Could Joe Biden countermand Noem's deployment of the National Guard?

The President of the United States and the Dept. of Defense have ultimate authority over the National Guard.  The Governor of the state has full command of the Guard within the state, but must conform to actions approved by the President and Dept. of Defense.

Noem's deployment of South Dakota National Guard personnel to Texas places them under the command of civilian authorities, and in effect removes them from the Department of Defense chain of command in her thinking.  When the National Guard is deployed  in actions outside of their home states, it is usually done at the behest of the President or through designated channels within the Department of Defense.  Some states are responding to the Texas governor's plea for help by sending him state law enforcement officers.  Noem makes clear that she is joining in some retaliatory acts against Joe Biden.  She apparently regards her actions as a transaction between her and the governor of Texas.  A reading of the applicable laws indicate that she is acting beyond her authority.

In particular is the clause that states, "No unit or organization of the South Dakota National Guard and no unit of any branch or arm of the service may be maintained in the state, except as authorized by the President of the United States and recognized by the secretary of defense."(SDCL33-3-3) 

Despite the fact that the deployment is  being paid, at least in part, by a donation, the Guard still operates under federal authority.  The President or someone in the Dept. of Defense chain of command seems to have the basis for courntermanding the deployment and pursuing legal action against it, if they so choose.

Here are the state laws that apply to this instance:

South Dakota Constitution

Article XV§3. Conformity to federal regulations.

The Legislature in providing for the organization of the militia shall conform, as nearly as practicable, to the regulations for the government of the armies of the United States.

State Codified Laws

33-2-6. Circumstances under which militia may be put in actual service.

The Governor may order out from time to time, for actual service, as many of the militia as necessary to execute the laws, preserve order, suppress insurrection, repel invasion, and provide disaster relief assistance.

33-3-3. Composition of military units--Authorization for units by President of United States.

The military units of the National Guard shall be composed and organized, except as otherwise specifically provided, the same as the armed forces of the United States subject in time of peace to such general exceptions as may be authorized by the secretary of defense. No unit or organization of the South Dakota National Guard and no unit of any branch or arm of the service may be maintained in the state, except as authorized by the President of the United States and recognized by the secretary of defense.

33-3-12. Applicability of federal regulations.

The South Dakota National Guard is subject to this title and all orders authorized by this title and rules promulgated pursuant to this title in accordance with the provisions of chapter 1-26. In all matters not specifically covered by this title or by such orders or rules, the National Guard is subject to the applicable regulations of the Department of Defense governing the organized militia and the National Guard, to the Uniform Code of Military Justice, and to the applicable regulations of the armed forces of the United States.

33-3-11. Orders issued by governor--Federal requirements.

The Governor may issue such orders as may be necessary for the government, organization, and discipline of the militia and of the national guard, as provided for in this title or as provided by the rules and regulations for the armed forces of the United States or as issued by the secretary of defense.

33-9-1. Authority of Governor to order active service--Application of other public officials.

In case of war, insurrection, rebellion, riot, invasion, resistance to the execution of the law of this state or of the United States, or in the event of public disaster or upon application of any marshal of the United States, or the mayor of any first or second class municipality or any sheriff in this state, the Governor may order into active service all or any portion of the national guard.

33-1-8. General staff--Composition and responsibilities--Assistants.

The general staff shall include such staff sections as are currently authorized by the Department of Defense in the table of organization for a state headquarters detachment. The responsibilities of the several staff sections and the duties of the several staff officers and administrative assistants shall be such as are prescribed by the regulations, order, or direction, of the Governor or of the adjutant general, and in accordance with the duties of like officers under the regulations of the armed forces of the United States.

  

Can the National Guard be deployed for partisan political missions?

To Joe from Kristi and friends

Kristi Noem has made the national headlines again by one of her stunts as she purports to be a governor.  The governor of Texas put out a call for law enforcement help along the Mexican border, and Noem-skull answered it by deploying 50 South Dakota National Guard members to go to Texas.

Just what law enforcement roles the guard will or can serve is unclear, but Noem was very clear about her purpose for sending them.  She is sending them to give Joe Biden a fifty-man middle-finger salute.  Her announcement stated: 

“The Biden Administration has failed in the most basic duty of the federal government: keeping the American people safe.The border is a national security crisis that requires the kind of sustained response only the National Guard can provide.  We should not be making our own communities less safe by sending our police or Highway Patrol to fix a long-term problem President Biden’s Administration seems unable or unwilling to solve.  My message to Texas is this: help is on the way.” 

The emphasis on the political motive for deploying is undergirded by the fact that the deployment is being paid for by a billionaire Trump supporter who called Biden an idiot.  

The ostensible law covering the deployment is the National Guard Mutual Assistance Compact  which permits and sets the terms for deployment among the states.  However, the forthright statement of purpose by Noem and billionaire Willis Johnson raises the question of whether the Guard can be deployed for a clearly partisan political purpose.  And may the Guard act as civilian law enforcement agents?  

