# Petition for Writ of Certiorari — Perpich v. Department of Defense > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0681%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 496 U.S. 334 ## Text P — a - Th, 89-542 [em 5 IN THE Supreme Court of the United States OCTOBER TERM. 1988 RUDY PERPICH, as Governor of the State of Minnesota, and THE STATE OF MINNESOTA, by its Attorney General Hubert H. Humphrey, III, Petitioners, vs. UNITED STATES DEPARTMENT OF DEFENSE, et al., Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT (PART I) HUBERT H. HUMPHREY, III Attorney General State of Minnesota JOHN R. TUNHEIM Chief Deputy Attorney General Of Counsel: Counsel of Record PETER M. ACKERBERG 102 State Capitol Special Assistant St. Paul, Minnesota 55155 Attorney General Telephone: (612) 296-2351 Ker Review Publishing Ce. 287 E Gt) St, St Paul, Min. r — «226-7631 wt al — —: — —— Rr QUESTION PRESENTED Can Congress abrogate the States’ specifically reserved au- thority for militia training in the absence of a declared na- tional emergency without violating the militia training clause of the United States Constitution, art. I, § 8, cl. 16? PARTIES TO THE PROCEEDINGS In addition to the partie: listed in the caption, the following are respondents: United States Department of the Air Force, United States Department of the Army, National Guard Bu- reau, the Secretary of Defense, the Secretar. of the Army, the Secretary of the Air Force, and the Chief of the National Guard Bureau. . ̃ ͤòVꝛqi ee ee —— e iad » a > 4 be * 7 4 — 7 ~ — Statement Of The Cases Reasons For Granting The Writ . 1 1. The Eighth Cireuit's Decision Is 2. There Are Strong Reasons To Believe The Eighth Circuit’s Decision Was Wrong Conclusion sates 335274 * APPENDIX — PARTS I & II 1. Eighth Circuit en bane opinion (Part I) 2. Amended Order (Part I) 8. Eighth Circuit panel opinion (Part II) 4. District Court memorandum order (Part II) oan wo — 15 TABLE OF AUTHORITIES * United States Constitution: Page U.S. Const. art. 1, § 8, cl. 12 R U.S. Const. art. I. § 8, cl. 15 OTe rr U.S. Const. art. I, § 8, cl. 16 ü A ooo 0000088. 8 Minnesota Constitution „„ 5 Federal Statutes: SE 2 V 5 V 5 10 U.S.C. 8 672 (b) A tee oa ee 3,5 10 U.S.C. § 672(d) pk MOS ots San Me 10 U.S.C. § 672(f) 4,5 „ „ „ ckk 5 r ò⅛ͤkT T 5 r 2 r a 2 D 2 VW 2 r 2 5 „„ „ cee 5 Minnesota Statutes: Minn. Stat. § 190.02 (1980))) 5 iii —_—— r ee Te eee ͤB. “ : Federal Decisions: Page Dukakis v. United States Department of Defense, 859 F.2d 1066 (Ist Cir. 198890) 9, 10 Gareia v. San Antonio Metropoliten Transit Authority, 469 U.S. 528, 549 (19880) 8 8, 13 Massachusetts v. United States Dept. of Defense, e... 8 9 New York v. United States, 996 U.S. OTR, ee)) 14 Selective Draft Law Cases, „„ „„ „ „„ 6, 7, 13, 14 Ullman v. United States, INL. CRBS) .... «5 cece ences. 14 United States v. Carver, 260 U.S. 48%, 490 (1983) ᷑ 2-2-2 eee eee 9 Woodson v. Murdock, 89 U.S. (22 Wall.) 351, 369 (187) ll Decisions of Other Jurisdictions: United States v. Hudson, 5 M. J. 413, 418 (C.M.A. 1970) 10 United States v. Peel, 4 M. J. 28, 29 (C. M. A. 1977) dn 10 United States v. Self, 13 M.J. 132, 185 (C.M.A. 1978) 1 lv * r .... . eee ee vv IN THE Supreme Court of the United States OCTOBER TERM, 1988 No. RUDY PERPICH, as Governor of the State of Minnesota, and THE STATE OF MINNESOTA, by its Attorney General Hubert H. Humphrey, III, Petitioners, vs. UNITED STATES DEPARTMENT OF DEFENSE, et al., Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT The petitioners respectfully pray that a writ of certiorari issue to review the judgment and opinion of the United States Court of Appeals for the Eighth Circuit, entered in the above- entitled proceeding on June 28, 1989. OPINIONS BELOW The en banc opinion of the Court of Appeals for the Eighth Circuit is reported at 880 F.2d 11, and is reprinted in the ap- pendix hereto (Part I), p. A-1. The panel opinion of the Court of Appeals for the Eighth Circuit has not been reported. It is reprinted in the appendix hereto (Part II), p. A-63. The memorandum decision of the United States District Court for the District of Minnesota (Alsop, J.) is reported at 666 F. Supp. 1319, and is reprinted in the appendix hereto (Part II), p. A-141. JURISDICTION Invoking federal jurisdiction under 5 U.S.C. § 702 and 28 U.S.C. §§ 1331, 2201 and 2202, the petitioners brought this suit in the District of Minnesota. On August 3, 1987, the Dis- trict of Minnesota granted the respondents’ motion for sum- mary judgment and denied the petitioners’ motion for sum- mary judgment. See p. A-153. On petitioners’ appeal, a three-judge panel of the Eighth Circuit on December 6, 1988, reversed the judgment of the district court and remanded the matter for further proceed- ings consistent with the panel’s opinion. See p. A-123. Respon- dents moved for rehearing en banc. On January 11, 1989, the Eighth Circuit granted respondents’ motion for rehearing en banc, and vacated the court’s opinion and judgment of Decem- ber 6, 1988. See p. A-62.1. On June 28, 1989, the judgment of the district court was affirmed by the Eighth Circuit. See p. A-14. The jurisdiction of this Court to review the judgment of the Eighth Circuit is invoked under 28 U.S.C. § 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED U.S. Const. art. I, § 8, cls. 15 and 16 provide: The Congress shall have power 1151 To provide for calling forth the Militia to exe- cute the Laws of the Union, suppress Insurrections and repel Invasions; [16] To provide for organizing, arming, and disciplin- ing the Militia, and for governing such Part of them as may be employed in the Service of the United States, re- serving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia accord- ing to the discipline prescribed by Congress... . U.S. Const. art. 1, § 8, cl. 12 provides: The Congress shall have power [12] To raise and support Armies, but no Appropria- tion of Money to that Use shall be for a longer Term than two Years.... 