Amicus Curiae Brief — The Ohio Adjutant General's Department, et al., Petitioners v. Federal Labor Relations Authority, et al.

Supreme Court briefDec 16, 2022

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No. 21-1454

In the Supreme Court of the United States

THE OHIO ADJUTANT GENERAL’S DEP’T ET AL.,

Petitioners,

FEDERAL LABOR RELATIONS AUTHORITY ET AL.,

Respondents.

On Writ of Certiorari to

the United States Court of Appeals for the

Sixth Circuit

BRIEF FOR MILITARY LAW SCHOLARS

AS AMICI CURIAE SUPPORTING

RESPONDENTS

PAUL W. HUGHES

CHARLES A. ROTHFELD

MICHAEL B. KIMBERLY

Counsel of Record

McDermott Will &

ANDREW J. PINCUS

Emery LLP

Mayer Brown LLP

500 N. Capitol Street,

1999 K Street, NW

Washington, DC 20006

Washington, DC 20001 (202) 263-3000

crothfeld@mayerbrown.com

(Counsel continued on inside cover)

Counsel for Amici Curiae

EUGENE R. FIDELL

Yale Law School

Supreme Court Clinic

127 Wall Street

NEW HAVEN, CT 06511

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES...................................... iv

INTEREST OF THE AMICI CURIAE ...................... 1

INTRODUCTION AND SUMMARY OF

ARGUMENT .................................................... 2

ARGUMENT .............................................................. 5

FOUNDING-ERA HISTORY REVEALS

THAT THE FRAMERS EXPECTED

THE FEDERAL GOVERNMENT TO

PLAY A CENTRAL ROLE IN

REGULATING MILITIAS. ............................. 5

At the Constitutional Convention,

the Framers rejected the

debilitating weaknesses of the

decentralized military structure

under the Articles of

Confederation. ....................................... 6

The Framers uniformly agreed

that the Militia Clauses grant

extensive authority to the federal

government to regulate militias. ........ 10

The Second Amendment reflects

the Framers’ understanding that

the Militia Clauses give the

federal government principal

authority over militias. ....................... 12

Early members of Congress

similarly recognized the broad

scope of federal power over the

militias and arrived at the Militia

Act of 1792 as a political

compromise. ........................................ 14

TABLE OF CONTENTS—continued

Page

II.

III.

THE NATIONAL GUARD’S

DEVELOPMENT REFLECTS

INCREASING FEDERALIZATION TO

MEET PRESSING NATIONAL

SECURITY NEEDS....................................... 19

Throughout the twentieth

century, states increasingly ceded

control over militias to Congress

in exchange for federal funding. ......... 21

The beginning of the Cold War

marked a substantial change in

the National Guard’s role in U.S.

military strategy—emphasizing

unified preparedness and highend technological capabilities. ............ 23

Congress has an interest in

maintaining a National Guard

that is coherent, well-trained,

and ready to take on the needs of

an increasingly interconnected

and unpredictable world. .................... 25

EVEN IF THE NATIONAL GUARD IS

A DUAL STATE AND FEDERAL

VENTURE, CIVILIAN TECHNICIANS

WITHIN THE GUARD ARE

OVERWHELMINGLY FEDERAL IN

NATURE. ....................................................... 28

Congress federalized civilian

National Guard technicians to

ensure mission readiness.................... 29

iii

TABLE OF CONTENTS—continued

Page

The funding and regulatory

regime behind the National

Guard confirms that civilian

technicians are federal

employees. ........................................... 30

CONCLUSION ......................................................... 31

TABLE OF AUTHORITIES

Page(s)

Cases

District of Columbia v. Heller,

554 U.S. 570 (2008) .............................................. 13

Perpich v. Dep’t of Defense,

496 U.S. 334 (1990) .................................... 8, 23, 24

Simpson v. United States,

467 F. Supp. 1122 (S.D.N.Y. 1979) ...................... 29

Walch v. Adjutant Gen.’s Dep’t of Tex.,

533 F.3d 289 (5th Cir. 2008) ................................ 29

Statutes and Rules

U.S. Const. Art. I, § 8, Cls. 15 ..................................... 5

U.S. Const. Art. I, § 8, Cls. 16 ................................. 5, 9

10 U.S.C. § 10217(a) .................................................. 30

32 U.S.C. § 709(a) ...................................................... 29

32 U.S.C. § 709(c)(1) .................................................. 30

32 U.S.C. § 709(e) ...................................................... 29

Act of June 15, 1933, 48 Stat. 153 ............................ 23

Dick Act of 1903,

Pub. L. No. 57-33, 32 Stat. 775................ 20, 21, 27

TABLE OF AUTHORITIES—continued

Page(s)

National Defense Act of 1916,

39 Stat. 166 .................................................... 21, 22

National Defense Facilities Act of 1950,

64 Stat. 830 .......................................................... 23

National Guard Technicians Act of

1968, Pub. L. No. 90-486, 82 Stat.

755 ............................................................ 24, 28, 29

Supreme Court Rule 37.6............................................ 1

Other Authorities

The Address and Reasons of Dissent of

the Minority of the Convention of

Pennsylvania to Their Constituents,

in The Complete Anti-Federalist

(Herbert J. Storing ed., 1985) .............................. 12

Admin. for Strategic Preparedness &

Response, The National Guard’s

Response to COVID-19, U.S. Dep’t of

Health & Hum. Servs.,

perma.cc/QE8S-9EV4........................................... 26

3 Annals of Cong. 423 (1792) .................................... 14

4 Annals of Cong. 1068 (1795) .................................. 14

Articles of Confederation of 1781,

Art. IX, paras. 1, 5.................................................. 6

TABLE OF AUTHORITIES—continued

Page(s)

Articles of Confederation of 1781,

Art. VI, para. 4 ....................................................... 6

Jonathon Berlin & Kori Rumore, 12

Times the President Called in the

Military Domestically, Chi. Trib.

(June 1, 2020, 5:49 PM) ....................................... 26

Jeff Bovarnick, Perpich v. United States

Department of Defense: Who’s in

Charge of the National Guard, 26

New Eng. L. Rev. 453 (1991) ............................... 18

Centinel, Revived, No. XXIX, September

9, 1789, in The Origin of the Second

Amendment: A Documentary History

of the Bill of Rights (David E. Young

ed., 2d ed. 1995) ................................................... 13

The Critical Role of the National Guard

at Home and Abroad: Hearing Before

the H. Comm. on Gov’t Reform,

109th Cong. (2005) ............................................... 26

Benjamin Daus, Note, The Militia

Clauses and the Original War

Powers, 11 J. Nat’l Sec. L & Pol’y

489 (2021) ................................................... 9, 10, 16

vii

TABLE OF AUTHORITIES—continued

Page(s)

Debate before the Convention of the

Commonwealth of Virginia (June 5,

1788), in 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Jonathan Elliot ed., Philadelphia, J.B.

