America determined decades ago that unionizing the military was a terrible idea. Yet last month, the Biden administration’s Justice Department signaled in a court filing that National Guard troops on state active duty can organize as if they’re civilian first responders or civil servants, and members of the National Guard in Texas are now using the DOJ’s position as justification to start unionizing.

The filing arose from a case in Connecticut where the American Federation of State, County and Municipal Employees (AFSCME), one of the largest unions in the United States with 1.6 million members, sued to demand that Connecticut National Guard members on state active duty had the right to unionize during the Covid-19 lockdowns. Without the governor deploying the National Guard as a public health stopgap, AFSCME might have had more leverage to demand higher pay and more positions. The National Guard undercut their negotiating power.

Texas Guard Organizes in Response to Operation Lone Star

Following the Biden DOJ filing in the Connecticut case, some disgruntled members of the Texas National Guard are now starting to unionize as well. They cite poor conditions and unreliable paychecks while serving in Republican Gov. Greg Abbott’s large-scale response to the Biden border crisis known as Operation Lone Star. Even if, as some critics charge, Operation Lone Star is merely political theater, it’s mobilized 10,000 of Texas’s almost 19,000 Army and Air National Guard members to the border to augment the U.S. Border Patrol and Texas’s Department of Public Safety state police.

Texas law bans strikes and collective bargaining for state employees. But unions, or “associations” as they’re often called in Texas, still have clout. The effort in Texas is being led by the AFL-CIO.

In both instances, union leadership is likely motivated by membership and dues which, in turn, generate more political power to push pay and benefits for government employees higher still — a virtuous circle from the union’s standpoint.

As for the Texas border mission, Abbott and the state’s Republican leadership (with some Democrat support) describe Operation Lone Star as a necessary response to a complete breakdown in border security since Biden took office in Jan. 2021. Abbott’s opponents, including former Rep. Beto O’Rourke, who is seeking to replace Abbott as Texas’s governor, call it “a political game.” They also cite poor conditions and difficulty in getting paychecks out.

My last post before retiring from the Army National Guard was as Deputy J1 (Personnel) for the California National Guard. Hearing of poor conditions and delayed pay isn’t unusual. Unfortunately, the National Guard uses a separate pay system from the federal government for state missions and it always has issues. Poor conditions? That’s just part of the military mission.

But as the nationwide director of the Army National Guard, Lt. Gen. Jon Jensen, observed, “What may be described as a political decision can also be described as a security decision, depending on where you sit on the issue. … We can’t get caught up on whether border security is a political issue or not.”

Why Congress Banned Military Unionizing in 1978

Although the reasons may be different, the negative effects of unionizing our armed forces on military service would be the same now as they were four decades ago. In 1975, only two years after the United States eliminated the draft and went to an all-volunteer military, there was an attempt to unionize.

That effort was led by the American Federation of Government Employees, an AFL-CIO affiliate. As the military dealt with deep challenges ranging from poor morale to drug abuse, racial strife, and funding cuts in the wake of the dismal end of the Vietnam War, up to half of service members were said to be open to unionizing — and six NATO nations featured unionized troops.

But the thought of unionizing the U.S. military quickly died as public opinion and Congress considered military service a unique calling. Unlike unionized jobs where work was viewed as merely occupational, military service was a higher calling — it was distinctly honorable.

Congress was also concerned about radical leftists, like those belonging to the Students for a Democratic Society and the Trotskyite Socialist Workers Party, who organized the American Servicemen’s Union. But this union wasn’t a device for traditional workplace organizing; rather, it was a tool to organize opposition to national defense policy within the military itself.

As Congress found at the time:

“Members of the armed forces of the United States must be prepared to fight and, if necessary, to die to protect the welfare, security, and liberty of the United States and of their fellow citizens. (2) Discipline and prompt obedience to lawful orders of superior officers are essential … (3) … collective bargaining … cannot and should not be applied to the relationships between members of the armed forces and their military and civilian superiors.”

The unionization effort formally ended with President Jimmy Carter’s signature on S. 274, a bill introduced by Republican Sen. Strom Thurmond of South Carolina, in 1978. Then-Senator Joe Biden was 34 years old when he signed on as a co-sponsor of the bill to ban unionizing the military.

The law outlawed organizing any “member of the armed forces” and defined members as people on active duty or reserve component members “while performing inactive-duty training.”

But that definition doesn’t cover all forms of military service. For instance, the National Guard employs “technicians,” and many of them are unionized. These specialists, often mechanics, logisticians, or human resources staff, are paid like federal civil servants, but they work in armories while wearing their military uniform and, on the weekends or during training, they join their citizen-soldier colleagues as military members of the National Guard.

Allowing the Guard to Unionize Undermines States and Federalism

There are fundamental principles surrounding federalism and state powers in play as well. Governors are their states’ commanders in chief. Their authority over the militia — both the organized militia (the National Guard) and unorganized militia (those owing allegiance to the nation) — mirrors, and even predates, that of the president’s as commander in chief of the armed services and “the Militia of the several States, when called into the actual Service of the United States.”

As such, allowing any union interference in the civilian and military chain of command would be injurious to the good order and discipline of the military — in this case, the organized militia of a state.

Unfortunately, the Texas National Guard, when asked about the potential for union representation for its soldiers on the Operation Lone Star mission, issued a noncommittal response. Col. Rita Holton, the public affairs director for the Texas Military Department, said the Texas Guard “has no policy prohibiting employee membership in external support organizations.” This appears to give an official green light to unionizing the Guard in Texas.

Of course, if a governor’s actions in deploying the National Guard are viewed negatively by the public, there’s a good chance that governor will suffer political consequences, as well as recruiting and retention challenges within the National Guard in a state. The timing of Biden’s Justice Department filing, while ostensibly connected to a case in Connecticut, seems aimed at Texas, where Abbott is challenging Biden’s military vaccination mandate and Biden’s methodical abandonment of border security.

In the meantime, the resurrection of an idea killed by Congress 44 years ago will curtail the executive power of all 50 governors, add to the ranks of union membership, increase government union bargaining power, and degrade the ability of the National Guard to be “prepared to fight and, if necessary, to die to protect the welfare, security, and liberty of the United States.”