the draft would not have already been challenged by SOMEONE...and if there was to be a challenge, you'd think the posse comitatus law would be a basis. but maybe no-one has challenged it really, and given the way the legal system operates (it's reactive to cases, it doesn't bother itself with questions of principle where there are no cases in the sense that i cannot imagine a court handing down a challenge to this policy without there being a case that brought the matter to its attention) what's required is a lawsuit.
but then again, there's this, from feb. 2007:
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Making Martial Law Easier
A disturbing recent phenomenon in Washington is that laws that strike to the heart of American democracy have been passed in the dead of night. So it was with a provision quietly tucked into the enormous defense budget bill at the Bush administration’s behest that makes it easier for a president to override local control of law enforcement and declare martial law.
The provision, signed into law in October, weakens two obscure but important bulwarks of liberty. One is the doctrine that bars military forces, including a federalized National Guard, from engaging in law enforcement. Called posse comitatus, it was enshrined in law after the Civil War to preserve the line between civil government and the military. The other is the Insurrection Act of 1807, which provides the major exemptions to posse comitatus. It essentially limits a president’s use of the military in law enforcement to putting down lawlessness, insurrection and rebellion, where a state is violating federal law or depriving people of constitutional rights.
The newly enacted provisions upset this careful balance. They shift the focus from making sure that federal laws are enforced to restoring public order. Beyond cases of actual insurrection, the president may now use military troops as a domestic police force in response to a natural disaster, a disease outbreak, terrorist attack or to any “other condition.”
Changes of this magnitude should be made only after a thorough public airing. But these new presidential powers were slipped into the law without hearings or public debate. The president made no mention of the changes when he signed the measure, and neither the White House nor Congress consulted in advance with the nation’s governors.
There is a bipartisan bill, introduced by Senators Patrick Leahy, Democrat of Vermont, and Christopher Bond, Republican of Missouri, and backed unanimously by the nation’s governors, that would repeal the stealthy revisions. Congress should pass it. If changes of this kind are proposed in the future, they must get a full and open debate.
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http://www.nytimes.com/2007/02/19/opinion/19mon3.html
i dont know if they were repealed.
so it's not like this is not a problematic area. but, again, it's because it's problematic that it pays to be cautious in drawing conclusions.