Lippincott Co. 2d ed. 1891) ...................... 6, 7, 8, 11

Debates and Other Proceedings of the

Convention of Virginia, Convened at

Richmond, on Monday the Second

Day of June, 1788 (Richmond,

Ritchie & Worsley 2d ed. 1805) ............................. 8

William M. Donnelly, The Root Reforms

and the National Guard, Center of

Military History (May 3, 2001),

perma.cc/TF9F-NLZD .............................. 20, 21, 22

Michael D. Doubler, Civilian in Peace,

Soldier in War: The Army National

Guard, 1636-2000 (2003) ......................... 22, 23, 24

Efficiency of the Militia: Hearings on

H.R. 15345 Before the Comm. on Mil.

Affs., 57th Cong. (1902) ....................................... 19

The Federalist No. 4 (John Jay) (Clinton

Rossiter ed., 1961) ................................................ 10

The Federalist No. 22 (Alexander Hamilton) (Clinton Rossiter ed., 1961) ......................... 7

viii

TABLE OF AUTHORITIES—continued

Page(s)

The Federalist No. 29 (Alexander Hamilton) (Clinton Rossiter ed., 1961) ............. 5, 10, 11

The Federalist No. 46 (James Madison)

(Clinton Rossiter ed., 1961) ................................... 8

H.R. Rep. No. 64-695 (1916)...................................... 22

Alan Hirsch, The Militia Clauses of the

Constitution and the National

Guard, 56 U. Cin. L. Rev. 919 (1988) .................... 9

Richard H. Kohn, Eagle and Sword: The

Federalists and the Creation of the

Military Establishment in America,

1783-1802 (1975) ................................ 15, 16, 17, 18

Lloyd E. Krase, The 1933 National

Guard Bill, U.S. Army War Coll. 7

(March 14, 1988), perma.cc/T6ZES2U6 ..................................................................... 22

James T. Lang, Should I Stay or Should

I Go: The National Guard Dances to

the Tune Called by Two Masters,

39 Case W. Rsrv. L. Rev. 165 (1989) ............. 17, 18

Robert Leider, Federalism and the Military Power of the United States,

73 Vand. L. Rev. 989 (2020)......................... 5, 9, 16

TABLE OF AUTHORITIES—continued

Page(s)

James Madison, Notes of Debates in the

Federal Convention of 1787

(Adrienne Koch ed. 1984)....................................... 7

Luther Martin, The Genuine Information Delivered to the Legislature

of the State of Maryland (1788), in 2

The Complete Anti-Federalist

(Herbert J. Storing ed., 1981) .............................. 11

Luther Martin, Letter to the Printer, in

15 The Documentary History of the

Ratification of the Constitution (John

P. Kaminski & Gaspare J. Saladino

eds., 1984)............................................................. 12

Jason Mazzone, The Security Constitution, 53 UCLA L. Rev. 29 (2005) ........................... 6

National Guard Fact Sheet Army National Guard (FY2005), Army Nat’l

Guard (May 3, 2006),

perma.cc/9NY6-GU9V .................................... 26, 27

National Guard Technician Reclassification: Hearing Before the Subcomm.

on Emp. Benefits of the H. Comm. on

Post Off. & Civ. Serv., 92d Cong.

(1972) .................................................................... 24

TABLE OF AUTHORITIES—continued

Page(s)

Office of the Under Secretary of Defense, Operation and Maintenance

Overview United States Department

of Defense Fiscal Year 2022 Budget

Request, U.S. Dep’t of Def.

(Aug. 2021), perma.cc/755K-HAK4 ............... 30, 31

3 The Records of the Federal Convention

of 1787 (Max Farrand ed., 1911) ........................... 7

Theodore Roosevelt, First Annual Message to Congress, Dec. 3, 1901, in 15

A Compilation of the Messages and

Papers of the Presidents (James D.

Richardson ed., 1917)........................................... 20

S. Rep. No. 57-2129 (1902) ........................................ 19

S. Rep. No. 331, 99th Cong., 2d Sess.

213-214 (1986) ...................................................... 25

Supporting the Reserve Components as

an Operational Reserve and Key Reserve Personnel Legislative Initiatives: Hearing Before the Mil. Pers.

Subcomm. of the H. Comm. on

Armed Servs., 111th Cong. (2010) ....................... 26

Transforming the National Guard: Resourcing for Readiness: Hearing

Before the H. Comm. on Gov’t

Reform, 108th Cong. (2004) ........................... 25, 27

TABLE OF AUTHORITIES—continued

Page(s)

H. Richard Uviller & William G.

Merkel, The Militia and the Right to

Arms or How the Second Amendment

Fell Silent (2003) .................................................. 16

Noah Webster, A Citizen of America

(Oct. 17, 1787), reprinted in 1 Harry

L. Wilson, Gun Politics in America:

Historical and Modern Documents in

Context (2016) ........................................................ 8

Frederick B. Wiener, The Militia Clause

of the Constitution, 54 Harv. L. Rev.

181 (1940) ....................................................... 17, 21

BRIEF FOR MILITARY LAW SCHOLARS AS

AMICI CURIAE SUPPORTING RESPONDENTS

INTEREST OF THE AMICI CURIAE1

Amici are scholars of military law. They are

deeply concerned about the implications of the interpretive approach advocated by petitioners and certain

of their amici. That approach calls into question Congress’s constitutional authority to regulate the National Guard in a manner that best serves the national interest; if embraced by this Court, petitioners’

approach would undermine national security and military readiness. The Framers of the Constitution

drafted the Militia Clauses to forestall just such a result. Accordingly, amici submit this brief to assist the

Court in the resolution of this case.

Amici include:



Eugene R. Fidell is a scholar of military law

who has taught the subject at Yale, NYU,

Harvard, and American University. He is a

Senior Research Scholar at Yale Law

School, an Adjunct Professor at NYU Law

School, the editor of Global Military Justice

Reform (globalmjreform.blogspot.com), and

President Emeritus of the National Institute of Military Justice.



Brenner Fissell is associate professor of law

at Villanova University and a co-author of

Pursuant to Rule 37.6, amici affirm that no counsel for a party

authored this brief in whole or in part and that no person other

than amici and their counsel made a monetary contribution to

its preparation or submission. The parties have consented to the

filing of this brief.

the leading military-law casebook in the

United States.



Franklin Rosenblatt is assistant professor

of law at Mississippi College and a retired

lieutenant colonel in the Army JAG Corps.



Rachel VanLandingham is the Irwin R.

Buchalter Professor of Law at Southwestern Law School and a retired lieutenant

colonel in the Air Force JAG Corps.

INTRODUCTION AND

SUMMARY OF ARGUMENT

A. Respondents show the Federal Service LaborManagement Relations Statute applies to civilian National Guard technicians; amici fully endorse respondents’ arguments on that point and do not repeat them

here. Instead, we address the interpretive approach

embraced by petitioners and certain of their amici,

who assert that the Constitution confers principal authority over militias on the States—and that federal

laws regulating the National Guard either should be

construed narrowly or held unconstitutional. Petitioners thus contend that there is a “centuries-old status

quo” that “treats state militias as state entities,” “with

respect to which Congress must speak clearly if it

wishes to interfere.” Pet. Br. 32. Petitioners’ amici go

even further, maintaining that “States retain primary

control over the militia” (Mississippi Br. 2-3) and that

federalization of the National Guard “erodes the [constitutional] design.” Id. at 2.