10 U.S.C. §§ 672(b) and (d) (1982) provide: (b) At any time, an authority designated by the Sec- retary concerned may, without the consent of the persons affected, order any unit, and any member not assigned to a unit organized to serve as a unit, in an active status in a reserve component under the jurisdiction of that Secretary to active duty for not more than 15 days a year. However, units and members of the Army National Guard of the United States or the Air National Guard of the United States may not be ordered to active duty under this subsection without the consent of the governor of the 4 State or Territory, Puerto Rico, or the Canal Zone, or the commanding general of the District of Columbia National Guard, as the case may be. 8 2 * (d) At any time, an authority designated by the Sec- retary concerned may order a member of a reserve com- ponent under his jurisdiction to active duty, or retain him on active duty, with the consent of that member. However, a member of the Army National Guard of the United States or the Air National Guard of the United States may not be ordered to active duty under this subsection without the consent of the governor or other appropriate authority of the State or Territory, Puerto Rico, the Canal Zone, or the District of Columbia, whichever is concerned. 10 U.S.C. § 672(f) (Supp. IV 1986) provides: (f) The consent of a Governor described in subsec- tions (b) and (d) may not be withheld (in whole or in part) with regard to active duty outside the United States, its territories, and its possessions, because of any objec- tion to the location, purpose, type, or schedule of such ac- tive duty. STATEMENT OF THE CASE Respondents ordered members of the Minnesota National Guard to federal active duty for training missions in Central America pursuant to 10 U.S.C. §§ 672 (b) or 672 (d). Com- plaint, para. 16. Members of the Minnesota National Guard are also enlisted in the National Guard of the United States, a reserve component of the national armed torces. 32 U.S.C. §§ 101 (47), 304; 10 U.S.C. 88 101 (11-12), 261, 326i, 8261 (1982 & Supp. V 1987). Petitioner Governor Perpich is com- mander- in- chief of the State’s military forces pursuant to Minn. Const. art. V., § 3, and Minn. Stat. § 190.02 (1988). Complaint, para. 3. He would not have consented to one of the training missions but for the restrictions imposed by 10 U.S.C. § 672(f) (hereinafter “Montgomery Amendment”). Complaint, para. 19. If Petitioner Perpich objects to the loca- tion, purpose, type or schedule of future orders directed at members of he Minnesota National Guard for active duty training outside the United States during peacetime, he would withhold his consent to such orders. Id., para. 21. Petitioners prayed for ihe district court to declare the Montgomery Amendment unconstitutional and moved for sum- mary judgment. Id., prayer fo. relief at p. 7. They argued that the Montgomery Amendment violates U.S. Const. art. I, § 8, cl. 16 (hereinafter “militia training clause”) because that clause expressly reserves to each State authority to train the National Guard, which is the modern-day militia, and thereby requires State consent to National Guard training exercises in peacetime. Respondents moved to dismiss the complaint. They argued that State consent to National Guard training is not constitu- tionally required when the National Guard is ordered to active federal duty. When in federal service, the National Guard is subject to Congress’ plenary power under U.S. Const. art. I, § 8, cl. 12 (hereinafter “army clause”), to provide for the national defense, respondents contended. They further argued, citing the Selective Draft Law Cases, 245 U.S. 366 (1918), that the militia training clause does not constrain Congres- sional authority under the army clause. On August 3, 1987, the district court, adopting respondents’ theory, dismissed the action. See p. A-153. On December 6, 1988, a divided panel of the Eighth Circuit reversed the district court’s judgment and remanded the mat- ter for further proceedings consistent with its opinion. See p. A-123. It held that the Montgomery Amendment is uncon- stitutional because the militia training clause requires State consent to peacetime training of the National Guard. On January 11, 1989, the Eighth Circuit granted respon- dent’s petition for rehearing en banc and vacated the court’s panel opinion and judgment of December 6, 1988. See p. A-62.1. On June 28, 1989, a divided Eighth Circuit en banc affirmed the judgment of the district court. See p. A-1. It upheld the Montgomery Amendment on the ground that the militia train- ing clause does not limit congressional authority to train the National Guard when it is in active federal service and, therefore, State consent to training exercises is not constitu- tionally required. The Eighth Circuit en banc opinion relied in part on the Selective Draft Law Cases in deciding that the Montgomery Amendment does not infringe on State training authority. The Selective Draft Law Cases “made clear that the army clause is not limited by the militia clause,” the majority opinion asserted. See p. A-11. Thus, when Guard units are ordered into federal service in their role as a reserve com- ponent of the federal armed forces, the militia clause is not 7 applicable, it added. See p. A-12-13. Therefore, according to the Eighth Circuit majority, the Montgomery Amendment is a constitutional exercise of Congress’ army powers. See p. A-13. The dissent argued, in part, that Selective Draft Law Cases merely held that Congress could require compulsory military service during wartime an did not support the majority’s view. See p. A-25. Furthermore, it construed the Selective Draft Law Cases to require a “national exigency” before the federal government can exercise its army power to supersede reserve State authority over militia training. See p. A-40-42. Almost a third of the 49-page dissenting opinion focused on the framers’ intent in adopting the militia training clause. It concluded that reserved State authority over the militia “rep- resented [a] fundamental structural decision[] by the Fram- ers” desigred to insulate militia authority “from uncontrolled and potentially irresponsible short-term political reaction.” See p. A-31. ee ee ee eee le ell : n N 2 r REASONS FOR GRANTING THE WRIT DECIDING THAT THE STATES’ EXPRESS CONSTITU- TIONAL AUTHORITY OVER PEACETIME NATIONAL GUARD TRAINING CAN BE NEGATED BY CONGRESS IS AN EXCEPTIONALLY IMPORTANT ERROR DISPLAC- ING AN ASPECT OF STATE SOVEREIGNTY THAT SHOULD BE PROMPTLY CORRECTED. 