Authority Under the Defense Base Closure and Realignment Act to Close or Realign National Guard Installations Without the Consent of State Governors

Authority Under the Defense Base Closure and Realignment

Act to Close or Realign National Guard Installations

Without the Consent of State Governors

The federal government has authority under the Defense Base Closure and Realignment Act of 1990, as

amended, to close or realign a National Guard installation without the consent of the governor of the

state in which the installation is located.

August 10, 2005

MEMORANDUM OPINION FOR THE CHAIRMAN

DEFENSE BASE CLOSURE AND REALIGNMENT COMMISSION

The Defense Base Closure and Realignment Act of 1990 (“Base Closure Act”

or “DBCRA”) establishes a process by which the federal government is authorized

to close and realign federal military installations in the United States. Pub. L. No.

101-510, § 2901, 104 Stat. 1485, 1808, reprinted as amended in 10 U.S.C. § 2687

note (2000 & Supp. IV 2004). You have asked the Attorney General whether the

federal government has authority under the Act to close or realign a National

Guard installation without the consent of the governor of the state in which the

installation is located, particularly given two earlier-enacted statutes that require

gubernatorial consent before a National Guard “unit” may be “relocated or

withdrawn,” 10 U.S.C. § 18238 (2000), or “change[d]” as to its “branch, organiza-

tion, or allotment,” 32 U.S.C. § 104(c) (2000). See Letter for Alberto R. Gonzales,

Attorney General, from Anthony J. Principi, Chairman, Defense Base Closure and

Realignment Commission (May 23, 2005). The Attorney General has delegated to

this Office responsibility for rendering legal opinions to the various federal

agencies. See Foreword, 29 Op. O.L.C. v (2005). We conclude that the federal

government has the requisite authority.

I.

A.

Congress adopted the Base Closure Act in order “to provide a fair process that

will result in the timely closure and realignment of military installations inside the

United States.” DBCRA § 2901(b). 1 Congress acted against the backdrop of

“repeated, unsuccessful, efforts to close military bases in a rational and timely

manner.” Dalton v. Specter, 511 U.S. 462, 479 (1994) (Souter, J., concurring in

part and concurring in judgment). The initial Act authorized rounds of closure and

realignment for 1991, 1993, and 1995; amendments in 2001 (and again in 2004)

1

Citations of the Act are of the sections as they appear in the note to 10 U.S.C. § 2687 (2000 &

Supp. IV 2004).

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provided for another round in 2005. See National Defense Authorization Act for

Fiscal Year 2002, Pub. L. No. 107-107, §§ 3001–3008, 115 Stat. 1012, 1342–53

(2001); Ronald W. Reagan National Defense Authorization Act for Fiscal Year

2005, Pub. L. No. 108-375, div. A, § 1084, div. B, §§ 2831–2834, 118 Stat. 1811,

2064, 2132–34 (2004). While in force, the Base Closure Act (which under current

law expires on April 15, 2006) serves as “the exclusive authority for selecting for

closure or realignment, or for carrying out any closure or realignment of, a military

installation inside the United States.” DBCRA § 2909(a). 2 The Act’s scope is

broad: It defines “installation” as “a base, camp, post, station, yard, center,

homeport facility for any ship, or other activity under the jurisdiction of the

Department of Defense, including any leased facility.” Id. § 2910(4). And “[t]he

term ‘realignment’ includes any action which both reduces and relocates functions

and civilian personnel positions but does not include a reduction in force resulting

from workload adjustments, reduced personnel or funding levels, or skill imbal-

ances.” Id. § 2910(5).

In addition to reaching broadly, the Act also establishes an “elaborate selection

process” for accomplishing its purpose, by assigning specific roles to several

federal actors who are subjected to rigid statutory deadlines. Dalton, 511 U.S. at

464 (opinion of Court). The process for the 2005 round begins when the Secretary

of Defense certifies to Congress that a need exists to close and realign military

installations and that such closures and realignments would “result in annual net

savings for each of the military departments.” DBCRA § 2912(b)(1)(B). The

process may proceed thereafter only if, no later than March 15, 2005, the President

nominates for Senate consideration persons to constitute the Defense Base Closure

and Realignment Commission. Id. § 2912(d). Although the Commission’s actions

are expressly subject to the approval or disapproval of the President (as explained

below) and the Act does not restrict the removal of commissioners, the Commis-

sion is “independent” of other federal departments, agencies, or commissions. Id.

§ 2902(a); see generally Removal of Holdover Officials Serving on the Federal

Housing Finance Board and the Railroad Retirement Board, 21 Op. O.L.C. 135,

135, 138 n.5 (1997); see also Holdover and Removal of Members of Amtrak’s

Reform Board, 27 Op. O.L.C. 163, 166–68 (2003).

The next step after the nomination of commissioners is for the Secretary of

Defense to develop a list of the military installations in the United States that he

recommends for closure or realignment; he must submit that list to the Commis-

sion by May 16, 2005. DBCRA § 2914(a). In preparing his list, the Secretary must

2

The Act makes an exception for closures and realignments not covered by 10 U.S.C. § 2687. See

DBCRA § 2909(c)(2). Section 2687 applies to closures of military installations at which 300 or more

civilians are employed and to realignments of such installations that involve a reduction by more than

1,000 (or fifty percent) of the civilian personnel. In other words, small closures and realignments are

not subject to the Act’s exclusivity provision. This does not mean, however, that such closures and

realignments cannot be carried out under the Act.

