That pesky 10th Amendment thing

| November 1, 2013 | 26 Comments

12H sends us a link from US News which tells of the problems that the DoD’s decision to grant dependent status to same sex couples is causing among the various states in contradiction to their own laws;

Texas was the first of nine states that have said it will not issue military identity cards to the same-sex spouses of troops within their National Guard units. The Department of defense lifted its ban on gays serving openly in the military following the June 26 Supreme Court ruling that struck down parts of the Defense of Marriage Act. In September the Department of Defense began issuing full military benefits to the spouses of these gay troops.

The state of Texas, followed by Indiana, Georgia, Florida, Mississippi, Louisiana, Oklahoma, South Carolina and West Virginia have all declined to issue the cards to National Guard troops, citing potential conflicts between these new federal policies and state laws at home.

Secretary of Defense Chuck Hagel is furious about this, I guess, because he doesn’t understand that state governments have laws of their own because the 10th Amendment guarantees that States have a right to their own laws.

“This is wrong,” [Hagel] said. “It causes division among the ranks, and it furthers prejudice, which DOD has fought to extinguish.”

Under Hagel’s orders, National Guard Bureau Chief Gen. Frank Grass will meet with each of these states’ adjutant general, who commands the state National Guard when it isn’t federalized. These officers will be “expected to comply with both lawful direction and DOD policy, in line with the practices of 45 other states and jurisdictions,” the secretary said.

I guess like everything else this administration does, they only half-assed their assessment of the scope of their pronouncement. Sending an emissary to the various states won’t change the laws, will it?

Category: Military issues, National Guard

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  1. O-4E says:

    The only thing they can do is threaten to withdraw federal recognition and $$$ from those state’s Guard.

    And seeing as how the Guard is currently coming up with plans to cut force structure (even though we haven’t been told to yet)

    You can bet those states that do not comply will bear the burden of future force structure cuts

  2. OWB says:

    This is gonna be interesting. Very, very interesting.

  3. Instinct says:

    Actually, I would love to see all federal money removed from the states. Makes it easier for the states to tell the Feds to go screw when you don’t rely on their money.

  4. Veritas Omnia Vincit says:

    Sh1t they ride all over the 2nd amendment like it doesn’t matter and the 4th is rapidly becoming a joke as well, f$ck the 10th it’s way down on the list…

  5. Joe says:

    Sometimes progress comes in fits and starts. Especially if people are trying to throw obstacles on the track.

  6. rb325th says:

    Yet the DoD is not willing to render full Federal Benefits to members of the National Guard either. If you retire from the Guard and have never been on Federal Orders I dare you to try and get healthcare benefits via the Veterans Administration. It is not happening. Your retirement priveleages as a Guardsman are also less than those of a an Active Duty soldier as well, so while “Honorable” Mr hagel is on his soap box about equality and benefits, he should erradicate all the “unequal” treatment of Guardsman.

  7. Hondo says:

    rb325th: if someone’s never served on Federal orders – other than, presumably, IET – why should the Federal government have any responsibility regarding service-connected conditions due to injuries incurred during non-Federal service? Seems to me that’s legitimately a state issue vice Federal.

  8. rb325th says:

    @7 the State vs Federal issue should also come into play in regard to state laws as well. The federal government should not just pick and choose what “benefits” it cares to share with the Guardsman then. With what Mr Hagel is saying, it should be all in then on giving full benefits to the Troops…

  9. Hondo says:

    rb325th: actually, I believe that guardsmen have identical benefits with members of the Federal reserves regarding those benefits acquired through Federal service. And as a point of fact, guardsmen may actually get an arguably better deal – as I believe that state active duty and/or state-funding IDT also counts towards a Guardsman’s retirement pension.

    Neither group gets the same bennies as Federal active duty troops. That’s simply part of the “deal” when it comes to being a member of the Reserve Component.

  10. Stacy0311 says:

    @9-IDT is normally federally funded. Title 32 and State active duty does NOT count towards retirement. Retirement from the Guard (and probably from the Reserves also) is a patchwork half assed system that needs a serious overhaul. Especially considering how many Guard/Reservists did multiple deployments over the past 12 years.