1. The Eighth Circuit’s Decision Is Exceptionally Impor- tant. The Eighth Circuit made an exceptionally important deci- sion by abrogating a power explicitly reserved to the States by U.S. Const. art. I, § 8, cl. 16. Because the case involves the important subject of federal-state relations coupled with the sensitive matter of governmental power to authorize National Guard training, the Eighth Circuit decision has implications for all the States and the federal government. A decision on such an issue, depriving the states of constitutionally-granted authority, should not remain unreviewed by this Court. The decision that the States can be stripped of their author- ity regarding militia training is all the more egregious because the power is expressly conferred by the Constitution. “With rare exceptions, like the guarantee, in Article IV, § 3, of State territoria! integrity, the Constitution does not carve out ex- press elements of State sovereignty that Congress may not em- ploy its delegated powers to displace.” Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 550 (1985). The militia training clause, like article IV, § 3,' is one of those rare exceptions. 1U.S. Const., art. IV, § 3 requires State legislative consent for the formation of any State “by the junction of two or more states or parts of states r a ee , , c , r The Montgomery Amendment should not be permitted to contravene the general conviction that the Constitution pre- cludes the National Government [from] devour[ing] the es- sentials of state sovereignty. Jd. at 549 (citation omitted). This Court's repeated recognition “that state sovereignty is a fundamental component of our system of government” and that “the states possess constitutionally preserved sovereign powers,” id. at 573-74, (Powell, J., dissenting), will be under- mined by the Montgomery Amendment if this Court does not review and reverse the circuit court. Although this Court denied a petition for a writ of certiorari to the United States Court of Appeals for the First Circuit in a similar State challenge to the constitutionality of the Mont- gomery Amendment, Massachusetts v. United States Dept. of Defense, 109 S.Ct. 1743 (1989), “denial of a writ of certiorari imparts no expression upon the merits of a case, as the bar has been told many times. United States v. Carver, 260 U.S. 482, 490 (1923). Thus, this Court has not addressed the merits of a challenge to Congressional abrogation of the States’ ex- pressly reserved power to authorize militia training. The Court should address the constitutionality of the Mont- gomery Amendment now because military training authority is directly implicated in the circuit court’s decision. The proper allocation of such authority is a sensitive governmental func- tion that should not be the subject of multiple, prolonged and confusing litigation. There is a realistic potential for intercircuit conflict on the constitutionality of the Montgomery Amendment. The Eighth Circuit panel decision was, before its vacation, directly in con- flict with a decision in the First Circuit. Dukakis v. United States Department of Defense, 859 F.2d 1066 (Ist Cir. 1988), cert. denied sub nom. Massachusetts v. United States Dept. of Defense, 109 S. Ct. 1743 (1989). Thus, an intercircuit split has ee ee a ee ee eee. 10 occurred in the past and, therefore, is not a remote future possibility. Furthermore, the Court of Military Appeals con- cluded before enactment of the Montgomery Amendment that the gubernatorial consent requirement of 10 U.S.C. § 672(d) “has constitutional underpinnings” in the militia clause. Unit- ed States v. Peel, 4 M.J. 28, 29 (C. M. A. 1977) ; accord United States v. Self, 18 M. J. 182, 185 (C.M.A. 1978) ; United States v. Hudson, 5 M.J. 418, 418 (C.M.A. 1978). Thus, there is a real potential for a split between the Ccurt of Military Ap- peals and the First and Eighth Circuits. The exceptional importance of authoritatively resolving the validity of the Montgomery Amendment is indicated by the fact that 28 States participated as amici in the Eighth Circuit. See p. A-5, n.5. As respondents properly advised the Eighth Circuit, this matter encompasses “issues of exceptional prac- tical and legal importance.” Petition For Rehearing and Sug- gestion For Rehearing n Banc at 5. Furthermore, as respon- dents have observed, the emergence of conflicting court deci- sions on this issue “can be expected to spawn confusion and much litigation .. . Id. at 15, n.10. This case presents the Court with an opportunity to avoid needless confusion and litigation on a sensitive subject. The circumstances presented to this Court in the earlier petition for a writ of certiorari are significantly different here and make the issue ripe for an authoritative review by the Court. In the earlier case, the First Circuit affirmed the judgment of the District Court upholding the Montgomery Amendment in a one-sentence opinion. Dukakis v. United States Department of Defense, 859 F.2d 1066 (Ist Cir. 1988). In this case, the constitutionality of the Montgomery Amend- ment was independently analyzed in an extensive opinion by the circuit court. Furthermore, the dissenting opinion in the 11 Eighth Circuit case presents a careful review of historical materials evidencing the framers’ intent in adopting the mili- tia training clause. Thus, this Court’s review of the validity of the Montgomery Amendment now would have the benefit of extensive prior consideration by the circuit court, a venefit not presented by the earlier petition. 