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“consider all military installations inside the United States equally without regard

to whether the installation has been previously considered or proposed for closure

or realignment by the Department.” Id. § 2903(c)(3)(A). The Secretary’s recom-

mendations must be based on his previously established and issued “force-

structure plan” and a “comprehensive inventory of military installations.” Id.

§ 2912(a)(1). Congress also has enumerated four “military value criteria,” id.

§ 2913(b), and four “other criteria,” id. § 2913(c), on which the Secretary must

rely, and has provided that these, along with the plan and inventory, shall be the

“only criteria” on which he relies, id. § 2913(f). (In prior rounds, Congress left

with the Secretary discretion to establish the selection criteria. Id. § 2903(b).)

The Commission must hold public hearings and prepare a report reviewing the

Secretary’s recommendations and setting out the Commission’s own recommenda-

tions. Id. § 2903(d). Just as it has restricted the Secretary in preparing the original

list, so also has Congress constrained the Commission’s authority to alter the

Secretary’s list. The Commission may do so only if it “determines that the

Secretary deviated substantially from the force-structure plan and final criteria.”

Id. § 2903(d)(2)(B). And the Commission must make additional findings and

follow additional procedures if it proposes to close or realign an installation that

the Secretary has not recommended for closure or realignment or to increase the

extent of a realignment. Id. §§ 2903(d)(2)(C)–(D), 2914(d)(3), (d)(5). The

Commission must transmit its report and recommendations to the President no

later than September 8, 2005. Id. § 2914(d).

Within two weeks of receiving the Commission’s report, the President must

issue his own report “containing [his] approval or disapproval of the Commis-

sion’s recommendations.” Id. § 2914(e)(1). The Act “does not at all limit the

President’s discretion in approving or disapproving the Commission’s recommen-

dations.” Dalton, 511 U.S. at 476; see also id. at 470. But it does require his

review to be “all-or-nothing,” see DBCRA § 2903(e); he “must accept or reject the

entire package offered by the Commission,” 511 U.S. at 470. If he disapproves,

the Commission may prepare a revised list, which it must send to the President by

October 20, 2005. DBCRA § 2914(e)(2). Presidential rejection of that list ends the

process; no bases may be closed or realigned. Id. § 2914(e)(3). If, however, the

President approves either the original or revised recommendations, he sends the

approved list, along with a certification of approval, to Congress. Id. § 2903(e)(2),

(e)(4).

Each of the above steps is necessary for any closures or realignments to occur

under the Act. If Congress does not enact a joint resolution disapproving the

Commission’s recommendations within forty-five days after the transmittal from

the President, the Secretary of Defense must implement the entire list. Id. § 2904.

The Act goes on to specify in great detail the procedures for implementing these

closures and realignments. Id. § 2905.

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B.

The modern National Guard descends from efforts that Congress began in the

early twentieth century both to revive the long-dormant “Militia” described in the

Constitution and, spurred by World War I, to make it an effective complement to

the regular Armed Forces. See generally Perpich v. Dep’t of Defense, 496 U.S.

334, 340–46 (1990). Among its several provisions relating to the militia, the

Constitution grants to Congress power to “provide for organizing, arming, and

disciplining, the Militia, and for governing such Part of them as may be employed

in the Service of the United States,” while “reserving to the States respectively, the

Appointment of the Officers, and the Authority of training the Militia according to

the discipline prescribed by Congress.” U.S. Const. art. I, § 8, cl. 16. Acting

pursuant to this power, Congress in 1903 passed the Dick Act, ch. 196, 32 Stat.

775, which provided among other things for an organized militia, known as the

National Guard of the several states, that would be organized in the same way as

the regular Army, trained by regular Army instructors, and equipped through

federal funds. Perpich, 496 U.S. at 342. For historical and constitutional reasons, it

was thought that this force could not be used outside of the United States. See

Whether the Second Amendment Secures an Individual Right, 28 Op. O.L.C. 126,

152–53 (2004) (“Second Amendment”).

Partly to overcome this restriction, Congress in the National Defense Act of

1916, ch. 134, 39 Stat. 166, further federalized the National Guard pursuant to its

power, among others, to “raise and support Armies.” U.S. Const. art. I, § 8, cl. 12;

see Selective Draft Law Cases, 245 U.S. 366, 377 (1918). The National Defense

Act “provide[d] for greater federal control and federal funding of the Guard,”

“authorized the President to draft members of the Guard into federal service,” and

provided that the Army should include both the regular Army and the National

Guard while in federal service. Perpich, 496 U.S. at 343–44. The Court in the

Selective Draft Law Cases and Cox v. Wood, 247 U.S. 3 (1918), upheld the draft

provisions of the National Defense Act, concluding, among other things, that

Congress’s power to raise and support armies was “not qualified or restricted by

the provisions of the militia clause,” Cox, 247 U.S. at 6. The Court reaffirmed this

interpretation in Perpich, 496 U.S. at 349–50.