This understanding is both wrong and dangerous.

The Constitution’s Framers thought it essential that

militias principally be subject to federal authority and

regulation—with limited and closely defined excep-

tions regarding the appointment of officers and training, which was left to the States. They regarded federal control as necessary for the development of an effective national military force. The wisdom of that

judgment was demonstrated repeatedly over the following century, when control of militias was left to the

States in practice; the result, during the War of 1812,

the Civil War, and other military conflicts, was often

disastrous. Congress responded to the failures of a

state-centered militia system with the greatly increased federalization of the militias, now called the

National Guard, a process that has proceeded since

the beginning of the twentieth century.

The National Guard is now a central and essential

component of the nation’s military, as anticipated by

the Framers. The approach advocated by petitioners

and their amici would cause a radical change in this

long-standing integration of the National Guard into

a coherent, uniformly regulated, modernized, and effective force. That result would greatly undermine the

nation’s ability to respond to international and domestic threats. The Court should reject it.

B. The Framers drafted the Constitution’s Militia

Clauses as a response to the state-centered militia

system created by the Articles of Confederation, which

was widely regarded as ineffective. The drafters of the

Militia Clauses called for greater federal control over

militias to promote uniformity and ensure a more effective national defense; proponents and opponents of

the Constitution agreed that the Clauses do give the

federal government principal control over militias.

The point was confirmed by adoption of the Second

Amendment, which responded to concerns about a

possibly overbearing federal military, not by limiting

federal or increasing state authority over militias, but

by confirming the right of the populace to bear arms.

Similarly, members of early Congresses uniformly

agreed that the federal government had the authority

to pervasively regulate militias; Congress’s failure to

take that step in the first Militia Act was the result of

political compromise, not of concern about a lack of

federal authority.

C. Continued state control over militias during

the nineteenth century led to catastrophic failures by

the nation’s military. Consequently, beginning with

the presidency of Theodore Roosevelt, the federal government has taken continuing steps to federalize the

militias into a National Guard that is an effective and

integral element of the United States’ military force.

As thus constituted, the Guard now plays a key role

in responding to international and domestic threats of

every nature. Stepping away from that approach, and

diminishing the uniform exercise of federal regulatory

control over the militias, would greatly undermine national security.

D. Even if the constitutional history is disregarded and militias are regarded as principally state

entities, civilian technicians—the subject of this litigation—are federal employees. Accordingly, if there is

any doubt about the constitutional status of the National Guard as a general matter, that doubt does not

infect this case, which concerns federal authority over

the federal government’s own employees.

ARGUMENT

Founding-era history reveals that the Framers expected the Federal Government to

play a central role in regulating militias.

In maintaining that the Court should strain to

limit federal authority over the National Guard, petitioners and their amici suggest that the Framers intended militias to be state-centered entities. But that

is not so; in fact, the Framers thought it essential that

the regulation of militias be primarily federal in nature. If there is to be a thumb on the scale in the interpretation of federal laws that relate the National

Guard, it should be placed on the federal side of the

balance.

Having witnessed the failures of a true statebased militia system under the Articles of Confederation, the Framers recognized that an effective national defense demanded the kind of “uniformity [that

could] only be accomplished by confiding the regulation of the militia to the direction of the national authority.” The Federalist No. 29, at 182 (Alexander

Hamilton) (Clinton Rossiter ed., 1961). Thus, the Militia Clauses, U.S. Const. Art. I, § 8, Cls. 15, 16, “transformed the * * * militia system into a primarily national military auxiliary to the professional forces.”

Robert Leider, Federalism and the Military Power of

the United States, 73 Vand. L. Rev. 989, 1001 (2020).

Indeed, there was broad consensus at the time of

the Founding not only that there needed to be greater

federal power over the militias, but also that the Constitution did increase that power. The Constitution’s

opponents even feared that it vested Congress with

“unlimited” authority over militias. Debate before the

Convention of the Commonwealth of Virginia (June 5,

1788), in 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 52

(Jonathan Elliot ed., Philadelphia, J.B. Lippincott Co.

2d ed. 1891) (Elliot’s Debates) (statement of Patrick

Henry). For this reason, early limits that Congress imposed on federal regulation of the militia system expressed not the full extent of federal constitutional

power, but rather political compromises that in practice reproduced the worst ills of the Articles of Confederation and hobbled our national defense for over a

century. The Framers manifestly did not intend that

such defects be constitutionally required.

A. At the Constitutional Convention, the

Framers rejected the debilitating weaknesses of the decentralized military

structure under the Articles of Confederation.

The Framers recognized that the Articles of Confederation had set up a decentralized military system

that impeded the national defense. Although the Articles empowered Congress to wage war, they relied

upon the States to contribute the necessary money

and soldiers. Articles of Confederation of 1781, Art.

IX, paras. 1, 5; id. Art. VI, para. 4. And because Congress had no mechanism for enforcing national guidelines regarding militias or for securing state compliance, the United States’ war-making power was at the

mercy of often-uncooperative States. Jason Mazzone,

The Security Constitution, 53 UCLA L. Rev. 29, 75-77

(2005).

From the Federalist Papers to the State ratifying

conventions, the Framers accordingly criticized the

Articles’ failure to provide for collective security. Denouncing their “ruinous” impact on military readiness

and how it resulted in unequal burdens for the States,

Alexander Hamilton characterized the Articles’ warmaking system as one “of imbecility in the Union, and

of inequality and injustice among the members.” The

Federalist No. 22, at 146 (Alexander Hamilton) (Clinton Rossiter ed., 1961). Similarly, at the Constitutional Convention, Charles Pinckney recalled the “serious mischiefs” that ensued under the Articles due to

“dissimilarity” among State militias. James Madison,

Notes of Debates in the Federal Convention of 1787, at

483 (Adrienne Koch ed. 1984) (Madison’s Notes). And

in North Carolina, William Davie declared that the

Articles’ inability to ensure “effectual protection” was

“universally acknowledged” as “one of [their] greatest

defects.” Elliot’s Debates 17 (statement of William Davie).

Prominent Founding Fathers therefore called for

greater federal control over militias to promote uniformity and ensure a more effective national defense.

Pinckney, for example, was convinced that “[t]he

States would never keep up a proper discipline of their

militia,” Madison’s Notes 483, and argued that the militia system “should be as far as possible national.” 3

The Records of the Federal Convention of 1787, at 118

(Max Farrand ed., 1911) (statement of Charles Pinckney). George Mason shared a similar sentiment: Because “[t]hirteen States will never concur in any one

system,” he reasoned that the power of regulating the

militia was “necessary to be given to the Gen Government.” Madison’s Notes 478. And James Madison

stressed the risks of repeating the mistakes of the

past: “Without uniformity of discipline,” he cautioned,

“military bodies would be incapable of action: without

a general controlling power to call forth the strength

of the union, * * * the country might be overrun and

conquered by foreign enemies * * * [or] our liberties

* * * destroyed by domestic faction.” Debates and

Other Proceedings of the Convention of Virginia, Convened at Richmond, on Monday the Second Day of

June, 1788, at 73 (Richmond, Ritchie & Worsley 2d ed.

