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Ukraine: Any US State can purchase materials from the DoD and donate/lend it to Ukraine [1]
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Date: 2023-12-15
Due to recent Republican delays with authorizing most of the aid to Ukraine I started looking for other legal means by which the US could get significant aid to Ukraine which wasn’t held hostage by the Republicans. My first attempt I wrote up yesterday in this article. No need to read that one as I will be repeating the relevant points in this one.
Because the topic will get into the weeds of federal code I will first write my TLDR without Jargon or pointing to code and then after that walk through the code for those wanting to play along at home. Those who don’t enjoy reading federal code can skip that part. However, if you’re going to argue with me regarding Article I Section 10 please read the relevant bits below as well as the “Constitutional Limits on States’ Power over Foreign Affairs” article. Giving flat statements along the lines of “Congressional approval = legal, no congressional approval = illegal” may look good based on the constitution alone but bears little resemblance as to how the section is applied in practice.
The basic plan is as follows (the TLDR):
A State legislature votes to put the following plan into action and appropriates the funds to do so.
A State, using that State’s own funds, can request to purchase DoD (Department of Defense) materials (so tanks and the like) for the State’s own National Guard.
The State then either donates or lend/lease these State owned items to Ukraine.
This all must be done with the full knowledge and consent of DoD and the State Department that the specific goods being purchased will be transferred to Ukraine. It is critical this part is written into whatever state act is passed to make this happen.
And that’s really it. Obviously different states will be more or less likely to make this happen based on their local politics and budgetary realities. And this should also really only be done by the Feds anyway. But we have no idea how long Congressional Republicans will delay this aid and every day of delay means Ukrainians killed who didn’t need to be killed because they lacked the proper supplies to defend themselves (and us!) from Russia. Time is of the essence. If a state can make this happen, then they should help in any way they can. I recognize there is no guarantee a State legislature will be any faster or easier than the US Congress. But again, we have to try!
So please let your State Representatives know they should support Ukraine in this way. If you want to personally support Ukraine you can donate directly to the Ukrainian government at u24.gov.ua.
The Policy Wonk bit full of references to US code.
This plan only works with state funds and we’ll see why in a bit. I originally tried to run this through the State Partnership Program and I will have a section as to why that route didn’t end up working. So first, a State needs to quickly get a hold of things generally reserved for the US military such as M1 tanks, Bradleys, M109 Paladins self-propelled artillery and all that sort of thing. By means of 32 U.S. Code § 703 subsection (a) States can purchase military equipment for their National Guard.
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.
Because of 32 U.S. Code § 710 subsection (a) the state can not use equipment provided through 32 U.S. Code § 702 subsection (a) for the purposes of this plan. 702 (a) is the normal way supplies are sent to the State National Guard by way of congressional appropriation bills.
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.
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.
By looking at the Department of Justice Criminal Resource Manual we get clarification that goods purchased through 32 U.S.C. § 703 become property of the state and are not subject to 18 U.S.C. § 641 or 32 U.S. Code § 710.
CRM 1500-1999 1647. Protection Of Government Property -- National Guard Property Under 32 U.S.C. § 710(a), "all military property issued by the United States to the National Guard remains the property of the United States." The term "military property" should be broadly construed to include all manner of property used or consumed by the military and not simply "military-type" items. See 32 U.S.C. § 105. See also 32 U.S.C. § 101(13); Northern Pacific Railway Company v. United States, 330 U.S. 248, 254 (1947). Cases involving property in the possession of the National Guard furnished by the United States under 32 U.S.C. § 702 or a similar provision would come under 18 U.S.C. § 641. Property purchased by the National Guard with its own funds pursuant to 32 U.S.C. § 703 or § 705 would be the property of the state and would not be covered by section 641. [Underline is my own — ed.]
Okay, so we’ve covered how Gavin Newsom gets to ride around in an Abrams tank wearing a funny tanker’s helmet. How do we get it to Ukraine? The State makes whatever agreement it’s going to make with Ukraine regarding the nature of the transfer, whether its a sale, loan, donation, etc…. It’s up to each state and Ukraine regarding these specifics.