2. There Are Strong Reasons To Believe The Eighth Cir- cuit’s Decision Was Wrong. The Eighth Circuit erroneously framed the issue before it this way: The issue, simply put, is this: when the State claims a right to control Militia training, and Congress claims, ‘we're training the Army, not the Militia,’ who wins? See p. A-9. By reducing the interplay of the militia training and army clauses to a semantical word game with a predictable winner, the Eighth Circuit oversimplified the issue before it and reached a wrong conclusion. A proper constitutional analysis would examine the text of the relevant provisions in light of the framers’ intentions. Woodson v. Murdock, 89 U.S. (22 Wall.) 351, 369 (1874) (constitutional provisions construed “to express the intention of the framers”). However, the Eighth Circuit en banc opinion does not consider the framers’ intent at all, and that intent is inconsistent with the circuit court’s conclusion. Neither the text of the militia training clause nor the framers’ intent in drafting it support the circuit court’s con- clusion that the Montgomery Amendment is constitutional. The text, as the dissenters put it, “is an unambiguous command ... which we cannot ignore.” See p. A-32. 3 „ rr N ˙ r ee In an exhaustive examination of historical sources evidenc- ing the framers’ intent, the dissent found no indication that “the Framers believed the power to raise armies could super- sede reserved state authority over the militia at will.” See p. A-29. On the contrary, the framers’ intent was to reach a workable compromise between advocates of strong federal control over State militias, who sought to assure the creation and maintenance of an effective national military force, and States’ rights proponents, who feared excesses by a powerful standing army controlled by federal authorities. See p. A-19. One of the resulting compromises was to divide State militia authority between federal and State governments. The federal government was authorized to arm, organize, and dis- cipline the militia. It would also govern the militia when em- ployed in federal service. However, the framers reserved to the States the appointment of officers and the authority of training the militia according to federal standards. This com- promise is unambiguously incorporated into the text of U.S. Const. art. I, § 8, cls. 15 and 16. The framers did not intend that either the State’s reserved powers of appointment and/or its reserved power to authorize training could be usurped at will under the army power by transforming the State militia into a fede.al force for any reason or no reason without regard to whether or not national security was threatened. Such unrestrained federal authority would mean, as the dissenting opinion put it, that “the federal government could use the army power at will to make the militia a federal force under its plenary control, [and] the Militia Clauses could not serve their intended purpose to pro- tect the states against potential oppression by the federal army.” See p. A-30. A divided federal-State authority over the militia was intended to quiet the fear of some framers “that 13 if the militia did not exist to protect state interests, the army might be used by the federal government to oppress the states and their citizens.” See p. A-29. Thus, the militia training clause expressly preserves an aspect of the States’ sovereignty —their power to authorize militia training. The States retain sovereign authority “only to the extent that the Constitution has not divested them of their original powers and transferred those powers to the Federal Govern- ment.” Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 549 (1985). The power to authorize militia training not only was not transferred by the Constitution to the federal government, but instead was expressly reserved to the States. The reliance of the national government on an effective National Guard available for federal service when required presents no obstacle to respecting the State’s expressly re- served authority over National Guard training. The National Guard remains available for federal service for any constitu- tionally permissible purpose, which includes the execution of federal las, suppression of insurrections and repelling in- vasions. U.S. Const. art. I, § 8, cl. 15. Furthermore, the Szlective Draft Law Cases, 245 U.S. 366 (1918), properly construed, authorize the use of the National Guard in cases of acknowledged “exigencies.” The Court in Selective Draft Law Cases stated: But the duty of exerting the [Army Clause] power thus conferred in all its plentitude was not made at once obligatory but was wisely left to depend upon the discre- tion of Congress as to the arising of the exigencies which would call it in part or in whole into play. 245 U.S. at 382-83 (emphasis added). Thus, the Army Clause may be invoked to train National Guard members whenever an » — CB a ee eee ee ee ,,,, eee ůͥ ee 4r ͤᷣ d eas ae -w- nung 14 emergeney is declared by Congress or, additionally, as the dis- sent suggested, the President. See p. A-40-42. Nothing in the Selective Draft Law Cases, which merely upheld the federal government’s authority to conscript male citizens during wartime, suggests that the militia training clause can be rendered superfluous whenever the federal gov- ernment chooses to designate the National Guard as a federal entity and order that entity to engage in training. The circuit court’s reliance on the Selective Draft Law Cases for the proposition that “the army clause is not limited by the militia clause” is not well-founded. By construing the interplay of the two clauses to permit the army clause to checkmate the militia training clause, the circuit court opin- ion collides with this Court’s obligation to construe constitu- tional provisions so that none . . suffer subordination or deletion.” Ullman v. United States, 350 U.S. 422, 428 (1955). The Eighth Circuit’s sweeping construction of the Selective Draft Law Cases eviscerates the militia training clause. This is especially remarkable in light of the narrow holding of the case—that wartime conscription is within Congressional au- thority—and its express language cautioning against “weak- ening or destroying” either state or federal powers under the militia and army clauses. Selective Draft Law Cases, 245 U.S. at 384. The expressly reserved State powers in the Constitution were “designed to keep the balance between the States and the nation outside the field of legislative controversy.” New York v. United States, 326 U.S. 572, 594 (1946) (Douglas, J., dis- senting). The Eighth Circuit, by upholding the Montgomery Amendment, misplaces explicit reserved State authority over militia training squarely into the federal legislative arena. 