In 1933, Congress gave the National Guard much of its current shape by creat-

ing two overlapping organizations whose members have dual enlistment: the

National Guard of the various states and the National Guard of the United States,

the latter forming a permanent reserve corps of the federal Armed Forces. See Act

of June 15, 1933, ch. 87, 48 Stat. 153; Perpich, 496 U.S. at 345; see also 10

U.S.C. § 101(c) (2000) (distinguishing between these two entities); id. § 10101

(defining the “reserve components of the armed forces” to include the Army and

Air National Guard of the United States); see also id. §§ 10105, 10111 (2000)

(similar). Today, the federal government “provides virtually all of the funding, the

materiel, and the leadership for the State Guard units,” although Congress

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Authority Under Base Closure Act to Close National Guard Installations

continues, arguably for constitutional reasons, to allow a state to provide and

maintain at its own expense a defense force outside of this system. Perpich, 496

U.S. at 351–52; 32 U.S.C. § 109(c) (2000). The National Guard of the United

States is thus at all times part of the Armed Forces of the United States. The

requirement of dual enlistment set up in 1933 means that a member of the National

Guard simultaneously performs two distinct roles: Armed Forces reservist and

state militiaman. Under ordinary circumstances, National Guard units retain their

status as state militia units, under the ultimate command of the governor of the

state in which the unit is located. See 10 U.S.C. § § 10107, 10113 (2000). Under

certain conditions, however, the President can order those units into active federal

service, just as he can order any other component of the Armed Forces into active

duty. See 10 U.S.C. § 12301 (2000 & Supp. IV 2004). For as long as they remain

in federal service, members of the National Guard are relieved of their status in the

State Guard, see 32 U.S.C. § 325(a) (2000 & Supp. IV 2004); Perpich, 496 U.S. at

345–46, and their units become exclusively components of the United States

Armed Forces, see 10 U.S.C. §§ 10106, 10112 (2000).

II.

A.

Your letter to the Attorney General requests an answer to the question whether

the federal government, when following the procedures described in the Base

Closure Act, has authority to recommend and carry out the closure or realignment

of a National Guard installation without obtaining the consent of the governor of

the state in which the installation is located.

As an initial matter, the authority and procedures of the Base Closure Act un-

doubtedly do extend to National Guard installations, just as they do to any other

type of military installation under the jurisdiction of the Department of Defense.

The Act is comprehensive in its coverage. In broadly defining “military installa-

tion,” DBCRA § 2910(4) (quoted above), the Act makes no distinction between

installations associated with the National Guard and those associated with any

other component of the Armed Forces. Indeed, the Secretary’s required inventory

of military installations must include facilities in both the “active and reserve

forces,” id. § 2912(a)(1)(B), which plainly includes the National Guard, see 10

U.S.C. § 10101. We understand that all of the National Guard installations

recommended by the Secretary for closure or realignment in the current round are

located on land either owned or leased by the Department of Defense. Such

installations are included within the definition of “military installation” and are

thus presumptively subject to closure or realignment under the Act. Similarly, the

Act’s definition of “realignment,” which “includes any action which both reduces

and relocates functions and civilian personnel positions,” DBCRA § 2910(5),

provides no basis for distinguishing the National Guard. Nothing in that definition

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suggests that such actions are not equally covered whether they involve active or

reserve forces, the regular military or the National Guard. It is therefore not

surprising that in previous rounds both the Secretary and the Commission made

recommendations to close or realign National Guard installations, or that the

Secretary has made such recommendations in the current round.

As your letter recognizes, however, two statutes might be read to restrict the

federal government’s ability to carry out such closures and realignments. These

are 10 U.S.C. § 18238 and 32 U.S.C. § 104(c). Considering each provision in turn,

we conclude that neither affects the exercise of authority under the Base Closure

Act.

B.

Section 18238 provides in full as follows:

A unit of the Army National Guard of the United States or the Air

National Guard of the United States may not be relocated or with-

drawn under this chapter without the consent of the governor of the

State or, in the case of the District of Columbia, the commanding

general of the National Guard of the District of Columbia.

(Emphasis added.) Section 18238 by its terms applies only to relocations or

withdrawals “under this chapter.” The applicable chapter of title 10 is chapter

1803, which comprises sections 18231 to 18239. The Base Closure Act, however,

is not included in chapter 1803. Public Law 107-107, which authorizes the current

round of closings and realignments, is a distinct legal authority, and the Act has

been included as a note to 10 U.S.C. § 2687, which is part of chapter 159. By its

terms, therefore, section 18238 does not apply to the Base Closure Act because the

Act is not part of “this chapter” (i.e., chapter 1803) and action under the Act

therefore is not, and cannot be, action under chapter 1803. Thus, as the plain text

of the provision makes clear, section 18238 has no bearing on the scope of

authority exercised under the Act.

This reading of the current text is confirmed by the statutory history of section

18238. The provision was originally enacted as section 4(b) of the National

Defense Facilities Act of 1950, ch. 945, 64 Stat. 829, 830. Section 4(b) applied

only to situations in which the location of a National Guard unit was changed

“pursuant to any authority conferred by this Act.” Id. (emphasis added). 3 This

limiting clause was modified to “under this chapter” in 1956 when the Facilities

3

Section 4(b) required merely that the relevant governor be “consulted.” 64 Stat. at 830. A subse-

quent amendment added the phrase “and shall have consented.” Pub. L. No. 84-302, § 1(c), 69 Stat.

593, 593 (1955). In 1958, the wording was changed to the current “without the consent” version, and

the phrase “shall have been consulted” was omitted as surplusage. Pub. L. No. 85-861, § 1(43), 72 Stat.

1437, 1457 (1958); S. Rep. No. 85-2095, at 33 (1958), reprinted in 1958 U.S.C.C.A.N. 4615, 4634.