1805).

At the same time, the Framers recognized concerns that concentrating too much power in the federal government could lead to expansion of a standing

army, which was seen as an enabler of tyranny. As

Edmund Randolph recounted during Virginia’s ratifying convention, “there was not a member in the federal Convention, who did not feel indignation” at the

prospect of a national standing army. 3 Elliot’s Debates 401; see also Perpich v. Dep’t of Defense, 496 U.S.

334, 340 (1990) (“[T]here was a widespread fear that

a national standing Army posed an intolerable threat

to individual liberty and to the sovereignty of the separate States.”).

The Framers viewed the militias as a solution to

this threat, as bodies that could oppose encroachments by the federal government. Noah Webster remarked that “[t]he supreme power in America cannot

enforce unjust laws by the sword; because the whole

body of the people are armed, and constitute a force

superior to any band of regular troops that can be, on

any pretence, raised in the United States.” Noah Webster, A Citizen of America (Oct. 17, 1787), reprinted in

1 Harry L. Wilson, Gun Politics in America: Historical

and Modern Documents in Context 24, 25 (2016). Madison similarly emphasized the size of State militias,

* * * which were likely to “amount[] to near half a million citizens” and would therefore outnumber any national army, which would not likely exceed “more than

twenty-five or thirty thousand men.” The Federalist

No. 46, at 299 (James Madison) (Clinton Rossiter ed.,

1961).

Nevertheless, even if the militias could serve as a

check on the tyranny of a standing army, this left open

the question of who would regulate the militias.

States worried that vesting full control over the militias in the federal government would pose the same

risk of tyranny as a standing army. See Alan Hirsch,

The Militia Clauses of the Constitution and the National Guard, 56 U. Cin. L. Rev. 919, 937 (1988).

Framers also raised concerns that granting full power

to the federal government would allow it to deploy militiamen far away from their home States and families, leaving militias unavailable for important state

uses. Ibid.

The Framers thus arrived at a compromise. The

federal government would have the authority for “organizing, arming, and disciplining, the Militia,” as

well as “governing” it when in federal service. U.S.

Const., Art. I, § 8, Cl. 16. The States would be reserved

power only over “the Appointment of the Officers, and

the Authority of training the Militia according to the

discipline prescribed by Congress.” Ibid. This compromise resulted in “the transformation of the separate

state militias into a national defense force,” leaving

the States with largely “ministerial duties” over them.

Leider, 73 Vand. L. Rev. at 1004. In regulating the

militias, “[t]he federal government would set the floor

and states could augment.” Benjamin Daus, Note, The

Militia Clauses and the Original War Powers, 11 J.

Nat’l Sec. L & Pol’y 489, 508 (2021).

To be sure, the Constitution did grant the two

specified “modest concessions” to the States by giving

them authority to appoint officers and conduct training. Leider 73 Vand. L. Rev. at 1006. This would ensure that the state militias would be led by men loyal

to the States who would oppose any attempts at tyranny by the federal government. Daus, 11 J. Nat’l Sec.

L. & Pol’y at 510-511. But the power to regulate resided firmly in the federal government. The history

leading to creation of the Militia Clauses, as well as

the ultimate compromise reached at the Constitutional Convention, therefore directly contradict the

claim that “States retain primary control over the militia.” Mississippi Br. 2-3.

B. The Framers uniformly agreed that the

Militia Clauses grant extensive authority

to the federal government to regulate militias.

The words of the Framers themselves further undermine the ahistorical reading of the Constitution

advanced by petitioners’ amici. Leading Federalists

praised the Militia Clauses for bringing the militias

under federal control. John Jay extolled the Clauses

as “plac[ing] the militia under one plan of discipline,

and * * * putting their officers in proper line of subordination to the Chief Magistrate.” The Federalist No.

4, at 48 (John Jay) (Clinton Rossiter ed., 1961). Likewise, Alexander Hamilton discussed the “power in the

Union to prescribe regulations for the militia.” The

Federalist No. 29, at 186 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

Tellingly, when responding to concerns that the

Constitution gave the federal government too much

power over the militias, the Framers never suggested

that the States would in fact have “primary control.”

Instead, the Framers pointed only to the limited authority that States would have over the appointment

of officers and the conduct of training. For example,

Hamilton argued:

If it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the federal government, the

circumstance of the officers being in the appointment of the States ought at once to extinguish it. There can be no doubt that this circumstance will always secure to them a preponderating influence over the militia.

The Federalist No. 29 at 186.

Even opponents of the Constitution agreed that

the Militia Clauses granted sweeping regulatory

power to the federal government. At Virginia’s ratifying convention, Patrick Henry declared that Congress’s “control over our last and best defence [the militia] is unlimited.” Debate before the Convention of

the Commonwealth of Virginia (June 5, 1788), in 3 Elliot’s Debates 52 (statement of Patrick Henry).

Similarly, Luther Martin, who was the Attorney

General of Maryland, a delegate to the Constitutional

Convention, and a leading Anti-Federalist, decried

this extraordinary provision, by which the militia * * * is taken entirely out of the power of

their respective States, and placed under the

power of Congress. * * * They said the States

ought to be at the mercy of the general government, and, therefore, that the militia

ought to be put under its power, and not suffered to remain under the power of the respective States.

Luther Martin, The Genuine Information Delivered to

the Legislature of the State of Maryland (1788), in 2

The Complete Anti-Federalist 58-59 (Herbert J. Storing ed., 1981).

Elbridge Gerry, another delegate to the Constitutional Convention, “strenuously opposed that provision by which the power and authority over the militia

is taken away from the states and given to the general

government,” describing the Militia Clauses as the

“last coup de grace” of state power. Luther Martin,

Letter to the Printer, in 15 The Documentary History

of the Ratification of the Constitution 414, 415 (John

P. Kaminski & Gaspare J. Saladino eds., 1984) (recounting Gerry’s remarks in the debate over the Militia Clause). Likewise, the minority of the Pennsylvania ratifying convention raised similar concerns that

“[t]he absolute unqualified command that Congress

have over the militia may be made instrumental to the

destruction of all liberty.” The Address and Reasons of

Dissent of the Minority of the Convention of Pennsylvania to Their Constituents, in The Complete AntiFederalist 220 (Herbert J. Storing ed., 1985).

The contemporaneous evidence therefore is clear:

There was consensus at the Founding that the Militia

Clauses greatly augmented the federal government’s

authority over the militias by transferring power from

the States to Congress. The contrary argument of petitioners’ amici is incorrect.

C. The Second Amendment reflects the

Framers’ understanding that the Militia

Clauses give the federal government

principal authority over militias.