A statement by an officer for the Illinois Guard poses the issue:

We’re not civilian law enforcement. And so we can’t really be used as an auxiliary police force. And we legally cannot make arrests. We can hold somebody for a bit until a fully licensed civilian police officer can come in and arrest that person. But if we’re detaining someone, that should be for a very short period of time. We’re not trained to investigate crimes. We’re really not trained in community policing.

The announcement from the Governor's office is printed below.

June 29, 2021

PIERRE, S.D. – Today, Governor Kristi Noem announced that up to fifty South Dakota National Guard troops are being deployed to Texas to help the secure the border between the United States and Mexico. This is in response to Texas Governor Greg Abbott’s request for help to respond to ongoing violations of state and federal law by illegal aliens crossing the unsecured border.

 

“The Biden Administration has failed in the most basic duty of the federal government: keeping the American people safe,” said Governor Kristi Noem. “The border is a national security crisis that requires the kind of sustained response only the National Guard can provide.  We should not be making our own communities less safe by sending our police or Highway Patrol to fix a long-term problem President Biden’s Administration seems unable or unwilling to solve.  My message to Texas is this: help is on the way.” 

 

The initial deployment to the border will last for between 30 and 60 days. South Dakota Adjutant General Jeff Marlette and the South Dakota Department of the Military are working with their counterparts in Texas to finalize the details of this mission. The deployment will be paid for by a private donation.

 

For operational security reasons, specific names of units, number of members, and mission specifics will not be released.

 

Why the GOP doesn't want the Jan.6 insurrection investigated

In reaction to the invasion of the Capitol on Jan. 6,  Republicans have marshaled a massive resistance to any inquiry about it.  Some people may be puzzled by their obstinance, but most people recognize it as an effort to cover a lot of vulnerable ass. What is not clear to most, however, is how much ass there is to cover and how  vulnerable it is.

The first indication of what is so bothersome in the GOP mentality about the incident was the objection to calling the invasion an insurrection.  Some Republican congress people tried to gaslight Americans into thinking that what they witnessed through the video clips was just a rally of Trump supporters.  Some political scientists and Constitutional scholars  have pointed out a reason why the GOP is so desperate to misportray what happened that day.

They want to avoid the word treason at all costs. They do not want an investigation which might--most likely will--conclude that the invasion of the Capitol was an act of treason.  Some historians point out that it is the most serious internal attack against the government in the nation's history. It was not a matter of partisans squaring off in a street riot.  It was an attack on the nation itself in an attempt to overturn the  most essential function of democratic governance, the vote of the people.  The mob intended to obstruct the official tally of the vote from the 2020 election by a joint session of Congress.  

There are grades of rebellion, as will be shown below.  Treason is the most serious and is included in the Constitution.

Article III, Section 3, Clause 1:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The other forms are covered by statutes  The problem, is that the Capitol invasion can be interpreted as an act of war and there are a number of GOP members, including Donald Trump, who gave the invaders aid and comfort.  As far back as 1807, John Marshall, chief justice of the Supreme Court noted that some crimes against the state might not have "ripened into treason."  Such is the case for many who participated in the insurrection of Jan. 6, and Marshall charged the legislature with writing laws to deal with those instances.  The resulting laws are cited below.

But the hard facts surrounding the insurrection are that it was aimed at overthrowing the most essential act of our Constitutional government, registering the vote of the people for a president.  That insurrection was violent and resulted in deaths and destruction of property in acts that can easily qualify as treason.  Those people who incited and condoned the insurrection gave aid and comfort to those who committed the acts.

An intensive investigation into the insurrection could result in those implicated in it with charges of treason or the other crimes against the state.  That is why the GOP does not want a detailed investigation.  Many of their cohorts could be charged with crimes.

Here are the crimes for which they can be charged:

§2385. Advocating overthrow of Government

Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government; or

Whoever, with intent to cause the overthrow or destruction of any such government, prints, publishes, edits, issues, circulates, sells, distributes, or publicly displays any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or attempts to do so; or

Whoever organizes or helps or attempts to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any such government by force or violence; or becomes or is a member of, or affiliates with, any such society, group, or assembly of persons, knowing the purposes thereof—

Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.

If two or more persons conspire to commit any offense named in this section, each shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.

As used in this section, the terms "organizes" and "organize", with respect to any society, group, or assembly of persons, include the recruiting of new members, the forming of new units, and the regrouping or expansion of existing clubs, classes, and other units of such society, group, or assembly of persons.

§2384. Seditious conspiracy

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

§2383. Rebellion or insurrection

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

§2382. Misprision of treason

Whoever, owing allegiance to the United States and having knowledge of the commission of any treason against them, conceals and does not, as soon as may be, disclose and make known the same to the President or to some judge of the United States, or to the governor or to some judge or justice of a particular State, is guilty of misprision of treason and shall be fined under this title or imprisoned not more than seven years, or both.

