(C) Daily Kos
This story was originally published by Daily Kos and is unaltered.
. . . . . . . . . .



Ukraine: My proposal for a California National Guard Lend/Lease. [1]

['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.']

Date: 2023-12-14

With Republicans holding up critical defense aid to Ukraine, a common question or suggestion is does the US have alternative methods of sending support to Ukraine. While there may be more straightforward methods I have yet to uncover, one that appears to exist and requires no new legislation, at least at the national level, would be the State of California starting up lend/lease with Ukraine. I want to make clear this program does not exist. I am proposing the Biden administration and California look into making it happen, and there are some potential problems with it I have yet to solve.

The basic plan would be as follows:

Get the California National Guard the required materials. There are a couple of routes for this.

Use California’s existing training relationship with Ukraine as a conduit for material transfer.

When they get their act together, the Federal Government reimburses California for costs incurred, but California needs to be prepared to foot the bill just in case.

Getting the materials to California should be straightforward. As the code below shows the President and Secretary of the Army can authorize weapon transfers to National Guard units. I’m not familiar with what appropriations may be available to enable a large transfer of materials. If nothing appropriate is on the books, then we’ll need to jump to the next block of US code. Before we jump, of note is subsection (c ) where it stipulates new weapon type transfers “shall be without charge against appropriations for the National Guard.”

Also of note is subsection (d) where the equipment must make provision for the protection and care of such equipment. As the Secretary of the Army determines what is satisfactory, this may or may not be an issue, but let’s assume it won’t be.

32 U.S. Code § 702 - Issue of supplies (a) Under such regulations as the President may prescribe, the Secretary of the Army and the Secretary of the Air Force may buy or manufacture and, upon requisition of the governor of any State, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands or the commanding general of the National Guard of the District of Columbia, issue to its Army National Guard and Air National Guard, respectively, the supplies necessary to uniform, arm, and equip that Army National Guard or Air National Guard for field duty. (b) Whenever the Secretary concerned is satisfied that the Army National Guard or the Air National Guard, as the case may be, of any State or Territory, Puerto Rico, or the District of Columbia is properly organized, armed, and equipped for field duty, funds allotted to that jurisdiction for its Army National Guard or Air National Guard may be used to buy any article issued by the Army or the Air Force, as the case may be. (c) Under such regulations as the President may prescribe, the issue of new types of equipment, small arms, or field guns to the National Guard of any State or Territory, Puerto Rico, or the District of Columbia shall be without charge against appropriations for the National Guard. (d) No property may be issued to the National Guard of a State or Territory, Puerto Rico, or the District of Columbia, unless that jurisdiction makes provision, satisfactory to the Secretary concerned, for its protection and care.

If there are no appropriations available to transfer the needed quantity of materials to the California National Guard we can look to 32 U.S. Code § 703 (below) which allows for the purchase by the State National Guard of supplies by States from the Army or Air Force. The California State Budget for 2023/24 has room for billions of dollars in purchases (but as folks point out in the comments the budget is in deficit so getting the votes may be hard). Obviously this method would require either state legislature approval or action by Governor Newsom if applicable emergency or budgetary measures exist. California couldn’t handle all $60 billion on its own but hopefully this would be a temporary measure and/or other states could participate.

32 U.S. Code § 703 - Purchases of supplies by States from Army or Air Force (a) Subject to the approval of the Secretary of the Army, any State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands may buy from the Department of the Army , for its National Guard or the officers thereof, supplies and military publications furnished to the Army, in addition to other supplies issued to its Army National Guard. On the same basis, it may buy similar property from the Department of the Air Force . A purchase under this subsection shall be for cash, at cost plus transportation. (b) In time of actual or threatened war, the United States may requisition for military use any property bought under subsection (a). Credit for the return in kind of property so requisitioned shall be given to the State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands from which it is received. (c) Proceeds of sales by the Department of the Army and the Department of the Air Force under this section shall be credited to the appropriations from which the property was purchased, shall not be covered into the Treasury, and may be used to replace property sold under this section.

The California National Guard has had an existing mission to train Ukrainian soldiers since 1993. I couldn’t find the legal authorizations explicitly listing the exact nature of this mission. If anyone has it, please send it to me. The details will matter if the training mission is broadly or narrowly worded. A narrow wording might block this avenue. A broad wording would allow the California National Guard, under Commander-in-Chief Gavin Newsom’s authority, to transfer equipment to Ukraine for the purposes of on the job training. Due to Ukraine being an active war zone, the trainers would teach virtually.