In whatever provision or Bill the state uses to purchase Gavin’s photo op (which could never go wrong), we need to include language that explicitly states such purchase is done with the full knowledge and consent of DoD and the State Department as to where the purchased materials are being further sent to, i.e. The Executive Branch knows tanks (or whatever) are being sent to Ukraine. This is critical to satisfy Article I section 10 of the Constitution as it is commonly employed.
The relevant clauses of Article I section 10 are laid out below. Any plain text reading of the article is pretty much game-over for my idea. It doesn’t really get any clearer than what you see below. But thankfully for my idea interpreting the constitution is a crazy messed up world where the framers are basically constantly gaslighting us. These seemingly straightforward articles are frequently interpreted as not requiring consent of Congress in MOST cases.
Article 1 Section 10 Powers Denied States Clause 1 Proscribed Powers No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
Clause 3 Acts Requiring Consent of Congress No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
Per this report from the Congressional Research Service entitled “Constitutional Limits on States’ Power over Foreign Affairs” states frequently act without congressional approval. From the report:
Despite this sweeping language, states and other subnational entities (e.g., cities and counties) play a more prominent role in international relations than may be generally recognized. States have offices overseas and send trade and diplomatic delegations to foreign countries. They have imposed economic sanctions for human rights abuses and military aggression—most recently on Russia for invading Ukraine. States regularly enter into written pacts with foreign governments on issues ranging from trade to the environment to tourism. Some of these international pacts address potentially sensitive subjects, such as border security with Mexico and technology transfers with the People’s Republic of China (PRC). A recent rise in pacts with PRC-based bodies led U.S. intelligence officials to warn state and local governments about PRC efforts to exploit its relationships with subnational governments to promote its geopolitical interests in the United States.
And from the Missouri Law Review:
Taken together, this history demonstrates how remarkably few foreign compacts Congress has approved. One might infer from this some congressional hostility to agreements between U.S. states and foreign governments. The empirical evidence, however, does not support that assumption. Congress has refused its consent to foreign participation in a compact exactly once - in the 1968 Great Lakes Basin Compact (and even then only at the behest of a U.S. State Department concerned about conflicts with U.S. treaty obligations). Nor has Congress ever challenged a U.S. state's agreement as a prohibited treaty.
So we can see that Congress has intervened once (at the behest of the executive) with State agreements with foreign countries while ignoring hundreds of other contracts. In practice, Congress does not interfere with state contracts with foreign powers. What will get the attention of the courts and Congress is if a State makes an agreement which fundamentally shifts the power between the States and the Federal Government. From the Missouri Law review article:
In 1893, Justice Field held in Virginia v. Tennessee that Congress did not need to consent affirmatively to state compacts, but could do so implicitly through actions that reflected the compact's existence. At the same time, in dicta,Field suggested that Article I, Section 10's reference to "any compact or agreement" did not mean all state agreements, but only those that involved "the formation of any combination tending to the increase of political power in the states, which may encroach upon or interfere with the just supremacy of the United States."
Part of the objection to the Confederacy in the Civil War was a violation of Article 1 Section 10 when the Southern States usurped the powers of the Federal Government in making treaties amongst themselves and with foreign powers that diminished the power of the Federal government. More recent challenges were based on States making a policy which directly contradicted Federal Foreign Policy.
So as long as the contracts of States sending military aid to Ukraine follow Federal Foreign Policy and better yet, give the Feds effective veto power, then there would be no normal challenge in the courts based on Article 1 Section 10. The States would be assisting Federal foreign policy and therefor not usurping power from the Federal Government.
Of course we do not live in normal times. Someone will be sure to challenge this interpretation and it is quite possible that 200 years of practice will be ignored by the current set of Justices with a strict interpretation, but only in this partial case due to reasons. All the red state agreements with foreign powers can stand because reasons.
I can’t control the Supreme Court, but other than their interference if your State wants to send an F-16 to Ukraine as a Holiday Gift, they can do so.
Why doesn’t the California state partnership program with Ukraine work?
The folks at National Guard were quite helpful in pointing to the US Code and Regulations that govern the State Partnership Program (SPP) through which the California National Guard has been working with Ukraine since 1993. The SPP is in section 342 of Title 10 and follows DoD Instruction 5111.20. The US code caps any assistance to the partner country (in our case Ukraine) through this program at $10 million of non-lethal aid (other than ammunition to be used for training purposes). So it is not a backdoor foreign aid bill and someone in 1993 anticipated me in 2023.
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