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Act was first codified in title 10 as part of the codification of military law into

titles 10 and 32. Pub. L. No. 84-1028, sec. 1, § 2238, 70A Stat. 1, 120, 123

(1956). 4 As was generally the case in the 1956 codification, no change in meaning

was intended. Id. sec. 49(a), 70A Stat. at 640 (“In sections 1–48 of this Act, it is

the legislative purpose to restate, without substantive change, the law replaced by

those sections”); see also Schacht v. United States, 398 U.S. 58, 62 n.3 (1970)

(“Although the 1956 revision and codification were not in general intended to

make substantive changes, changes were made for the purpose of clarifying and

updating language.”); S. Rep. No. 84-2484, at 19 (1956), reprinted in 1956

U.S.C.C.A.N. 4632, 4640 (“The object of the new titles has been to restate

existing law, not to make new law. Consistently with the general plan of the

United States Code, the pertinent provisions of law have been freely reworded and

rearranged, subject to every precaution against disturbing existing rights, privileg-

es, duties, or functions.”); Fairbank v. Schlesinger, 533 F.2d 586, 600 (D.C. Cir.

1975) (observing that “the codification of the Armed Forces statutes in 1956,

according to the provisions of the codification and the committee reports, did not

intend to make any changes in the law”) (footnote omitted); id. at 595 & n.20

(discussing the codification).

Both text and history thus make clear that the gubernatorial consent require-

ment contained in section 18238 applies only where the federal government is

acting under the authority conferred by the Facilities Act, as now codified in

chapter 1803 of title 10. The Commission is certainly not doing so here. It is

instead acting under the authority of the Base Closure Act—its only source of

authority or even existence—without any reliance on chapter 1803, just as the

President and later the Secretary of Defense will act solely under the Act as the

process continues. Moreover, the Commission is performing actions distinct from

those for which chapter 1803 provides authority. The primary purpose of that

chapter is to provide for “the acquisition” in various ways “of facilities necessary

for the proper development, training, operation, and maintenance of the reserve

components of the armed forces, including troop housing and messing facilities.”

10 U.S.C. § 18231 (2000); see also H.R. Rep. No. 81-2174, at 1 (1950) (stating

similar purpose of original Facilities Act). To that end, chapter 1803 authorizes the

Secretary of Defense to acquire or build facilities with federal money, as well as to

make contributions to the states. See 10 U.S.C. § 18233 (2000 & Supp. IV 2004).

Those contributions are to be used either to convert existing facilities for joint use

by more than one reserve unit, id. § 18233(a)(2), or to acquire or convert new

facilities “made necessary by the conversion, redesignation, or reorganization of

units” of the National Guard of the United States by the Secretary of the relevant

military department, id. § 18233(a)(3).

4

Section 4(b) then became 10 U.S.C. § 2238, part of chapter 133. In 1994, Congress redesignated

chapter 133 as chapter 1803, and sections 2231–2239 as sections 18231–18239, with section 2238

becoming section 18238. Pub. L. No. 103-337, § 1664(b), 108 Stat. 2663, 3010 (1994).

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All of this federally funded construction for the benefit of the National Guard

naturally could lead to the relocation of certain Guard units to new facilities. In

these circumstances, section 18238 requires gubernatorial consent before a unit is

“withdrawn” from its existing facility or “relocated” to a new one. The provision

thus limits the ability of the Secretary of Defense to relocate National Guard units

unilaterally as an incident of his powers under chapter 1803 to provide new

facilities for the reserve components of the Armed Forces. In contrast, when the

federal government uses the Base Closure Act to close or realign military installa-

tions—and thereby to relocate National Guard units—its power in no way derives

from chapter 1803.

The same analysis applies even if the closure or realignment of a National

Guard facility pursuant to the Base Closure Act should ultimately require the

federal government to acquire land or construct facilities. That Act provides

independent statutory authority for such development activity, by authorizing the

Secretary of Defense to “take such actions as may be necessary to close or realign

any military installation, including the acquisition of such land, [or] the construc-

tion of such replacement facilities . . . as may be required to transfer functions

from a military installation being closed or realigned to another military installa-

tion.” DBCRA § 2905(a)(1)(A) (emphasis added). Here again, because the

exercise of such authority would not depend on anything in chapter 1803, it would

be unconstrained by section 18238. 5

C.

Section 104(c) of title 32 provides in full as follows:

To secure a force the units of which when combined will form com-

plete higher tactical units, the President may designate the units of

the National Guard, by branch of the Army or organization of the Air

Force, to be maintained in each State and Territory, Puerto Rico, and

the District of Columbia. However, no change in the branch, organi-

zation, or allotment of a unit located entirely within a State may be

made without the approval of its governor.

32 U.S.C. § 104(c). Related to this provision, section 104(a) authorizes each state

to “fix the location of the units and headquarters of its National Guard,” and

5

There is an additional reason for not reading section 18238 to apply to the Base Closure Act. The

Facilities Act grants authority to “the Secretary of Defense.” See, e.g., 10 U.S.C. § 18233(a). It follows

that section 18238’s limitation on that authority applies only to actions taken by the Secretary. Thus,

the Facilities Act at least should not be read to apply to actions by the Commission or the President.

And given that the final power to require closure or realignment under the Base Closure Act belongs to

the President alone, see Dalton, 511 U.S. at 469–70, it would be anomalous to read section 18238 to

apply to—and conflict with—the Secretary’s subsequent duty (discussed above) to implement all of the

closures and realignments on the list approved by the President.

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Authority Under Base Closure Act to Close National Guard Installations

section 104(b) provides that, except as otherwise specifically provided in title 32,

“the organization of” the Army National Guard and Air Force National Guard

“and the composition of [their] units” shall be the same as those of their respective

branches of the federal Armed Forces.