We do run into a potential problem with 32 U.S. Code § 710, particularly subsection (a). Equipment getting used by Ukraine would be technically the property of the United States. While the recent lend/lease act got around this in some manner, it’s unclear whether California could Lend this material on its own and it’s unclear whether Ukraine using material lent to it by California would somehow qualify as an act of war by the US against Russia. My hunch is there is a way around this, but I haven’t found it just yet. If you know of applicable regulations please let me know. It is unclear to me whether a purchase under 32 U.S. Code § 703 (a) as listed above being a “sale” supersedes 32 U.S. Code § 710 (a) or not.

32 U.S. Code § 710 - Accountability for property issued to the National Guard (a) All military property issued by the United States to the National Guard remains the property of the United States. (b) The Secretary of the Army shall prescribe regulations for accounting for property issued by the United States to the Army National Guard and for the fixing of responsibility for that property. The Secretary of the Air Force shall prescribe regulations for accounting for property issued by the United States to the Air National Guard and for the fixing of responsibility for that property. So far as practicable, regulations prescribed under this section shall be uniform among the components of each service. (c) Under regulations prescribed by the Secretary concerned under subsection (b), liability for the value of property issued by the United States to the National Guard that is lost, damaged, or destroyed may be charged (1) to a member of the Army National Guard or the Air National Guard when in similar circumstances a member of the Army or Air Force serving on active duty would be so charged, or (2) to a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands when the property is lost, damaged, or destroyed incident to duty directed pursuant to the laws of, and in support of the authorities of, such jurisdiction. Liability charged to a member of the Army National Guard or the Air National Guard shall be paid out of pay due to the member for duties performed as a member of the National Guard, unless the Secretary concerned shall for good cause remit or cancel that liability. Liability charged to a State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, or the Virgin Islands shall be paid from its funds or from any other non-Federal funds. (d) through (f) ...

But it does segue into another possible concern with a potential constitutional violation. The Congressional Research Service (CRS) has a report on the Constitutional Limits on States’ Power over Foreign Affairs. It’s worth a read if you’re a policy or history junkie. But to sum up, Article I section (10) of the constitution puts foreign affairs directly in the hands of the Federal Government. Clause 3 (the Compact Clause) requires a congressional approval for a state to make an agreement with a foreign power. Obviously we’re trying to avoid the need for congressional approval under the current situation so we need to find a legal way around this.

In Holmes v. Jennison the Supreme Court ruled in 1840 that Clause 3 covers ALL agreements between a state and a foreign government. However, in practice very few agreements even request congressional approval and according to the CRS later rulings have narrowed the scope of Holmes v. Jennison. The CRS also points out:

In a 1968 decision, Zschernig v. Miller, the Supreme Court described another constitutional principle, called the dormant foreign affairs doctrine or foreign affairs field preemption, which can limit states’ power to act on the global stage.

Obviously the transfer of weapons to the control of a foreign power would trigger a challenge on this point. And this is where we come back to the authorizing documents of the California National Guard to train and work with Ukrainian soldiers. If the document is worded broadly enough Ukraine using training materials may be allowable as having already been authorized by the federal government.

Such a proposal may eventually prove unworkable in the ways I point out (or others that I miss). But it is obviously preferable to the “my unit Training in Poland had all 100 Bradley’s stolen” scenarios put forward (most of which are obviously not serious). In those scenarios individual service members would be taking on significant personal liability to the point of millions or billions of dollars. We can’t ask people in our military to make dishonest decisions as a policy matter. But my proposal, if we can plug the holes, may allow for a perfectly legal transfer of material assuming the State of California is willing to cooperate. I imagine Gavin Newsom would be willing to step up in this manner, and the liberal legislature would need to sign on. Which I think they would, but is more of a question.

In conclusion, I just want to reiterate that this is simply my own proposal and as far as I can tell not being pushed by anyone else. If folks have access to the CA National Guard authorization for training in Ukraine or know of other regulations which could either help or hurt this plan I would love to hear about them. But hopefully we can sleuth out a legal means of continuing at least some aid to Ukraine.

[END]
---
[1] Url: https://www.dailykos.com/stories/2023/12/14/2211632/-Ukraine-My-proposal-for-a-California-National-Guard-Lend-Lease?pm_campaign=front_page&pm_source=more_community&pm_medium=web

Published and (C) by Daily Kos
Content appears here under this condition or license: Site content may be used for any purpose without permission unless otherwise specified.

via Magical.Fish Gopher News Feeds:
gopher://magical.fish/1/feeds/news/dailykos/

You are viewing proxied material from magical.fish. The copyright of proxied material belongs to its original authors. Any comments or complaints in relation to proxied material should be directed to the original authors of the content concerned. Please see the disclaimer for more details.