The drafting of the Second Amendment further

demonstrates that the constitutional contentions of

petitioners’ amici have no basis. The Second Amendment was largely a response to the belief that the Constitution in fact greatly enlarged the power of the federal government over the militias, stripping the

States of much control over their traditional source of

self-defense. As the Court has noted, under the Militia

Clauses, “Congress retain[ed] plenary authority to organize the militia.” District of Columbia v. Heller, 554

U.S. 570, 600 (2008). As a result, there were “pervasive” fears that Congress could use this power to disarm the populace or even “abolish the institution of

the state militia.” Id. at 598, 603. The Framers responded by drafting the Second Amendment to prevent the federal government from disarming the populace and destroying any possibility of self-defense for

the States. Id. at 599.

This solution, however, did nothing to otherwise

alter the balance of control over the militia as enshrined in the Militia Clauses. It took no power away

from the federal government, nor did it grant any additional authority to the States. As Justice Scalia

noted for the Court, “[t]he Second Amendment right,

protecting only individuals’ liberty to keep and carry

arms, did nothing to assuage Antifederalists’ concerns

about federal control of the militia.” Heller, 554 U.S.

at 604 (emphasis added). This observation is supported by contemporaneous writings at the time of the

ratification of the Second Amendment. Thus, in a revival of the Anti-Federalist Papers, Centinel argued,

“[t]he absolute command vested by other sections in

Congress over the militia, are not in the least abridged

by [the Second] amendment.” Centinel, Revived, No.

XXIX, September 9, 1789, in The Origin of the Second

Amendment: A Documentary History of the Bill of

Rights 711, 712 (David E. Young ed., 2d ed. 1995).

The Second Amendment therefore was adopted as

a response to the recognition that the Constitution’s

Militia Clauses do significantly erode state power. It

is telling that this response did not attempt to reallocate authority to regulate the militias between the

federal and state governments, leaving the federal

government with primary control over the militias.

D. Early members of Congress similarly recognized the broad scope of federal power

over the militias and arrived at the Militia Act of 1792 as a political compromise.

1. Early congressional debates over how to regulate the militia system cast further doubt on amici’s

efforts to characterize States as retaining primary

control over the militias. Like the Framers, early

members of Congress viewed the Militia Clauses as a

general grant of authority to the federal government

that should be interpreted broadly. Indeed, during the

debates over the Militia Act of 1792, Rep. Sumpter observed that “the United States have power * * * to say

how the militia shall be organized, but it must be left

to the several States to carry that plan into execution.”

3 Annals of Cong. 423 (1792). Similar views were espoused in the debates over the Militia Act of 1795.

Representative Sedgwick, for example, commented

that the constitutional terms granting Congress authority over the militias were “as full and comprehensive, perhaps, as any in our language,” observing that

“when a general power was granted, all the usual and

known means necessary and proper to carry it into effect were granted also.” 4 Annals of Cong. 1068 (1795).

He concluded that “[i]t would have seemed incongruous to have denied to Congress a complete control over

the militia.” Ibid.

Members of Congress also shared the Framers’

understanding of the limited nature of state control

over the militias. That authority was confined to appointing officers and training members, and should

“receive a strict construction.” 4 Annals of Cong. 1068.

In fact, members argued that the Constitution precluded States from enacting legislation that would defeat an act of Congress in this area or undermine the

uniformity of militia regulations. In this respect, Representative Tracy remarked:

[A]ll the power was vested in Congress by

the first part of the sentence, and a specified

portion reserved to the States, which ought to

be strictly construed, so as to give the several

States no constructive power to defeat any

thing Congress should do upon the subject; or,

prevent uniform and general laws from operating by the interference of local and State

regulations.

Id. at 1070.

Drawing on this broad constitutional mandate,

early Congresses sought to transform the “poorly coordinated, badly disciplined, and casually armed” militias into a force capable of securing the new republic.

Richard H. Kohn, Eagle and Sword: The Federalists

and the Creation of the Military Establishment in

America, 1783-1802, at 137 (1975).

Although the need to establish a more centralized

and uniform militia system therefore was clear, efforts actually to implement that goal ran into serious

political obstacles. The prospect of reform “tread severely on local interests and raised several potentially

explosive issues,” which included not only concerns

over the appropriate balance between national and

state power, but also more specific questions involving

such matters as the burden imposed by fines for noncompliance with federal rules, the schedule of exemptions, and the costs of a national system. Kohn 132. As

Rhode Island’s senators explained, any national law

regulating the militias “would touch the ‘Interest’ and

‘Feelings of every Individual.’” Ibid. (citing Letter

from Joseph Stanton, Sen., & Theodore Foster, Sen.,

to the Governor of R.I. (Feb 17, 1791) (on file with the

Rhode Island State Archives)). This morass of bitter

political disagreement, competing interests, and pet

theories about how the militias should work for years

bogged down the bill that would become the Militia

Act of 1792. Debates were so fierce that members of

Congress described them as “puerile” and “too much

into the minutiae of the business.” Id. at 133. Only the

defeat of the U.S. Army under General St. Clair by a

Native American force, which “literally decimated the

United States’ tiny standing army,” finally forced

Congress to act. Daus, 11 J. Nat’l Sec. L. & Pol’y at

518.

2. Even so, with members of Congress quarreling

over every detail, the Militia Act was rendered so insubstantial that it reproduced the worst ills of the Articles of Confederation. The Act did little more than

“la[y] out the organizational form of the nation’s militia, * * * and left to the states the problem of compelling citizens to fill out these units.” H. Richard Uviller

& William G. Merkel, The Militia and the Right to

Arms or How the Second Amendment Fell Silent 113

(2003). “Nothing in the law * * * guaranteed training

or even uniformity of structure and equipment.” Kohn

187. The Act afforded Congress no authority to enforce

national standards, ensure state compliance, or penalize militia that failed to arm and equip themselves as

the Act required. And, as before, the Act essentially

left the States to fund the national defense, making no

appropriations for the militia. Leider, 73 Vand. L.

Rev. at 1064-1065. In the end, the bill that became the

Act was “stripped of its strongest provisions in order

to satisfy the chorus of conflicting views,” Kohn 133,

and the law passed with its “heart cut out,” Wiener,

54 Harv. L. Rev. at 187.

Given these deficiencies, the Framers had little

praise for the Militia Act. On the contrary, although

political divisions stymied serious reform, leading political figures were cognizant of how the Act’s deficiencies crippled the national defense. For many Federalists, the Act was a disappointment from the beginning. President Washington, for instance, “signed

the [1792] bill, but continued to recommend militia

legislation, as though none had been passed.” Wiener,

54 Harv. L. Rev. at 187. Ultimately, “[n]early everyone agreed that the 1792 law was a failure” and “attempts were made to change the law in virtually

every session for the next three decades.” Kohn 136.

The inevitable result was a widespread lack of

uniformity and non-compliance with the Act’s standards, which produced poorly disciplined and illequipped militias that undermined the nation’s military effectiveness throughout the nineteenth century.

State legislation implementing the Act evinced “tremendous variations on every subject, from unit structures * * * to number of musters.” Kohn 136. State

governors used the appointment power as spoils,

naming as officers “militarily incompetent” political

appointees that undercut battle readiness. James T.