  11. Former 11B says:

    If you want AD benefits, then go AD. I know NG and Reserve have to face hardships like getting activated, but you get de facto benefits, like being with your families when you’re not activated, which most AD troops do not. You also have a lot more leeway on whether or not you deploy. You can’t have your cake and eat it too. As for the point you make about not taking federal money; yeah sure, MS, SC, and WV all receive much more in federal tax dollars than they pay out, I’m sure they’re just itching to throw all that cash out the window.

  12. Grimmy says:

    Oh No!

    The Pesky Provinces are ignoring Imperial Will!

  13. Veritas Omnia Vincit says:

    Is anybody really surprised that this administration is making this an issue? That’s what they do, they escalate the level of confrontation in areas where they lack authority as an exercise to take power and consolidate it for future regimes. They do not hold anyone in their own power group accountable for egregious dereliction of duty or outright malfeasance in office but they want to force their world view on the rest of us whether we agree or not, whether it’s legal or not, whether it’s right or not.

  14. Curmudgeon7 says:

    Title 32 (aka ADSW)does indeed count as active duty towards retirement. If you are on Title 32 orders in excess of 30 days you now get a DD214. Big Army let me use it as part of my time towards my active duty retirement using the Army’s sanctuary program. It also counts for retirement points in the reserve system.

  15. Hondo says:

    Stacy0311: National Guard Title 32 duty does not count as service credible towards Active Duty retirement (e.g., 20 years active service). It does, however, appear to count for retirement for Reserve/National Guard pension purposes. See:

    http://myarmybenefits.us.army.mil/Home/Benefit_Library/Federal_Benefits_Page/Retired_Pay.html?serv=150

    Not positive about state active duty pursuant to a governor’s call-up.

  16. rb325th says:

    @ Hondo, my point is just that. The federal government has some say, but it does not have control over all aspects of the Guard. The Guard is primarily State Controlled and are subject not just to Federal Law but State Law. Seeing as there is no federal law regarding marriage, we have one hell of a legal question here. Can the Feds disregard the 10th Amendment and Demand that States give benefits to married couples who do not meet the State law requirements?
    Every State has laws regarding Marriage and damned few of them are identical. Age of consent, relationship status, etc…

  17. martinjmpr says:

    I don’t think this is actually a 10th Amendment issue. AGR members are on active duty and even the technicians (dual-status non AGRs) are Federal Civilian Employees most of whom are in the General Schedule (GS) pay grades. I don’t actually know how much of the cost of NG troops is even borne by the states, my recollection was that most of the training and equipment was paid for with federal $$ from the DoD.

    Given that ID cards are issued by Federal employees and confer Federal benefits, I don’t think the state has the authority to decide who gets one and who doesn’t.

  18. Hondo says:

    rb325th: different argument, amigo. You originally brought up the benefits for ARNG vice active duty/Army Reserve issue.

    Regarding benefits questions: if they’re Federal benefits (such as Commissary privileges and/or access to a Federal military installation), then yes – the Federal government can indeed tell states who qualifies. And as martinjmpr noted, if it’s a Federal ID card, the Federal government can set the rules for who gets one and who doesn’t. Can’t say I’m familiar with what type of ID family members of National Guard personnel get. I know that Federal Reservists can request dependent IDs (not the same as active/retiree dependent IDs), but I don’t know if the same is true of the Guard.

    The argument that states have different laws regarding marriage is true but irrelevant here. Federal entitlement eligibility is in general controlled by the Federal government. And since the SCOTUS has ruled same-sex married couples are entitled to Federal benefits, the states can’t use state law to prohibit that. There’s this little thing called the Supremacy Clause of the Constitution that prevents that.

    I’m not a supporter of gay marriage – show me an example of a successful society that’s based on homosexuality and I might reconsider. But as far as Federal benefits go, it’s now established law.

  19. Hondo says:

    martinjmpr: that’s true if the documents in question are Federal documents. I don’t know if family members of Guard personnel not serving on Federal active duty get a state-issued or a Federal ID. If it’s the former, the state might well be on firm legal ground to say, “No, that’s against state law.” If it’s a Federal ID, then the Pentagon can tell them, “Don’t care, do it any way or we’ll fire or withdraw recognition from anyone who refuses.”