§2381. Treason

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.

We may survive the pandemic, but not survive Trump

The incredible story since Joe Biden took office is the revelation of what  a malevolent and contemptible wretch Donald Trump actually is.  There are many of us acquainted with Trump's history who never thought he was fit to hold the the job of president, and we attribute his attaining of that position only to a massive moral and intellectual failure of the nation.  But it turns out, there is no measure to how despicable he is.   And how far the nation has fallen.

Trump's ascent to the presidency is a symptom of the failure of American democracy.  The United States is no longer a bastion of freedom, equality, and justice.  It has relegated itself to the status of a republic that struggles with the premises on which it was founded and developed.  While Joe Biden may announce that America is back, the fact is that America has shown the world an unwholesome weakness that is now engraved into its history.

 A significant number of Americans are entranced and smitten with adulation as Trump puts on displays of juvenile petulance and malevolence.  They accept his puerile charades as leadership.  However, his depravity is much deeper than his surface displays.  It goes to the heart of a government that is supposed to function as an ethical democracy and undercuts the bond of trust necessary to operate.  Trump attempted a coup d'etat after he lost the election.   The Jan. 6 insurrection was the result of an intense effort to overthrow a duly elected government.  Trump's coup was intended to reject the certification of the 2020 election and then assume control of the government.  He tried to use the Department of Justice as his subversive force.  The acting attorney general, Jeffrey Rosen who replaced William Barr, was sent constant messages from  Trump's office with purported evidence. As Trump tried to get the department to investigate his false claims that the election was fraudulent, top officials termed his plotting "pure insanity" and rejected it.   At one point the acting Attorney General told Trump's emissaries that if they had any real evidence of election fraud, they could walk into the FBI Washington field office at any time and present it.  Sixty-some lawsuits by Trump stooges contending election fraud were dismissed because of a lack of evidence.

Both the New York Times and the Washington Post have done extensive reporting on Trump's efforts to involve the Justice Department in his efforts to overturn the election.  Legal scholars note that the GOP resists efforts to investigate the narrative leading to the insurrection because it would implicate many Trump loyalists in Congress in an act of treason.  

Trump's dishonest treachery included the Department of Disease Control as the pandemic spread through the country according to a New York Times report on the mishandling of the pandemic:

Over the summer, political appointees at the health department repeatedly asked C.D.C. officials to revise, delay and even scuttle drafts they thought could be viewed, by implication, as criticism of President Trump.

While Americans quibble over Trump's term as president, the world at large has no illusions about what kind of man he is, and what kind of jeopardy he is to democracy.  Here are the results of a world poll from the Pew Research Center: 

Trump's Republican allies wanted to sabotage government. They largely succeeded

Who would suck enough to be president of Northern State University?

 A  university could not have a worse month.  The president, who has brought $110 million worth of improvements to the Northern State University campus, suddenly resigns in what was obviously a forced resignation.  Then the state university system in which he had worked is given a national ranking as the absolute  worst in the nation.  While this is going on, some faculty on the campus are trying to instigate a piddling war over who is and who isn't "woke."  

What student with any intelligence would choose this as a college?  What professor with any competence and self-respect would want to work there?  What taxpayer who believes in higher education wants to support such a feckless institution?And why would a competent and honest administrator choose to be head of such a place?

Those are questions the regents and the administration at NSU--and all the other South Dakota regental institutions-- must face.    Some answers must  be supplied  as Northern embarks on a search for a new president.  Who but someone floundering to stay alive professionally would apply for the job as president of NSU?  A place which is earning its own reputation as floundering?

This is not  a good time for university presidents.  Colorado regents hired Mark Kennedy a few years ago to head the University in Boulder.  After being censured by the faculty, he is being given $1.3 million to leave a year before his contract is up.  He had been hired by the Republican-dominated regents as their favored candidate.  He was not favored among the faculty or the students.   Now the regents have more Democrats on board and Kennedy is on his way out.  The problem is in the rank politicalization of boards of regents.  Academics are subsumed by cheap partisan politics.  Regents act in the interests of the politicians who appoint them, not in the academic purposes of the universities. 

In the case of Dr. Tim Downs  at Northern, there has been no substantive report on the reasons and circumstances of his resignation.  There was a report in the news that his efforts to establish diversity measures on campus resulted in some legislators composing a letter telling him to either desist or resign.  There are many opinions circulating about the reasons for his leaving, but the news media and their audience seem to have little interest in determining the facts.  As a result, no qualified person of integrity and competence would ignore the political climate at Northern and take a job there.  The fallout from  bad departure dissuades the kind of people who could restore a university's integrity from taking a job there.

To restore Northern's place as a functioning university, faculty and other stakeholders would have to make an honest explanation of the circumstances of Dr.Downs' departure and then take measures to correct deficiencies of policy and procedure.

Such demonstrations of honesty and integrity will never happen within a system ranked as the worst in the nation.