Lang, Should I Stay or Should I Go: The National

Guard Dances to the Tune Called by Two Masters, 39

Case W. Rsrv. L. Rev. 165, 181 n.91 (1989) (quoting

Omar N. Bradley, A General’s Life 108 (1983)). Training was deficient and arms were often lacking. When

militias were called forth to suppress the Whiskey

Rebellion in 1794, Secretary of War Henry Knox esti-

mated that “less than one quarter of some half-million militiamen in the nation possessed arms as required by the 1792 law.” Kohn 135.

From the War of 1812 to the Spanish-American

War, U.S. war efforts suffered due to the ineffectiveness of the militia system. States denied requests for

assistance from militias. Militias refused to follow orders and even abandoned the battlefield. Their inadequate and incompatible training not only hindered

the performance of army regulars but also contributed to key military losses and unnecessary bloodshed. See Lang, 39 Case W. Rsrv. L. Rev. at 183

nn.93-94, 189; Jeff Bovarnick, Perpich v. United

States Department of Defense: Who’s in Charge of the

National Guard, 26 New Eng. L. Rev. 453, 460 (1991).

The “crowning disgrace” of the War of 1812 occurred,

for example, when the militia left the nation’s capital

to be burned by the British. Lang, 39 Case W. Rsrv.

L. Rev. at 183 n.93 (quoting William A. Ganoe, The

History of the United States Army 139 (1942)). And

during the Civil War, “masses of northern militia fled

from the enemy” at the First Battle of Bull Run. Id.

at 183 n.94.

Thus, although petitioners’ amici contend that

“the militia operated much as the Constitution provides” under the Militia Act of 1792, Mississippi Br. 9,

this law was not an affirmative reflection of the extent

of federal authority, but rather an anemic and backward-looking political compromise. The deep discontent with the Militia Act even at the time refutes efforts to cast the Act as the proper scope of federal constitutional power over the militia system.

Against this background, petitioners and their

amici are wrong to contend that federal direction re-

garding management of the militia touches on “matters traditionally left to the States” or “intrudes on

state sovereignty,” such that the Tenth Amendment

should be understood to reserve substantial control

over operation of militias to the States. Pet. Br. 29, 31.

In fact, the whole purpose of the Militia Clauses—and

the Framers’ unambiguously expansive understanding of the authority that the Clauses confer on the federal government—establish that the Constitution itself leaves the States with no prerogatives in this

area, beyond their limited and closely defined role in

the conduct of training and appointment of officers.

National Guard units simply are not state entities

over which the States retain presumptive control.

II. The National Guard’s development reflects

increasing federalization to meet pressing

national security needs.

The political compromises that handicapped the

Militia Act of 1792 had become intolerable by the end

of the nineteenth century. In critiquing the system

created by the first Militia Act as “unworkable,” “obsolete,” and “really almost absurd,” Elihu Root, Secretary of War from 1899 to 1909, reminded Congress:

“[F]or more than one hundred years nearly every

President of the United States has urged Congress to

take some action to improve our militia system.” Efficiency of the Militia: Hearings on H.R. 15345 Before

the Comm. on Mil. Affs., 57th Cong. 1-2 (1902); see S.

Rep. No. 57-2129, at 1-2 (1902) (quoting criticism by

Presidents Washington, Jefferson, Madison, and Monroe).

Echoing comments of his predecessors, President

Theodore Roosevelt therefore bluntly urged Congress

to increase national control over the militia: “Our militia law is obsolete and worthless. The organization

and armament of the National Guard of the several

States, which are treated as militia in the appropriations by the Congress, should be made identical with

those provided for the regular forces.” Theodore Roosevelt, First Annual Message to Congress, Dec. 3,

1901, in 15 A Compilation of the Messages and Papers

of the Presidents 6396, 6672 (James D. Richardson ed.,

1917).

Root’s and Roosevelt’s efforts led to the passage of

the Dick Act of 1903—the first major congressional act

to reform the militia system since 1792. Pub. L. No.

57-33, 32 Stat. 775; see William M. Donnelly, The Root

Reforms and the National Guard, Center of Military

History (May 3, 2001), perma.cc/TF9F-NLZD. These

bold reforms set the stage for the many subsequent

legislative acts that sought to improve U.S. military

readiness through federal control.

The twentieth century, marked by world wars and

rapid shifts in global conditions, necessitated substantial changes in the country’s reliance upon the National Guard. Contrary to the claims of petitioners’

amici that the Constitution’s “design for military

power was eroded” by the exercise of enhanced federal

authority over the militias, Mississippi Br. 9, the

Guard’s arc toward federalization has been an indispensable guarantor of U.S. national security in today’s unpredictable global landscape—just as the

Framers anticipated and intended. Petitioners are incorrect to ask for an interpretive presumption that

would preclude an effective federal response to national and global problems.

A. Throughout the twentieth century,

states increasingly ceded control over

militias to Congress in exchange for federal funding.

Starting with the Dick Act of 1903, which “provided for an Organized Militia, to be known as the National Guard, which should conform to the Regular

Army organization, be equipped through federal

funds, and be trained by Regular Army instructors,”

Frederick B. Wiener, The Militia Clause of the Constitution, 54 Harv. L. Rev. 188, 195 (1940), Congress

passed a series of laws that increasingly integrated

the Guard into the nation’s military apparatus. That

structure is essential to U.S. national security.

Five years after the passage of the Dick Act, Congress amended it to further increase federal involvement. The amendment allowed the President to set

the length of federal service, dropped the ban on

Guard units serving outside the territories of the

United States, established the Guard’s role as the

Army’s primary reserve force, increased the annual

subsidy of the Guard, and established the Division of

Militia Affairs to serve as the link between the federal

government and the state adjutants general. See Donnelly, supra.

World War I saw an acceleration of these efforts.

Hoping to realize the nation’s full military strength,

Congress passed the National Defense Act of 1916,

which, among other things, required members of the

Guard to take oaths of allegiance to obey both the

President and their state governors; allowed the President to draft Guardsmen into the Army during wartime; provided the National Guard with federal pay

for select activities; empowered federal authorities to

remove state-appointed officers based on statutorily

prescribed qualifications; and organized the Guard

into tactical units in conformity to regular Army

standards. National Defense Act of 1916, ch. 134,

§§ 60, 64, 70, 73, 74, 77, 79, 109, 110, 112, 39 Stat. 166.

In doing so, Congress explicitly stated its intention to

move toward the “federalization of the National

Guard.” H.R. Rep. No. 64-695, at 62 (1916) (Conf.

Rep.).

This response to World War I “demonstrated the

triumph of federal control over the Guard that the

Root reforms had brought.” See Donnelly, supra.

These laws evince how the “National Guard received

federal funds and in return surrendered much of the

autonomy that States’ righters had jealously protected since the ratification of the Constitution.