15 The interplay of the militia and army clauses has not been directly addressed by this Court for more than 50 years be- cause until now Congress has not sought to remove the States’ expressly reserved militia training authority. Now that Con- gress has overstepped its limited authority over militia train- ing, it is time for the Court to revisit the subject. CONCLUSION In light of the Eighth Circuit’s exceptionally important error, the significance of a uniform national construction of the interplay of the army and militia training clauses in the context of authorizing National Guard training, the signifi- cant potential for inter-circuit conflicts on this issue, and the opportunity presented here to avoid unnecessary and pro- longed confusion, the Court should grant this petition. Respectfully submitted, HUBERT H. HUMPHREY, III Attorney General State of Minnesota JOHN R. TUNHEIM Chief Deputy Attorney General Counsel of Record 102 State Capitol St. Paul, MN 55155 Telephone: (612) 296-2351 OF COUNSEL: PETER M. ACKERBERG Special Assistant Attorney General September 26, 1989 A-1 APPENDIX UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT No. 87-5345 Submitted: February 16, 1989 Filed : June 28, 1989 Rudy Perpich, Governor of the State of Minnesota ; State of Minnesota, by its Attorney General Hubert H. Humphrey, III, Appellants, v. United States Department of Defense, United States Department of Air Force, United States Department of Army, National Guard Bureau, Caspar W. Weinberger, Secretary of Defense; John O. Marsh, Jr., Secretary of the Army; Edward C. Aldridge, Secretary of the Air Force; Lt. Gen. Herbert R. Temple, Jr., National Guard Bureau, : Appellees. Commonwealth of Massachusetts, AMICUS CURIAE U. S. National Guard Assn., AMICUS CURIAE Appeal from the United States District Court for the District of Minnesota. | Before McMILLIAN, Circuit Judge, HEANEY, Senior Cir- cuit Judge, ARNOLD, JOHN R. GIBSON, FAGG, BOW- C Ni ae a il i i te A-2 MAN, WOLLMAN, MAGILL, and BEAM, Circuit Judges, EN BANC.* © MAGILL, Circuit Judge. In this opinion, we address a challenge to the constitution- ality of the Montgomery Amendnient, which restricts the power of state governors to withhold consent to federal de- ployment of the National Guard of the United States. We hold that the Constitution does not require gubernatorial consent to active duty for training of the National Guard of the United States. Based on the statutory system of dual enlistment and the relationship between the Constitution’s army and militia clauses, we find the Montgomery Amendment to be a consti- tutional exercise of congressional power. I. In 1985 and 1986, several governors objected to deployment of National Guard personnel to Central America. The gov- ernors withheld (or threatened to withhold) their consent to federally ordered active duty missions by their States’ National Guards. 10 U.S.C. § 672 (b), (d) (1982) .* In response, *The HONORABLE GERALD W. HEANEY, a member of the original panel, assumed senior status on December 31, 1988. The HONORABLE DONALD P. LAY, Chief Judge, did not par- ticipate in the consideration or decision of this case. 1 Reserve units and members of the National Guard of the United States may be activated “at any time * * * for not more than fifteen days a year,” but not without the governor's consent: At any time, an authority designated by the Secretary con- cerned may, without the consent of the persons affected, order any unit, and any member not assigned to a unit organized to serve as a unit, in an active status in a reserve component un- der the jurisdiction of that Secretary to active duty for noi more than 15 days a year. However, units and members of the Army National Guard of the United States or the Air National Guard of the United States may not be ordered to active duty 4 8 Congress enacted the Montgomery Amendment, which pro- hibits the governors from withholding consent to active duty outside the United States because of objections to the location, purpose, type, or schedule of active duty. Id. § 672 (f) (Supp. IV 1986).? Members of the Minnesota National Guard participated in three active duty training missions in Central America in January 1987. After the Guard returned, Governor Rudy Perpich, the Commander in Chief of the State’s military forces, objected to defendants’ ordering the Guard to active duty for training in Honduras.* Because Perpich wanted to under this subsection without the consent of the governor of the State or Territory, Puerto Rico, or the Canal Zone, or the commanding general of the District of Columbia National Guard, as the case may be. 10 U.S.C. § 672(b) (emphasis added). An individual reservist may be ordered to and retained on ac- tive duty “at any time” with the consent of both the reservist and the governor of his state guard: At any time, an authority designated by the Secretary con- cerned may order a member of a reserve component under his jurisdiction to active duty, or retain him on active duty, with the consent of that member. However, a member of the Army National Guard of the United States or the Air National Guard of the United States may not be ordered to active duty under this subsection without the consent of the governor or other appropriate authority of the State or Territory, Puerto Rico, the Canal Zone, or the District of Columbia, whichever is concerned. Id. § 672(d). 