For two reasons, we conclude that section 104(c) does not constrain actions

taken pursuant to the Base Closure Act. First, the text of that section strongly

suggests that the second sentence simply qualifies any exercise of authority under

the first, and thus that its gubernatorial consent requirement does not apply to the

exercise of any separate authority—such as the Base Closure Act—even if that

authority may allow similar or overlapping actions. Second, reading the “Howev-

er” sentence more broadly would so fundamentally undermine the Base Closure

Act’s detailed and comprehensive scheme that Congress could not have intended

such a result. Indeed, the inconsistency between the integrated and exclusive

procedures of the Base Closure Act and the requirement imposed by the second

sentence of section 104(c) is sufficiently serious that, if the Act and section 104(c)

did overlap, we would be compelled to read the former as impliedly suspending

operation of the latter to the extent of the overlap. 6 Interpreting section 104(c) not

to apply to the Act avoids that result and harmonizes the two statutes in a way

fully consistent with the underlying purposes of each, as required by well-

established rules of statutory construction.

We begin with the text. The second sentence of section 104(c) refers back to

the first sentence in two significant ways; these references suggest that the second

sentence’s admonition that “no change” may be made without gubernatorial

6

At least some closures or realignments of National Guard installations under the Base Closure Act

may be said to involve a “change in the branch, organization, or allotment of a unit located entirely

within a State,” in which case, if section 104(c) did apply, gubernatorial consent would be required. We

understand that phrase to reach only actions that would either alter the affiliation of a particular

National Guard “unit” with a particular segment of the regular Armed Forces or move a Guard “unit”

out of a state where it had been entirely maintained. This interpretation follows from reading the two

sentences of section 104(c) together. In the first sentence, “branch” refers to the part of the Army with

which the Guard unit is associated, and “organization” refers to the part of the Air Force. When used in

the very next sentence, those terms should be given the same meaning. Cf. Brown v. Gardner, 513 U.S.

115, 118 (1994) (observing that the “presumption that a given term is used to mean the same thing

throughout a statute [is] . . . surely at its most vigorous when a term is repeated within a given

sentence”) (citation omitted). Similarly, “allotment” is best understood, in light of the first sentence, to

refer to the President’s “designat[ion] of units . . . to be maintained in each State.” Regulations issued

by the National Guard Bureau adopt this interpretation: “Allotment to a state comprises all units

allocated to and accepted by the Governor of that state for organization under appropriate authorization

documents.” National Guard Bureau, Departments of the Army and the Air Force, Organization and

Federal Recognition of Army National Guard Units, NGR 10-1, § 2-2(a), at 5 (Nov. 22, 2002)

(available at http://www.ngbpdc.ngb.army.mil/pubs/10/ngr10_1.pdf , last visited Aug. 12, 2014). Under

this reading, section 104(c) would not restrict the transfer of a National Guard unit’s federally owned

equipment or armaments, so long as the “unit” itself remained in place and its branch or organization

were not changed. Although the provision so construed is limited, we understand that certain closures

or realignments proposed by the Secretary in the current round may involve relocating an entire

National Guard unit out of a given state, which could amount to a change in “allotment.”

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approval is best read simply to constrain actions conducted under the first

sentence’s authorization of certain presidential “designat[ions].” For one, the

beginning word, “However,” is one that necessarily refers to and limits what

comes before. For another, the words “branch” and “organization” appear in both

sentences of section 104(c). In the first sentence they describe the scope of the

President’s power; in the second, they describe the scope of the limitation on that

power. This parallel construction indicates that the second sentence was intended

to apply when the President takes action under the first sentence, not when he acts

pursuant to authority conferred on him by entirely separate and distinct authoriza-

tions.

This reading finds additional support in the statutory history. What is now

section 104(c) is the combined product of the National Defense Act of 1916 and

the amendments enacted in 1933. Section 60 of the National Defense Act allowed

the President to associate National Guard units with particular branches of the

regular Army and to arrange those units geographically so that, when combined,

they would form complete tactical units. 39 Stat. at 197. As originally enacted, this

section granted no veto authority to the states. In 1933, however, Congress

qualified this presidential power, such that section 60 read as follows:

[T]he President may prescribe the particular unit or units, as to

branch or arm of service, to be maintained in each State, Territory, or

the District of Columbia in order to secure a force which, when

combined, shall form complete higher tactical units: Provided, That

no change in allotment, branch, or arm of units or organizations

wholly within a single State will be made without the approval of the

governor of the State concerned.

Act of June 15, 1933, § 6, 48 Stat. at 156. The language of this amendment

demonstrates even more clearly that Congress did not intend the gubernatorial

consent provision to be a free-standing requirement for all actions taken by the

federal government with respect to the National Guard. Instead, the use of a

proviso form—linking the second clause to the preceding one both grammatically

(by the colon followed by the word “Provided”) and syntactically (by the repeti-

tion of the words “branch” and “arm”)—indicates that Congress intended merely

to qualify the authority it had previously conferred on the President in the 1916

Act.

This provision reached its current form in the 1956 codification, discussed

above in connection with section 18238. See Pub. L. No. 84-1028, sec. 2, § 104(c),

70A Stat. at 598. As with the changes made to section 18238, those made to

section 104(c) at that time were stylistic, and were not intended to alter the scope

or meaning of the provision. See supra Part II.B.

