Understanding the “Defend the Guard” Movement and H.355

By Rep. Laura Sibilia

I have heard from Vermonters, many of them outside the Windham-2 district I represent, about H.355, often called the “Defend the Guard Act.” I believe that outreach is happening in part because I come from a military family and serve as Co-Chair of the Vermont National Guard and Veterans Affairs Caucus. Issues affecting Guard members and their families matter deeply to me.

Before taking a position on any bill, I believe it is important to understand where it comes from, what it is trying to do, and how it proposes to do it.

“Defend the Guard” is a national grassroots movement led largely by veterans of Iraq and Afghanistan. Supporters argue that the Constitution gives Congress the power to declare war, that Congress has not issued formal declarations of war in decades, and that National Guard members have been deployed overseas under Authorizations for Use of Military Force rather than formal declarations. Their conclusion is that states should refuse to allow Guard units into combat unless Congress formally authorizes it.

Versions of this legislation have been introduced in multiple states over the past several years. The goal appears to be to pressure Congress to reclaim its war powers.

H.355 would require the Governor to review federal orders placing the Vermont National Guard into active duty combat. It would prohibit the Governor from releasing Guard members into federal combat service unless Congress has issued an official declaration of war or specifically called forth the militia under limited constitutional clauses. It would further direct the Governor to prevent deployment if those criteria are not met. Supporters describe this as a constitutional safeguard.

To evaluate that claim, we have to look at how the Guard actually operates.

The National Guard has a dual structure. Under Title 32 of the U.S. Code, Guard units operate under state control unless called into federal service. In that status, the Governor directs state missions such as disaster response and civil support.

Under Title 10, Guard units are federalized and become part of the U.S. Armed Forces. In that status, the President is commander in chief, and the Guard performs federal missions such as overseas deployments and national defense operations.

Guard members hold dual enlistments. They are members of both their state National Guard and the National Guard of the United States. When the federal government invokes authority, they transition into federal service.

This structure is not optional. It is foundational. The U.S. Supreme Court affirmed this in Perpich v. Department of Defense, holding that once Guard members are ordered into federal service, a governor does not have authority to block that activation.

It is also true that Congress has not formally declared war in recent decades. The last formal declarations were in 1942 against Bulgaria, Hungary and Romania. Instead, Congress has passed broader statutory authorizations. Whether one believes that is good policy or not, those authorizations are federal law. Under the Supremacy Clause of the Constitution, federal law governs when Guard units are federalized. A state cannot nullify federal military orders.

There are Vermonters who are understandably concerned about current and recent deployments. Whenever Vermont Guard members are deployed, their safety matters deeply to me.

But there are two distinct questions here. Should Congress be more accountable when authorizing military action? And can a state legally refuse a federal activation order? The first is a legitimate and ongoing debate about war powers. The second has already been answered by constitutional law.

Many supporters of H.355 are veterans. They want clear congressional votes before war, fewer open-ended conflicts, protection for Guard members, and preserved Guard capacity at home. I respect and share those goals.

However, if Vermont were to pass a law declaring certain federal military orders invalid, it would almost certainly face immediate legal challenge and likely lose in federal court. That would not protect our Guard members. It would create legal confusion and false expectations.

If the concern is congressional accountability, there are constructive steps that do not conflict with constitutional limits. We can hold legislative hearings and hear from our federal delegation about overseas activation, we could pass formal resolutions urging Congress to debate and authorize military force, and we could work directly with our congressional delegation on war powers reform.

Those actions reinforce democratic accountability without putting Vermont in a legal position it is clearly preempted from.

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Laura Sibilia is an independent State Representative from Dover, serving the Windham–2 district. She has represented communities in Southern Vermont in the Legislature since 2014, focusing on rural economic development, energy, and education.