DOD and the National Guard

The show down continues between the several states in particular Texas and the Department of Defense.

So what is the SECDEF suppose to do?  Well the first thing he might do is revoke or remove the ability of the affected National Guard’s from enrolling, modifying, or issuing any DOD ID cards.

If Guard members from the affected states have issues with their existing ID cards as they apply to or for access to Federal Facilities or programs they and or their dependents will have to go to a DOD facility, not a state facility to have these actions performed.

For example in Texas if a Guardsman or his family member needs a new ID card they would have to go to their nearest Federal Military Reservation.  That could be Fort Sam Houston, Randolph AFB, Lackland AFB all now known as Joint Base San Antonio, or Fort Hood, or Fort Bliss, or Dyess AFB, or Goodfellow AFB, or Laughlin AFB, or Sheppard AFB.  They might even be allowed to receive this service at Cannon AFB, or Holloman AFB (both in New Mexico), or even Altus AFB (Oklahoma) or Barksdale AFB (Louisiana).  That would be up to the SECDEF.

Depending on the state there should be at least one site in which a Guardsman and or their family member could go to for their credentialing matters.  They might have to drive a few hundred miles, but nothing is too much for these individuals when it comes to defending states rights.

But this is just the tip of the iceberg and I am sure that the various states would or could  find other issues to drive a wedge between the state and federal government.  Politians are a very creative lot, although for many members they appear rather shortsighted group.

But this does raise a deeper question concerning the various National Guards, and in particular Texas.  For many officers in the guard they hold dual commissions, one federal and one state.  There are officers of the Texas National Guard that only hold state commissions.  For all officers their oath of commissioning for Texas states as follows

“I ______________________. Do solemnly swear that I will bear true faith and allegiance to the State of Texas and to the United States of America; that I will serve them honestly and faithfully against all their enemies whomsoever, and that I will obey the orders of the governor of Texas, and the orders of the officers appointed over me, according to the laws, rules and articles for the government of the military forces of the State of Texas”

Title 4 Subtitle C. Chapter 432, Subchapter A, Sec. 431.007 Texas Statues.

The officers in the New York National Guard and most other states, their commissioning oath is as follows

I, ______________________ do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of State of New York against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will obey the orders of the President of the United States and the Governor of the State New York, that I make this obligation freely, without an mental reservations or purpose of evasion, and that I will well and faithfully discharge the duties of the Office of  _________________ in the Army/Air National Guard of the State New York upon which I am about to enter so help me God.

NGB 337 20060801/

State of Oklahoma requirements

§4445. Oath of commissioned officers. 
Oath for National Guard Officers. Each commissioned officer, before entering upon the duties of his office, shall take and subscribe to the following oath, or such other oath as may be required by National Guard Regulations:

"I .........., do solemnly swear that I will support and defend the Constitution of the United States and the Constitution of the State of Oklahoma against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will obey the orders of the President of the United States and the Governor of the State of Oklahoma; that I make this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office of ......., in the National Guard of the United States and the State of Oklahoma upon which I am about to enter, so help me God." 

Laws 1951, p. 116, art. 3, § 5, eff. May 16, 1951. 

But for those who hold dual commissions, and typically their federal commission was their first commission the first oath that they recited was

“I _______________________, having been appointed an officer in the Army of the United States, as indicated above in the grade of __________ do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic, that I will bear true faith and allegiance to the same; that I this obligation freely, without any mental reservations or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter; So help me God.”

DA Form 71, 1 August 1959.

There are two aspect of the Texas National Guard Officers oath that just does not sit right with me and those passages are
 

“ I will bear true faith and allegiance to the State of Texas and to the United States of America”

“I will obey the orders of the Governor of Texas”

The first passage the order of precedence is important the individual is swearing allegiance to the State of Texas and almost as an after thought to the United States of America.  In the law, the order of objects is everything.  When there are two possible conflicting demands required by a contract typically the first one cited takes precedence over the latter.

Not to put too fine of a point on the subject but this second passage from the Texas Oath is even more disturbing in that reminds me of a line from the Reischwehreid.  This was the oath sworn by Wehrmacht officers and soldiers and German civil servants for the years 1934 to 1945.   Which was an oath of loyalty to the

“Leader of the German empire and people,”

Granted the Texas Oath unlike the Reischwehreid actually stops at requiring the applicant from reciting or naming the current governor by name when they take the oath, but in the end that is not really a fine distinction.  The Texas Oath could only have been better if had the applicant renounce any and all previous oaths of allegiance, but I suspect that would have resulted in bad Juju coming down on the State of Texas by the federal government.

The Federal Oath of Allegiance states that the candidate is to “support and defend the Constitution of the United States”.  It is not an Oath of Allegiance to a particular state, or branch of government, and especially not to particular office or officer of the government.  It is accepted that the document (Constitution of the United States) is lawful, and that any orders to defend of the document are lawful.

For majority of the states their required Oath for Officers in their respective National Guards is first an allegiance to the Constitution of the United States, then to the Constitution of their respective state, and if so stated to orders of the President of the United States and then to the orders of their respective Governor.

So as I read the Texas Oath, an officer in the Texas National Guard first allegiance is the State of Texas, and then to the United States of America, and that they are to obey the orders of the Governor of Texas and those officers appointed over them.  The oath is silent as to order from the President of the United States.


There is no requirement in the oath for Texas to determine whether the orders are lawful either under the State of Texas Constitution or even the United States Constitution since the candidate has not explicitly sworn any allegiance by this Oath to support or defend the Constitution of the United Stares or for that matter the Constitution of the State of Texas, they have only sworn an oath to defend Texas, and then the United States of America, and explicitly accept orders from the Governor, and his appointed officers.

This is very disturbing, given this Officers Oath for the National Guard in Texas.  The next question should be whether United States Government via the Department of Defense actually providing funds to this organization?