Thus, given both the language of the current text and the history of that text, the

second sentence of section 104(c) is best read simply as a proviso of the first, i.e.,

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as a statement “restricting the operative effect of statutory language to less than

what its scope of operation would be otherwise.” 2A Norman J. Singer, Sutherland

on Statutes and Statutory Construction § 47:08, at 235 (6th ed. 2000) (“Suther-

land”); see Ga. R.R. & Banking Co. v. Smith, 128 U.S. 174, 181 (1888) (“The

general purpose of a proviso, as is well known, is to except the clause covered by

it from the general provisions of a statute, or from some provisions of it, or to

qualify the operation of the statute in some particular.”). This textual reading is

consistent with the general rule that a proviso should be construed narrowly, see

Comm’r v. Clark, 489 U.S. 726, 739 (1989), and “to refer only to the things

covered by a preceding clause,” Alaska v. United States, 545 U.S. 75, 106 (2005).

It is true that courts do not always apply the general rule that a proviso is lim-

ited to the provision it qualifies. See 2A Sutherland § 47:09, at 238–39; Alaska,

545 U.S. at 106–07. But our analysis here rests only on the particular text at

issue—focusing on the obvious connections between the two sentences of section

104(c), which the statutory history makes even more obvious, as well as on the

absence of any language indicating that the proviso was intended to reach beyond

the scope of the provision that it qualifies. In addition, the existence of a separate

gubernatorial consent provision in section 18238 further suggests that section

104(c)’s proviso was not intended to be comprehensive. Our interpretation thus

does not depend on invoking a presumption to clarify a text more naturally read in

a different way, but instead relies on what Congress intended when it enacted

section 104(c), as evidenced by the words that it used and the context in which it

used them. See 2A Sutherland § 47:09, at 239–40. All of these indicators point

toward giving the proviso a narrow cast.

This textual reading of the scope of section 104(c)’s proviso finds additional

support in the rule that seemingly inconsistent statutes should be construed, where

their text permits, to avoid a conflict. See Morton v. Mancari, 417 U.S. 535, 551

(1974) (“[W]hen two statutes are capable of co-existence, it is the duty of the

courts, absent a clearly expressed congressional intention to the contrary, to regard

each as effective.”); California ex rel. Sacramento Metro. Air Quality Mgmt. Dist.

v. United States, 215 F.3d 1005, 1012 (9th Cir. 2000) (“[I]t is a well established

axiom of statutory construction that, whenever possible, a court should interpret

two seemingly inconsistent statutes to avoid a potential conflict.”). This rule of

statutory construction reinforces the need to construe the proviso narrowly, as a

more expansive interpretation would create serious conflicts between section

104(c) and the Base Closure Act. The Act establishes comprehensive procedural

and substantive criteria to be used for making base closure and realignment

decisions. It imposes strict deadlines on various Executive Branch actors and on

Congress; establishes and limits the criteria on which the Secretary may rely in

preparing his list of recommendations; establishes and limits the criteria on which

the Commission may rely in reviewing and revising the Secretary’s list; and

constrains the President and Congress to all-or-nothing decisions about the entire

package of recommendations. These finely wrought procedures are designed to

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be—and can work correctly only if they are—wholly integrated as a single

package, exclusive of and unimpeded by external procedural requirements like a

gubernatorial veto. Accordingly, we must read section 104(c)’s proviso—

consistent with its text and statutory history—as not applying to the exercise of

authority under the Base Closure Act. 7 Cf. United States v. Fausto, 484 U.S. 439,

453 (1988) (“This classic judicial task of reconciling many laws enacted over time,

and getting them to ‘make sense’ in combination, necessarily assumes that the

implications of a statute may be altered by the implications of a later statute.”).

The potential conflicts between a gubernatorial consent requirement and the

Base Closure Act take several forms. First, where it applies and while it is in force,

the Act is expressly designated as the “exclusive authority” for the closure or

realignment of federal military installations in the United States. DBCRA

§ 2909(a) (emphasis added). This exclusivity would be eviscerated if an entity not

given any authority by the Act were nevertheless allowed to deselect particular

installations from the list of proposed closures and realignments. The Act, in

contrast to the roles carefully selected for the Secretary, Commission, President,

and Congress, designates no role whatsoever for state governors in the selection

process. It would be a serious incursion on the Act’s comprehensive procedural

scheme to allow a different set of actors, unmentioned in the Act with regard to

selection, and operating at an entirely different level of government, to play such a

crucial and potentially disruptive role in determining which installations could be

closed or realigned. Indeed, such a conclusion would allow state governors to

exercise a power that the Act withholds from all of the federal actors on which it

confers responsibility: the ability to block the closure or realignment of an

individual installation for any reason. In addition, Congress knew how to confer a

7

If we were to read the second sentence of section 104(c) as reaching beyond the section in which

it appears, we would be compelled to read the Base Closure Act as impliedly repealing (or, more

accurately given the time-limited nature of the Act, temporarily suspending) the proviso to the extent

that the proviso would interfere with and constrain the exercise of authority under the Act. See Posadas

v. Nat’l City Bank, 296 U.S. 497, 503 (1936) (describing the “well-settled” rule that “where provisions

in the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an

implied repeal of the earlier one”); 1A Norman J. Singer, Sutherland on Statutes and Statutory

Construction § 23:9, at 458 (6th ed. 2002) (“[I]t is only natural that subsequent enactments could

declare an intent to repeal preexisting laws without mention or reference to such laws. A repeal may

arise by necessary implication from the enactment of a subsequent act.”). The general presumption

against implied repeals is overcome where there is a clear conflict between provisions enacted at

different times or a clear indication that, in enacting the later statute, Congress intended to supplant the

earlier one. See Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752, 766–67 (2004); Branch v. Smith, 538

U.S. 254, 273 (2003); see also In re Glacier Bay, 944 F.2d 577, 583 (9th Cir. 1991) (holding that the

Trans-Alaska Pipeline Authorization Act impliedly repealed the earlier Limitation Act, because the

former was “comprehensive” and its “scheme simply cannot work if the Limitation Act is allowed to

operate concurrently”). For the reasons given in the text below, such would plainly be the case here.