* * * [T]he National Guard’s acceptance of federal controls in return for funding and legal recognition of its

status as the Army’s combat reserve constitute an historic change in the relationship between State soldiers

and the federal government.” Michael D. Doubler, Civilian in Peace, Soldier in War: The Army National

Guard, 1636-2000 326 (2003).

These moves toward federalization continued up

to the Second World War. The start of the Great Depression in 1929 prompted the “General Staff to place

emphasis on the role of the reserve components—particularly the National Guard,” as Congress looked for

ways to reduce expenditures. Lloyd E. Krase, The

1933 National Guard Bill, U.S. Army War Coll. 7

(March 14, 1988), perma.cc/T6ZE-S2U6. Congress

passed the 1933 amendments to the National Defense

Acts of 1916 and 1920, termed “the child of the National Guard Association,” against this backdrop. Id.

at 20-21 (quoting Rep. Lister Hill).

These amendments further increased federal control of the National Guard. Notably, Congress designated the National Guard as an official reserve component of the U.S. Army and introduced the dual-enlistment system, under which Guard members serve

in both the state national guard and the National

Guard of the United States. Act of June 15, 1933, ch.

87, § 5, 48 Stat. 153, 155-156; see also Perpich, 496

U.S. at 345. This dual enlistment system lives on today and has enabled the federal government to use

the Guard to respond to domestic and international

emergencies.

B. The beginning of the Cold War marked a

substantial change in the National

Guard’s role in U.S. military strategy—

emphasizing unified preparedness and

high-end technological capabilities.

The role of the National Guard in maintaining national security further expanded after World War II.

Because focus on military preparedness and high-tech

weaponry had also increased, the National Guard upgraded its equipment, drawing heavily from excess

federal World War II stocks. See Doubler 229. By

1948, the Guard “experienced its greatest increases

ever in personnel and units. * * * In the summer of

that year, units conducted large-scale field training

for the first time since the mobilization of 1940.” Ibid.

Recognizing the need to train a Guard in use of

modern weaponry, Congress enacted legislation in

1950 to contribute 75% of total costs to construct armories for all reserve components. National Defense

Facilities Act of 1950, ch. 941, § 4, 64 Stat. 830-831.

“The new armories were a radical departure from previous experience * * * . The postwar Guard was no

longer primarily an infantry force, and new training

regimes addressed the increasingly complex training

requirements of mechanized and support forces.” Doubler 230.

The Cold War’s lasting influence can be seen

through the subsequent decades. The need for nearconstant preparedness and an ability to efficiently

mobilize high-tech weaponry was the cornerstone of

postwar military strategy. It was against this backdrop that Congress enacted the National Guard Technicians Act of 1968, Pub. L. No. 90-486, 82 Stat. 755,

which “converted civilian technicians from federally

subsidized state employees to full-fledged federal employees” and advanced “important federal objectives:

uniformity of personnel training, equipment, and

readiness.” Br. of Intervenor-Resp’t. 12.

Over time, the U.S. military became increasingly

reliant upon and integrated with the Guard. As one

representative for civilian technicians testified fifty

years ago: “[Our] forces are not designed to fight a war

by themselves. * * * They rely on the National Guard.

* * * From fiscal year 1971 through fiscal year 1973,

over $2.5 billion of equipment will be furnished to

strengthen the Reserve components. * * * But this

modern weaponry will be of little value without the

well-trained civilian technicians to man it and train

the guardsmen.” National Guard Technician Reclassification: Hearing Before the Subcomm. on Emp. Benefits of the H. Comm. on Post Off. & Civ. Serv., 92d

Cong. 5-6 (1972) (statement of John Hunter, Executive Vice President, Association of Civilian Technicians). By 1986, the Army National Guard provided

46% of the combat units and 28% of the support forces

for the U.S. Army. Perpich, 496 U.S. at 346 & n.18.

By the late 1980s, Congress acknowledged that

this increased integration meant an increased need

for National Guard preparedness. Passing the Montgomery Amendment, which eliminated the need for

the President to secure gubernatorial consent before

sending Guard units abroad for training, Congress observed that heightened security demands required

lengthier and specialized training for all reserve personnel, including the Guard. See S. Rep. No. 331, 99th

Cong., 2d Sess. 213-214 (1986).

As the then-Chief of the National Guard Bureau

expressed to Congress in 2004, “[a]t no time since

World War II has America depended more on its Citizen-Soldiers and Airmen.” Transforming the National

Guard: Resourcing for Readiness: Hearing Before the

H. Comm. on Gov’t Reform, 108th Cong. 82 (2004)

(statement of Steven Blum, Chief, National Guard

Bureau). Efforts to consolidate and create “a single

joint force headquarters in each state for all Army and

Air Guard activities” at that time comprised part of a

broader effort to “become seamless with the other five

services—the Army, Navy, Air Force, Marine Corps,

and the Coast Guard—and their reserve components

as well.” Id. at 88-89. The same federal interests in

maintaining a unified national-security apparatus—

capable of responding to both domestic and international emergencies—are critical today.

C. Congress has an interest in maintaining

a National Guard that is coherent, welltrained, and ready to take on the needs

of an increasingly interconnected and

unpredictable world.

Even the most cursory look at domestic and international events reveals the imperative need for a National Guard that is available to respond effectively to

federal needs.

Domestically, within the past few decades the

Guard repeatedly has been called upon to support

law-enforcement responses to civil unrest and to respond to natural disasters. Most recently, it has been

used extensively to assist with COVID-19 related

needs. Jonathon Berlin & Kori Rumore, 12 Times the

President Called in the Military Domestically, Chi.

Trib. (June 1, 2020, 5:49 PM), perma.cc/P9MD-KJ9X;

Admin. for Strategic Preparedness & Response, The

National Guard’s Response to COVID-19, U.S. Dep’t

of Health & Hum. Servs., perma.cc/QE8S-9EV4.

And the National Guard has had a central role in

preserving national security. Guard members have

been deployed time and again in missions around the

world. See Supporting the Reserve Components as an

Operational Reserve and Key Reserve Personnel Legislative Initiatives: Hearing Before the Mil. Pers. Subcomm. of the H. Comm. on Armed Servs., 111th Cong.

136 (2010) (statement of Harry M. Wyatt III, Lieutenant General & Director, Air National Guard). In fact,

nearly one-third of all of the U.S. soldiers serving in

Iraq were National Guard troops. The Critical Role of

the National Guard at Home and Abroad: Hearing Before the H. Comm. on Gov’t Reform, 109th Congress 1

(2005) (statement of Rep. Tom Davis, Chairman, H.

Comm. on Gov’t Reform); see also National Guard

Fact Sheet Army National Guard (FY2005), Army

Nat’l Guard (May 3, 2006), perma.cc/9NY6-GU9V

(National Guard Fact Sheet). The Guard likewise has

been a key component in the fight against terrorism,

patrolling U.S. airspace after the attacks of September 11, 2001; assisting with security and recovery efforts at the World Trade Center and the Pentagon;

augmenting security along U.S. national borders; and

conducting peacekeeping and stabilization actions in

the Balkans and elsewhere. Transforming the National Guard: Resourcing for Readiness: Hearing Before the H. Comm. on Gov’t Reform, 108th Cong. 71-72

(2004) (statement of Thomas F. Hall, Assistant Secretary of Defense for Reserve Affairs, U.S. Department

of Defense); see National Guard Fact Sheet.

