The Constitutionally Prescribed Role of States in Protecting the Nation's Security

Abstract

Lost in the debates over the respective powers of Congress and the President in foreign affairs has been any recognition of the role that states play in the national security arena. Although states currently exercise almost no direct authority, such was not the case at our Founding. Indeed, as a matter of necessity, states played a critical role in defending the new nation, as they had under the Articles of Confederation. The Constitution in Article I enshrines the role of the states in national security by authorizing Congress to agree to state compacts with foreign entities, to permit states to have standing armies, and to entrust supervision of militias to the states. Congress tasked the states with significant functions thereafter, and that lost history strongly suggests that, at least according to the framework at the Founding, Congress can exercise substantial discretion in deciding how best to pursue national security measures, including placing some responsibilities outside the President’s direct control.

Keywords: separation of powers, foreign affairs, federalism