Congress intended the Base Closure Act to be an integrated, comprehensive, and exclusive statutory

scheme, and a limited suspension of the previously enacted proviso in section 104(c) (which was last

amended before the Base Closure Act was first enacted in 1990) would be “necessary to make [the Act]

work.” Cf. Silver v. N.Y. Stock Exch., 373 U.S. 341, 357 (1963).

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role on governors (and other non-federal entities) when it wanted them to have

one: The Act expressly gives to state and local officials (including governors in

some cases) the right to be consulted regarding and even veto certain federal

actions, but these are actions implementing the list, after it has been approved. See

DBCRA § 2905(b)(2)(D) & (E), (3)(B) & (D), (5)(B) & (C)(i). In this context, the

Act’s contrasting silence about the role of state governors in the process of

selecting bases for closure and realignment must be considered conclusive. See,

e.g., Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 341 (2005)

(“We do not lightly assume that Congress has omitted from its adopted text

requirements that it nonetheless intends to apply, and our reluctance is even

greater when Congress has shown elsewhere in the same statute that it knows how

to make such a requirement manifest.”).

Similarly, applying section 104(c) to the Act would unravel the exclusivity of

the selection criteria that Congress has woven into the rules for both the Secretary

and the Commission. Under section 2913(f), the “final selection criteria specified

in [section 2913] shall be the only criteria to be used, along with the [Secretary’s]

force-structure plan and infrastructure inventory” in determining the Secretary’s

recommendations (emphasis added). Furthermore, the Secretary in applying these

criteria must “consider all military installations inside the United States equally

without regard to whether the installation has been previously considered or

proposed for closure or realignment by the Department.” DBCRA § 2903(c)(3)(A)

(emphases added). Although this provision is not free from ambiguity (the

concluding “without regard” clause might be read as limiting the sense of “equal-

ly” rather than merely emphasizing one aspect of equal consideration), there is

nevertheless tension between this mandate and the application of a unique

immunity for National Guard installations. The Commission faces analogous

restrictions, as it may depart from the Secretary’s recommendations only if, among

other things, it determines that he “deviated substantially from the force-structure

plan and final criteria.” Id. § 2903(d)(2)(B); see also id. § 2914(d) (imposing other

constraints). Thus, the base closure framework is unambiguously designed not to

allow either the Secretary or the Commission to make decisions about which

installations to close or realign on any additional criteria not described in the Act

itself—such as the wishes of state governors. A requirement that gubernatorial

consent be obtained before particular installations may be recommended for

closure or realignment cannot be squared with this crucial feature of the Act.

Section 2914(b), which Congress added for the 2005 round, confirms this

interpretation by expressly allowing one narrow exception from the exclusivity of

selection criteria, and giving even that exception a minimal scope. This section

requires the Secretary, in developing his recommendations, to “consider any notice

received from a local government in the vicinity of a military installation that the

government would approve of the closure or realignment of the installation.” Id.

§ 2914(b)(2)(A). Yet at the end of the day, “[n]otwithstanding” this requirement,

the Secretary must base his recommendations only on “the force-structure plan,

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infrastructure inventory, and final selection criteria.” Id. § 2914(b)(2)(B). The Act

makes no comparable provision for state officials—or, indeed, for any officials

who disapprove a possible closure or realignment. In light of this narrow accom-

modation of the view of local governments, the exclusion of any accommodation

of the views of non-consenting governors is powerful evidence that Congress did

not expect—and would not have wanted—a gubernatorial veto provision to

impede any action proposed or carried out under the Base Closure Act. Cf. United

Dominion Indus., Inc. v. United States, 532 U.S. 822, 836 (2001) (“The logic that

invests the omission with significance is familiar: the mention of some implies the

exclusion of others not mentioned.”).

The conflict between an expansively interpreted version of section 104(c) and

the comprehensive scheme of the Base Closure Act becomes particularly acute in

the context of the President’s role under the Act. As previously noted, the Act

imposes no constraints on the President’s discretion to approve or disapprove the

Commission’s recommendations. If state governors had a veto power over actions

under the Act, however, one of two absurd consequences would follow. On the

one hand, the President could take into account a gubernatorial veto. The Presi-

dent’s power under the Act, however, is all-or-nothing; he is barred from editing

out a particular installation to whose closure or realignment a governor objects.

Accordingly, his only option for giving effect to the gubernatorial veto would be

to reject the entire list. 8 In such case, the governor would receive a veto power not

simply over a particular National Guard installation—which, as explained above,

is extraordinary enough in the context of the Act—but rather over the entire set of

recommended closures and realignments. Such a power not only would exceed the

scope of section 104(c) itself, but also would be clearly irreconcilable with a

nationwide, federal base closure process that, as described above, provides no role

for governors in selecting installations for closure or realignment. On the other

hand, the President might disregard a gubernatorial objection (notwithstanding

section 104(c)) and approve the entire list. This action, however, would set up yet

another conflict: Section 2904(a) of the Act requires the Secretary, in implement-

ing the final list, to “close all military installations recommended for closure” and

“realign all military installations recommended for realignment.” DBCRA

§ 2904(a)(1), (2) (emphases added). In that scenario, the Secretary could not

comply with section 104(c) without violating section 2904(a).

