Maine Legislature Debates Bipartisan Defend the Guard Bill to Prevent Casualties in Undeclared Wars

The Maine Legislature’s Committee on Veterans and Legal Affairs held a public hearing on Wednesday to consider Rep. Benjamin Hymes’ (R-Waldo) “Defend the Guard” bill to protect the Maine National Guard from deployment in undeclared overseas wars.

[RELATED: Maine Republicans Add “Defend the Guard” to Official Platform…]

“The U.S. Constitution clearly states that Congress, and Congress alone, has the ability to declare war and send our troops into harm’s way. I firmly believe the framers’ intended this to ensure that the power to wage war did not solely rest on the president,” said Rep. Hymes.

A veteran, Hymes served for 20 years in the U.S. Navy.

Hymes’ bill, LD 265, drew support from eight co-sponsors, including Rep. Bill Pluecker (I-Warren) and Rep. Sophia Warren (D-Scarborough). It would prevent members of the Maine Guard from being deployed outside the country to active duty combat zones unless Congress has issued an official declaration of war as required under the Constitution.

Under the bill, the governor would retain have the authority to deploy the Maine National Guard domestically for civil missions.

Only one person testified for the bill, while two spoke against it. In addition, some committee members, including Sen. Jeff Timberlake (R-Androscoggin), appeared hostile to the bipartisan legislation.

During his bill presentation, Hymes argued that the 2001 Authorization for Use of Military Force Act (AUMF), which delegated war powers to the president, was unconstitutional and that the guard should only be sent into combat after other military forces have been exhausted.

“24 years ago, in a moment of panic, Congress passed the Authorized Use of Military Force, surrendering its authority and consolidating its power to the White House. This dangerous concentration of power defies the constitution,” said Hymes.

Congress has formally declared war during five of America’s international conflicts, with the most recent being WWII.

He further argued that the National Guard is only meant to serve in foreign wars if other branches of the military have been depleted, though that would not be required under his bill.

Hymes highlighted similar bills that have gained traction in New Hampshire, Virginia, and Arizona, pointing out that Virginia’s bill passed through the state’s lower house with unanimous bipartisan support.

Sen. Timberlake argued against the bill while questioning Hymes, suggesting that the current system, in which the U.S. goes to war without explicit congressional approval, is not unconstitutional because of the AUMF, and that if it were, someone would already have sued the federal government over it.

“We’re suing for everything in the world down there and going to court for everything in the world. Why hasn’t somebody come to sue over this [the AUMF]?” asked Sen. Timberlake.

“If that was true, then somebody would have taken it to court to prove it’s wrong. I don’t believe that what you’re saying is true,” Timberlake added.

Under the 1973 War Powers Resolution, the president must report to Congress within 48 hours of committing the U.S. military into combat operations, and must continue updating the legislative branch at regular intervals. Since the Vietnam War, presidents have generally sought some form of congressional approval for conflicts like the first Gulf War and subsequent invasions of Iraq and Afghanistan.

Former State Sen. Eric Brakey, the current head of the libertarian Free State NH project, has been a long-time supporter of Defend the Guard policies, led the successful push to include Defend the Guard in the Maine Republicans’ official platform, and returned to Maine to support Hymes’ bill.

Brakey pointed out that, since he presented an identical bill in the 131st Legislature in 2023, the political landscape has shifted drastically with both Secretary of Defense Pete Hegseth and Director of National Intelligence Tulsi Gabbard speaking in support of Defend the Guard measures.

“For Democrats on the committee, Donald Trump is president now, and I imagine you might not want him to have unchecked power over sending our troops into war without an act of congress,” said Brakey.

Brakey argued that, under the Constitution, the National Guard may only be called forward for combat to suppress insurrection, repel invasion, and enforce the nation’s laws, but that, in reality, National Guardsmen have represented almost 50 percent of the troops on the ground in Middle Eastern wars.

Brakey’s was the only testimony in favor of the bill and was followed by the bill’s two opponents: Rep. and Maine Army National Guard Colonel Kenneth Fredette (R-Newport), opposing his party’s platform, and Maine Department of Defense Commissioner Brigadier General Diane Dunn.

Rep. Fredette argued that the Maine National Guard serves both a state and federal role and stated that the bill would prevent the Guard from fulfilling the entirety of its role and would cost the state federal funding.

“With all due respect to the sponsors of this bill, in my opinion, this bill would devastate that role and, as a result, put at risk literally hundreds of millions of dollars and risk long-term damage to our perception as a partner in our blended military structure,” said Fredette.

He claimed that, rather than encouraging Congress to formally declare any future wars, the bill would simply take Maine out of consideration and would thus lead the federal government to stop allotting assets and funds to Maine.

Brig. Gen. Dunn argued that, because Maine National Guardsmen take both state and federal oaths, the “Defend the Guard” act would violate Congress’s jurisdiction over federal military assets.

Like Fredette, she also argued that the bill could lead to a loss of federal funding.

Neither of the opponents acknowledged that Congress could simply issue formal declarations of war before deploying troops to invade foreign nations, and thus continue to use the National Guard even under the new bill.