2 The Montgomery Amendment, section 522 of the Defense Authori- zation Act for Fiscal Year 1987, provides: The consent of a Governor described in subsections (b) and (d) may not be withheld (in whole or in part) with regard to active duty outside the United States, its territories, and its possessions, because of any objection to the location. ~urpose, type, or schedule of such active duty. 10 U.S.C. § 672(f) (Supp. IV 1986). *The defendants, the Departments of Defense. Army, and Air Force and their Secretaries, and the National Guard Bureau and A-4 withhold consent to further orders, the Governor and the State of Minnesota filed this suit. Perpich sought a declara- tion of the governors’ constitutional authority to withhold consent to peacetime training of the Guard outside of the United States. Perpich asked specifically for a declaration that the Montgomery Ame idment infringes “the Authority of training the Militia” reserved to the States by the Consti- tution. U.S. Const. art. I, § 8, cl. 16. Perpich also sought to enjoin any federal order commanding members of the Minne- sota unit of the National Guard to active duty for training outside of the United States without Perpich’s consent. The district court,‘ in a well-reasoned opinion, held that the dual enlistment system, under which Guard members enlist and serve in both the state National Guard and the federal National Guard of the United States, was a necessary and proper exercise of Congress’ power to raise and support armies. Perpich v. United States Department of Defense, 666 F. Supp. 1319, 1323 (D. Minn. 1987). The court also held that the States’ authority to train the militia did not inhibit Con- gress’ power to provide for active duty training of the National Guard of the United States without the governors’ consent. Perpich, 666 F. Supp. at 1325; accord Dukakis v. United States Department of Defense, 686 F. Supp. 30, 38 (D. Mass.), aff'd 859 F.2d 1066 (Ist Cir. 1988) (per curiam), cert. denied, 109 S. Ct. 1743 (1989). The court granted sum- mary judgment to defendants, and Perpich appealed. its Chief, are the individuals and entities authorized to order reserves to active duty under § 672(b) and (d). We take judicial notice that other members or units of the Minnesota Guard have been or may be ordered to active duty for reserve training in Central America. 4The Honorable Donald J. Alsop, United States District Judge for the District of Minnesota. A-5 A divided panel of this court reversed, holding that the Montgomery Amendment violated the constitutional reserva- tion of state authority to train the Militia, and that National Guard personnel could not be ordered to active duty for train- ing without the consent of the States unless the Congress or the President first declared a national security emergency or exigency. Perpich v. United States Department of Defense, No. 87-5345, slip op. (8th Cir. Dec. 6, 1988). On January 11, 1989, this court granted rehearing en banc, thus vacating the opinion of the panel. We now affirm the judgment of the district court upholding the constitutionality of the Mont- gomery Amendment. II. This case involves conflicting assertions of sovereignty by the state and national governments. Perpich“' claims the constitutional authority to withhold consent for National Guard training outside the United States in peacetime. The Department of Defense contends that, when Congress acts under its constitutional power to raise and support armies, it may authorize active duty to train reserve forces without infringing the States’ authority over militia training. The Department of Defense also contends that a governor’s de- cision to withhold consent based on objections to the location 5 The States of Colorado, Maine, Massachusetts, Ohio and Vermont appear jointly as amici curiae in support of appellants. The Na- tional Guard Association of the United States (supported by the states of Alabama, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, lowa, Kansas, Kentucky, Louisiana, Maryland, Missis- sippi, Missouri, Nevada, New Mexico, Oklahoma, Rhode Island, South Carolina, South Dakota, Texas, Utah, Wisconsin, and the Adjutants General Association of the United States and the En- listed Association of the National Guard of the United States), the Firearms Civil Rights Legal Defense Fund, and the Military Order of the World Wars appear separately as amici curiae in opposition to appellants. A-6 or purpose of Guard training would infringe the national government’s exclusive authority to conduct the national de- fense. Today, the militia (with a number of exceptions of no im- portance here) consists of all able-bodied male citizens ages 17 to 45 and of female citizens who are commissioned officers of the National Guard. 10 U.S.C. § 311(a). The militia is divided into two classes, the organized militia and the unor- ganized militia. Id. § 311(b). The National Guard is the organized militia of the several States. Id. f 101(10), (12).° The National Guard of the United States (NGUS) consists of the members of the National Guard or organized militia who are also cnlisted in a reserve component of the United States Army or Air Force. Id. § 261." 6“The term ‘National Guard’ means the Army National Guard and the Air National Guard.” Jd. § 101(9). “Army National Guard” means: that part of the organized militia of the several States and Ter- ritories, Puerto Rico, the Canal Zone, and the District of Colum- bia, active and inactive, that— (A) is a land force; (B) is trained, and has its officers appointed, under the six- teenth clause of section 8, article I, of the Constitution, (C) is organized, armed, and equipped wholly or partly at Federal expense; and (D) is federally recognized. Id. § 101(10). “Air National Guard” defines a like air force. Id. § 101(12). Parallel definitions are found at 32 USCA. § 101(4) (Army National Guard), (6) (Air National Guard). In this opinion we use “the Guard” to refer generally to the dually enlisted organized militia, adhering elsewhere to current statutory definitions in referring to the National Guard of the several States and the National Guard of the United States. 