Although these specific conflicts are extremely significant, we also cannot

overlook that reading section 104(c) to apply to actions under the Base Closure

Act would thwart the broader goal of the Act: to replace an essentially ad hoc and

politically unworkable process, see Dalton, 511 U.S. at 479, 481–82 (opinion of

8

Although the President could return the list to the Commission with objections based on the veto,

that would not solve the problem. If the Commission simply deleted the vetoed recommendations, it

would violate the exclusivity of selection criteria. If it did not, the President would face the original

problem again when the Commission returned the list.

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Souter, J.), with a comprehensive, unified, and rational one, “a fair process that

will result in the timely closure and realignment of military installations inside the

United States,” DBCRA § 2901(b). With respect to National Guard installations at

least, applying section 104(c) would revive the ills of the pre-Act process. Justice

Souter’s observations in Dalton (on behalf of four Justices) about the incompati-

bility of the Base Closure Act with judicial review would thus apply with equal

force to a gubernatorial veto:

If judicial review could eliminate one base from a package, the polit-

ical resolution embodied in that package would be destroyed; if such

review could eliminate an entire package, or leave its validity in

doubt when a succeeding one had to be devised, the political resolu-

tion necessary to agree on the succeeding package would be rendered

the more difficult, if not impossible. The very reasons that led Con-

gress by this enactment to bind its hands from untying a package,

once assembled, go far to persuade me that Congress did not mean

the courts to have any such power through judicial review.

511 U.S. at 481–82 (emphases added).

For these reasons, a gubernatorial consent requirement would do serious dam-

age to—and thus be incompatible with—the carefully calibrated scheme set up by

the Base Closure Act. Under applicable rules of statutory construction, this

incompatibility confirms our interpretation that section 104(c)’s proviso qualifies

only the power that section 104(c) itself grants. 9 Here, because the power exer-

cised in the base closure process by the Secretary, the Commission, and ultimately

the President, including the power to relocate National Guard units, is in no way

derived from or dependent on section 104(c), it follows that the proviso does not

apply.1 0

9

This interpretation does not render the proviso a nullity. The provision applies whenever the

President acts pursuant to the authority granted him by the first sentence of section 104(c). Although

the President’s decision to rearrange National Guard units under that authority (which he can do at any

time) is not constrained by the Base Closure Act’s elaborate requirements, he is required in such

circumstance to secure gubernatorial permission before altering the branch, organization, or allotment

of a unit. Nor does our interpretation produce a result at odds with the proviso’s apparent purpose.

When Congress in 1933 was in the process of adding to the predecessor of section 104(c) the

requirement of gubernatorial consent, the House Committee on Military Affairs stated the reasons for

the addition as follows: “[W]here a State has gone to considerable expense and trouble in organizing

and housing a unit of a branch of the service,” the “State should not arbitrarily be compelled to accept a

change.” H.R. Rep. No. 73-141, at 6 (1933). The stated goal was to protect states against arbitrary

changes. Although one might find the closures and realignment wrought by the elaborate process of the

Base Closure Act imperfect, one could hardly consider them arbitrary. Indeed, the entire point of the

Act is to reduce arbitrariness.

10

Necessarily included within your request is the question whether the authority to close or realign

National Guard installations under the Base Closure Act, unrestricted by a requirement of state consent,

would violate the Constitution, or, at least, whether we should read sections 18238 and 104(c) broadly

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III.

For the foregoing reasons, we conclude that the federal government, acting

pursuant to the Base Closure Act, need not obtain permission from state governors

before closing or realigning National Guard installations.

C. KEVIN MARSHALL

Deputy Assistant Attorney General

Office of Legal Counsel

so as to avoid a possible constitutional violation. We see no basis for an affirmative answer. First, the

most plausible source of any constitutional infirmity would be the second Militia Clause. But that

clause authorizes Congress to provide for “organizing, arming, and disciplining, the Militia,” U.S.

Const. art. I, § 8, cl. 16, which includes forming the militia into organized units, Perpich, 496 U.S. at

350. Indeed, “the Militia Clauses are—as the constitutional text plainly indicates—additional grants of

power to Congress,” id. at 349; and concurrent state power in this area is clearly subordinate to that

federal power. See Second Amendment, 28 Op. O.L.C. at 162–64. Second, the modern National Guard,

intimately connected with the federal Armed Forces, rests to a large extent on Congress’s distinct

power to raise and support armies, which is not qualified by the Militia Clauses. See supra Part I.B.

Third, the Act applies only to federal installations, and thus finds further support in Congress’s power

“to dispose of and make all needful Rules and Regulations respecting the . . . Property belonging to the

United States.” U.S. Const. art. IV, § 3, cl. 2. That power is not held at the mercy of the states. See, e.g.,

Kleppe v. New Mexico, 426 U.S. 529, 539, 543 (1976). Finally, as already noted, the original version of

what is now section 104(c), in force from 1916 to 1933, contained no requirement of gubernatorial

consent; we have located no constitutional objections raised during that time. Rather, the proviso

apparently was added in 1933 solely for policy reasons. See H.R. Rep. No. 73-141, at 6 (quoted above

in note 9).

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