  20. 2/17 Air Cav says:

    Some people may think that the Supreme Court recently established gay marriage as a Constitutionally protected union. It isn’t and they haven’t. States remain free to legalize gay marriage or not. What the Supreme Court did was to advance the gay marriage goal by declaring (5-4) that a denial of Federal benefits to gays who are legally married to one another is unconstitutional. In other words, no state is required to do a damn thing under current law. In the matter of the NG, I’m guessing, the states who have refused to issue ID cards to gay spouses are worried that, by doing so, they will violate their own Constitutions and, thereby, open a legal argument that the state has recognized gay marriage. (There would clearly be a Supremacy Clause issue HAD the Supremes recognized gay marriage as constitutionally protected right.) I’m also guessing that because non-Federalized NG troops are employees of the state, the Feds cannot legally issue the ID cards to the affected gay spouses. Otherwise, that would certainly be the easiest and simplest way to have avoided the matter or resolved it.

  21. Hondo says:

    2/17 Air Cav: the Supremacy Clause would indeed prohibit the states from disallowing Federal benefits due to a conflicting state law, though as you note (and I also noted above) it would not prohibit the states from refusing to issue state ID documents in contravention of state law.

    Where the situation gets murkier is if the Federal government has an agreement/arrangement with the states that allows state employees (civilian or uniformed Guardsmen) to issue Federal ID documents on behalf of the Federal government. In that case, a state employee is arguably acting as a temporary agent of the Federal government in order to do Federal business. (If they’re dual status technicians or uniformed members of the Guard, you can also argue that they’re serving temporarily on inactive duty in a Federal capacity while doing so). In such a case, I believe the Supremacy Clause is also applicable.

    That seems to be the case here, as the ID used by both the National Guard and Federal Reserves for family members appears to be the DD Form 1173-1 (it’s similar to the old “red” Reserve Component ID card). Since that’s a Federal form used for the purposes of Federal benefits and entitlements, I’d guess the Federal government has the final call on who qualifies to receive it.

    There’s also the possibility that the DoD could threaten to order the State AG of each of those states temporarily into Federal service and then lawfully order them to comply with DoD policy, and prosecute them for failure to follow a lawful order if they refused. George Wallace found out the hard way that the Federal government has such authority when JFK Federalized certain elements of the Alabama ARNG during his “stand in the schoolhouse door” stunt in 1963.

  22. Jason says:

    Having served in the National Guard, my wife gets a dependent ID card. It is pink colored and says dependent on it.

  23. 2/17 Air Cav says:

    @21. I cannot imagine states saying, “Hey, this is a Supremacy Clause issue and we know we have no choice BUT we’ll defy the Federal law anyway.” Oh, I know it wouldn’t be the first time but, quite frankly, I can’t see that in this instance, if for no other reason than the matter affects a tiny number of people, not just Natioanl Guard and not just gay National Guard but gay National Guard in a same-sex marriage. The juice wouldn’t be worth the squeeze unless there were more than mere stubborness at stake.

  24. Mark E says:

    So … 9 States aren’t going to follow the dictat, while the regime claims that 45 others have.

    Which 3 states that obama thinks exist haven’t decided yet?

  25. OWB says:

    Things change all the time concerning what things are open to reservists/guardsmen all the time, but when I retired almost 10 years ago, our ID cards were clearly marked as reserve force and we did NOT have free access to AD facilities. My retired ID card just says “Retired” and I now have free access to commissaries etc where I did not previously have access unless on AD orders or AD long enough to be issued an AD ID card.

    We have cycled through periods when we had zero access to exchanges and such and periods where if we showed a pay stub with ID card we could access some facilities. Never made much sense, but they just did what they wanted when they wanted to do it.

    I agree that had I wanted to be permanently on AD, I should have enlisted AD. On the other hand, it made for some very silly situations – like those times at the end of a duty day when some people got to purchase cheap beer at the convenience store and some did not. And the time some of us had to compare ID cards to figure out who could go buy the COL the booze for his TDY trip.

  26. Hondo says:

    Mark E: the quote says “states and other jurisdictions”, not “45 other states”. While there are indeed only 50 states, there are 54 (9 + 45) distinct National Guard entities.

    Each of the 50 states has a National Guard entity. So does DC. The US territories of Puerto Rico, the Virgin Islands, and Guam also have a National Guard.

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