7“ ‘Army National Guard of the United States’ means the reserve component of the Army all of whose members are members of the Army National Guard.” 10 U.S.C. § 101(11). Air National Guard of the United States’ means the reserve component of the Air Force all of whose members are members of the Air National Guard.” Id. § 101(13). A-7 In 1933, Congress established the National Guard of the United States as a component of the Army of the United States. Act of June 15, 1933, ch. 87, § 5, 48 Stat. 155. The National Guard of the United States consisted of the federally recognized members and units of the National Guard of the several States. Id. The 1933 Act created a dual enliet ment sys- tem, id., §§ 7-11, 48 Stat. 156-57, whereby “an incoming guardsman joined both the National Guard of his home state and the National Guard of the United States, a reserve com- ponent of the U.S. Army.” Johnson v. Powell, 414 F.2d 1060, 1063 (5th Cir. 1969). The President was authorized to order any or all units or members of the National Guard of the United States into active military service, if Congress first declared a national emergency and authorized the use of armed land forces in excess of the number of regular troops. Act of June 15, 1933, ch. 87, § 15, 48 Stat. 160. In establishing the Nationa] Guard of the United States, Congress invoked its army clause powers. H.R. Rep. No. 141, 73rd Cong., Ist Sess. 3-4 (1933) ; see generally Weiner, The Militia Clause of the Constitution, 54 Harv. L. Rev. 181, 187 (1940). In 1952, Congress enacted the legislative forerunners of 10 U.S.C. § 672(b) and (d) as part of a comprehensive strength- ening of the armed forces’ reserve components. Armed Forces Reserve Act of 1952, ch. 618, § 233(c), (d), 66 Stat. 481, 490. See S. Rep. No. 1795, 82nd Cong., 2d Sess. (1952), reprinted in 1952 U.S. Code Cong. & Admin. News 2005. The Army National Guard of the United States and the Air National Guard of the United States were designated as reserve com- ponents in the Ready Reserve of the Army and Air Force, respectively. Armed Forces Reserve Act of 1952, §§ 202, 208(c), 66 Stat. at 483-84. Today, Congress authorizes active reserve duty for the National Guard of the United States in a variety of circum- stances.* The Army and Air National Guard of the United States, established and maintained under Congress’ army power, function as reserves in the United States Army and Air Force “to provide trained units and qualified persons available for active duty in the armed forces, in time of war or national emergency and at such other times as the national security requires.” 10 U.S.C. § 262. Under the “Total Force” structuring of American military forces, reserve components, including the National Guard oi the United States, are fully integrated with regular active forces in the national defense. See H.R. Rep. No. 1069, 94th Cong., 2d Sess. 325, reprinted in 1976 U.S. Code Cong. & Admin. News 1084, H.R. Rep. No. 107, 98th Cong., Ist Sess. 202 (1983). For example, the Army National Guard of the United States provides forty-six percent of the combat units and twenty-eight percent of the support forces of the total Army. The Army National Guard of the United States would provide eighteen of the twenty-eight army divisions, wholly or in part, in the event of full mobilization. The Air National 8 In addition to the provisions of § 672(b) and (d), Reserves may be ordered to active duty in the following circ-unstances: reserves may be ordered to active duty “in time of war or national emergency declared by Congress,” for up to six months beyond the duration of the war or emergency, 10 U.S.C. ata); active duty for up to twenty-four months is authorized if the President declares a “national emergency,” id. § 673(a); the President may order a reservist to active duty for up to twenty-four months, if performance of his statutory reserve ob- ligation has been delinquent or unsatisfactory, id. § @73a(a); active duty for up to ninety days is authorized if the President “determines it is necessary to augment active forces for any operational mission,” id. § 673b(a); and commissioned officers of the Army Nationa! Guard of the United States may be ordered, with their consent, to active duty in the National Guard Bureau, id. § 3496(a). Guard of the United States provides seventy-three percent of air defense interceptor forces, fifty-two percent of tactical air reconnaissance, thirty-four percent of tactical air lift, twenty-five percent of tactical fighters, seventeen percent of aerial refueling, twenty-four percent of tactical air support, and other forces. Supp. Jt. App. at 5 (reprinting Hearings On Federal Authority Over National Guard Training Before the Subcommittee on Manpower and Personnel of the Senate Committee on Armed Service, 99th Cong., 2d Sess. (1986) (testimony of James H. Webb, Jr.)). Article I. section 8, clause 12 gives Congress the power “to raise and support Armies Clause 16 reserves] to the States respectively the Authority of Training the Militia according to the discipline prescribed by Congress.” Minne- sota asserts its sovereignty over the organized militia, legally constituted as the Minnesota Units of the Army and Air Na- tional Guards. Defendants assert their authority over enlisted members of the National Guard of the United States. We consider whether Congress’ qualification of the governor's consent provisions in section 672 infringes the States’ “Au- thority of training the Militia according to the discipline prescribed by Congress.” The issue, simply put, is this: when the State claims a right to control Militia training, and Con- gress claims We're training the Army, not the Militia,’ who wins? The authority given to Congress