SIOUX FALLS, S.D. (KELO) — This story has been updated with comments from Rep. Aaron Aylward.


A new bill introduced by Republican Rep. Aaron Aylward seeks to restrict the deployment of the South Dakota National Guard outside of the state.

The bill leaves in place the current statute allowing the governor to order movement of the National Guard, but adds two additional sections.

The first would prohibit the National Guard or any of its members from being released to serve in conflicts in foreign nations or performing hazardous service related to such a conflict, unless Congress has declared was on another nation.

The second section would state that no member of the Guard could be released for law enforcement, repelling an invasion, or suppressing an insurrection unless the U.S. Congress has officially called on it.

Governor Kristi Noem deployed some South Dakota National Guard troops to the border between Texas and Mexico for 70 days two years ago.

KELOLAND News spoke with Aylward Thursday afternoon, with the Harrisburg Republican offering further examination of the bill.

The first thing discusses was a possible amendment to the bill, which goes far in the way of helping to clarify the purpose of the bill. This amendment would simply change the title of the bill from an act to “require an official declaration of war or other Congressional action before the South Dakota National Guard may be deployed outside of the state” to “require an official declaration of war or other Congressional action before the South Dakota National Guard may be deployed by the federal government.”

“I think there was just a mix up as far as to whether or not they’d still be ordered out of South Dakota,” Aylward said.

Aylward says the main point of the bill is to consolidate power over South Dakota National Guard deployments with the Office of the Governor and the U.S. Congress.

“The main focus of the bill is to make sure the governor, no matter who it is, is still the commander in chief,” Aylward said.

Aylward sought to address confusion over whether the guard could be called out of state for anything other than a declaration of war, clarifying that under his bill, the governor would still have the authority to activate the Guard to head out of state.

Were this bill to pass, the Governor of South Dakota would maintain control over the state’s National Guard unless the U.S. Congress called them up through either the War Powers clause (11) of the U.S. Constitution, or the Calling Militias (15) clause, both in Article 1, Section 8 of the U.S. Constitution.

Aylward said this bill arose in part due to concern about the federal government’s use of AUMFs (Authorization for Use of Military Force) to deploy troops. An AUMF allows the federal government to deploy troops in combat without a declaration of war. Some, like Aylward, say this is an abdication of the duty by Congress.

“It’s just a way to kind of get things back to running in a constitutional manner when it comes to our military,” Aylward said. “If something arises overseas and there’s a need [Congress can] absolutely still call up who you need to call up — we just want it to be done in a constitutional manner.”

Alyward says there have been instances in the past where AUMFs have been used to send troops to combat, listing conflicts in Iraq, Afghanistan and Djibouti as times where troops, including National Guard forces, were deployed without war having been declared.

The last time Congress officially declared war was during WWII. Aylward says that with his bill in place, the federal government could still send Guard troops overseas, Congress would just have to “do it the right way,” Aylward said.

Speaking to the 3rd portion of his bill, Aylward also elaborated on the restrictions it would put on domestic actions by the Guard.

One of these domestic actions for which Congress would need to invoke the militia clause is the suppression of an insurrection. Asked how this would apply to a situation like that of the January 6, 2021 attack on the U.S. Capitol, where Congress may be unable to take formal action, Aylward said that the governor would still have power to send troops voluntarily to assist the federal government.

Aylward does not expect his bill to pass. “It’ll get killed in committee,” he said with a laugh. “It comes down to federal funding. Alyward pointed out concerns that were a Governor refused to send troops ordered by the federal government without a declaration of war or call for a militia, there could be a reduction in Guard funding from the federal government.

That funding however could not be fully cut off, according to Aylward, citing a pair of court cases. “That argument from the other side doesn’t 100% hold up.”

Aylward’s bill has not yet been heard by a committee and will get its first hearing before the House Military and Veterans Affairs Committee on January 30.