In a world marked by pandemic, insurrection, and

military conflict, there is no reason to imagine that

these needs will abate. It therefore is imperative that

the National Guard is positioned to address national

priorities. But the constitutional theory and understanding of the Guard’s status that is advanced by petitioners and their amici would make such an effective

and coherent Guard impossible.

Those amici maintain that, in the last century, expanding federal use of the Guard has eroded the Constitution’s design for military power, “imperiling liberty, accountability, and safety.” Mississippi Br. 9.

They posit that the federalization of the Guard over

that time has been unconstitutional, an understanding that would return the Guard to its status prior to

the enactment of the Dick Act (or, perhaps, even further back, to its operation prior to enactment of the

Militia Act of 1792)—a period when the ineffectiveness of state militias had disastrous consequences for

U.S. military readiness and security. The Framers anticipated and rejected such a result, which should be

intolerable in an era when there is a compelling need

for hundreds or thousands of well-trained Guard

members to be ready for national service at a moment’s notice.

To the extent that petitioners and their amici

mean to argue not that all congressional acts that increased federalization of the National Guard are unconstitutional, but rather that Congress has simply

gone too far in its nationalization of the Guard, their

contention remains insupportable. Both sides of the

debate over the Militia Clauses recognized that, as

drafted, the Constitution gave Congress the authority

to determine the appropriate extent of federalization

of the militia. In departing from the approach of the

Articles of Confederation, the Militia Clauses do not

establish vague gradations of appropriate federal control—aside from their express textual commitment to

the States of the authority to appoint officers and conduct training. Indeed, the imprecision of petitioners’

approach, and the confusion it would foster, would be

especially destructive of national military readiness,

making uniformity impossible and leaving uncertain

the lines of authority. Framers who were concerned

about hobbling the nation’s defense capabilities could

not have favored such a result.

III. Even if the National Guard is a dual state

and federal venture, civilian technicians

within the Guard are overwhelmingly federal in nature.

Petitioners’ argument is wrong for another reason, as well. The Technicians Act converted civilian

National Guard technicians to federal-employee status so as to provide them a uniform system of federal

benefits. Although this legislation recognized state

administrative authority, civilian technicians hold a

status that is overwhelmingly federal in nature. Accordingly, even if there is some doubt about the constitutional status of the National Guard as a general

matter, that doubt does not infect this case, which concerns federal authority over federal employees.

A. Congress federalized civilian National

Guard technicians to ensure mission

readiness.

Because the National Guard is not a full-time active force, technicians are employed to meet the

Guard’s day-to-day administrative, training, and logistical needs. See Simpson v. United States, 467 F.

Supp. 1122, 1128 (S.D.N.Y. 1979). The Technicians

Act provides for the employment by local National

Guard units of civilian “technicians” who perform a

variety of administrative, clerical, and technical

tasks. This is a change in status from that prevailing

prior to 1968, when all technicians, except those in the

District of Columbia, were state employees paid with

federal funds. Walch v. Adjutant Gen.’s Dep’t of Tex.,

533 F.3d 289, 295-296 (5th Cir. 2008).

The history and text of the Technicians Act leave

little doubt that civilian technicians are federal employees. Against the backdrop of inadequate state retirement systems, Congress converted civilian technicians to federal-employee status to provide them a

uniform system of federal salaries, retirement, and

fringe benefits, and to clarify their status under the

Federal Tort Claims Act. Walch, 533 F.3d at 295. An

overwhelming majority of civilian technicians occupy

dual status under 32 U.S.C. § 709(a), meaning that

their employment is conditioned on concurrent military membership in the National Guard. Critically,

this statute unambiguously provides that “[a] technician employed under subsection (a) is an employee of

the Department of the Army or the Department of the

Air Force, as the case may be, an employee of the

United States.” 32 U.S.C. § 709(e). Even non-dual status technicians who are not required to maintain military membership are considered “civilian employee[s]

of the Department of Defense” and occupy federal status. See 32 U.S.C. § 709(c)(1); 10 U.S.C. § 10217(a).

Although state adjutant generals supervise civilian technicians, that has no bearing on the technicians’ status as federal employees. See Br. of Intervenor-Resp. 15-17. And that status cannot be reconciled

with petitioners’ and their amici’s characterization of

this case as principally concerned with state sovereignty. See Br. of Federal Resp. 38-39.

B. The funding and regulatory regime behind the National Guard confirms that

civilian technicians are federal employees.

The conclusion that the treatment of National

Guard technicians is predominantly the concern of the

federal government is confirmed by the practicalities.

The Guard and its technicians are significantly

funded by the United States. Every year, the Department of Defense (DoD) requests billions of dollars

from Congress on behalf of the Guard, ensuring that

its components are adequately funded and supported

so as to maintain crucial operations. In their actual

function, National Guard units and technicians are

substantially federal in character.

Indeed, approximately ten percent of total United

States Army and Air Force funding goes toward the

National Guard. In 2022, the Army requested a

budget of over $69 billion, of which $7.6 billion was

allocated for the Army National Guard. See Office of

the Under Secretary of Defense, Operation and

Maintenance Overview United States Department of

Defense Fiscal Year 2022 Budget Request, U.S. Dep’t

of Def. 1 (Aug. 2021), perma.cc/755K-HAK4 (Budget

Request). Similarly, $67 billion was requested for the

Air Force, of which $6.6 billion was allocated to the

Air Force National Guard. Ibid.

Nearly one in ten National Guard employees is

hired as a civilian technician, constituting a notable

source of manpower and budgetary commitment. As

of 2021, there were approximately 336,500 Army National Guard members, of which 21,031 are civilian

technicians, while roughly 9,681 of the 108,100 Air

National Guard members are civilian technicians.

Budget Request 168. These figures illuminate just how

integrated with and dependent on long-standing

Army, Air Force, and military budgetary appropriations the National Guard and its technicians are.

State contributions to the National Guard pale in

comparison to the significant funding requested by

DoD and supplied by Congress every year. The federal

interest predominates here, and the Court should construe federal legislation governing the National

Guard with that reality in mind.

CONCLUSION

The decision of the United States Court of Appeals

for the Sixth Circuit should be affirmed.

Respectfully submitted.

PAUL W. HUGHES

MICHAEL B. KIMBERLY

McDermott Will &

Emery LLP

500 N. Capitol St., NW

Washington, DC 20001

CHARLES A. ROTHFELD

Counsel of Record

ANDREW J. PINCUS

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3000

crothfeld@mayerbrown.com

EUGENE R. FIDELL

Yale Law School

Supreme Court Clinic

127 Wall Street

New Haven, CT 06511

Counsel for Amici Curiae

DECEMBER 2022



The representation of amici by a Clinic affiliated with Yale Law

School does not reflect any institutional views of Yale Law School

or Yale University.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.