by the army clause is plenary and exclusive. Tarble’s Case, 80 U.S. (13 Wall.) 397, 408 (1872). In the Selective Draft Law Cases, 245 U.S. 366 (1918), the Court observed that “complete authority” over the “army sphere” was “conferred in all its plenitude” to Congress, with the exertion of that power “wisely left to depend upon the discretion of Congress as to the arising of A-10 the exigencies which would call it in part or in whole into play.” 245 U.S. at 382-83. More recently, the Court has ob- served that “the constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping.” United States v. O’Brien, 391 U.S. 367, 377 (1968). The dual enlistment system, urder which Guard members enlist and serve in both a state National Guard and the fed- eral National Guard of the United States, is a necessary and proper exercise of Congress’ army power. Perpich, 666 F. Supp. at 1323. See also Dukakis v. United States Depariment of Defense, 686 F. Supp. 30 (D. Mass.), aff'd, 859 F.2d 1066 (Ist Cir. 1988) (per curiam); Johnson v. Powell, 414 F.2d 1060, 1063 (5th Cir. 1969); Drifka v. Brainard, 294 F. Supp. 425 (W.D. Wa. 1968). Congress’ establishment of the ready reserve and authorization of active duty, for training or other- wise, also falls within the lawful scope of the army power, as an exercise of congressional discretion in prescribing the exigencies of military training and discipline. See Chappell v. Wallace, 462 U.S. 296, 300 (1983). Here Guard units were ordered into federal service for training in Central America in their role as the National Guard of the United States, a ready reserve component of the United States Army. The statutes authorizing this federal action are statutes grounded upon the army clause. These actions are beyond the reach of the militia clause. While we could well conclude at this point, the vigorous argument of Perpich makes it proper that we further consider the scope of the militia clause. III. In the Selective Draft Law Cases, the Supreme Court upheld Congress’ authority to draft individuals into the United States A-11 Armed Services, notwithstanding their status as National Guard members already in the service of the United States. The Court held that Congress’ power to conscript for the army under its authority to raise and support armies and to declare war was not confined to the express provisions for calling forth the militia. The Court reasoned that the one delegation of power to Congress (to call forth the militia) did not circumscribe the operation of another delegated power (to raise armies). 245 U.S. at 384. Thus, the Supreme Court has made clear that the army clause is not limited by the militia clause: There was left therefore under the sway of the States undelegated the control of the militia to the extent that such control was not taken away by the exercise by Con- gress of its power to raise armies. This did not diminish the military power or curb the full potentiality of the right to exert it but left an area of authority requiring to be provided for (the militia area) unless and until by the exertion of the military power of Congress that area had been circumscribed or totally disappeared. This, therefore, is what was dealt with by the militia provision. * * * But because under the express regulations the power was given to call [the Militia] for specified purposes without exerting the army power, it cannot follow that the latter power when exerted was not complete to the extent of its exertion and dominant. Because the power of Congress to raise armies was not required to be ex- erted to its full limit but only as in the discretion of Congress it was deemed the public interest required, furnishes no ground for supposing that the complete power was lost by its partial exertion. Because, moreover, the power granted to Congress to raise armies in its A-12 potentiality was susceptible of narrowing the area over which the militia clause operated, affords no ground for confounding the two areas which were distinct and separate to the end of confusing both the powers and thus weakening or destroying both. 245 U.S. at 388-84. Cox v. Wood, 247 U.S. 3, 6 (1918), further explained the relationship between the two clauses : [T]he constitutional power of Congress to compel the military service which the assailed law commanded was based on the following propositions: (a) That the power of Congress to compel military service and the duty of the citizen to render it when called for were derived from the authority given to Congress by the Constitution to declare war and to raise armies. (b) That those powers were not qualified or restricted by the provisions of the militia clause, and hence the authority in the exercise of the war power to raise armies and use them when raised was not subject to limitations as to use of the militia, if any, deduced from the militia clause. And (c) that from these principles it also follows that the power to call for military duty under the authority to declare war and raise armies and the duty of the citizen to serve when called were coterminous with the constitu- tional grant from which the authority was derived and knew no limit deduced from a separate, and for the pur- pose of the war power, wholly incidental, if not irrelevant and subordinate, provision concerning the militia, found in the Constitution. Looking particularly to the Selective Draft Law Cases, the district court here, as well as that in Dukakis, concluded that the states’ authority reserved in the militia clause does not apply to the period during which members are on active duty as a part of the National Guard of the United States. The A-13 Dukakis court made it clear that it did not read the Selective Draft Law Cases as a sweeping declaration that Congress is, in all circumstances, authorized by the army clause to bypass the reservation of power to the states in the militia clause. Faced with circumstances identical to those here, however, Dukakis held: Nevertheless, guided by the decisions in the dual-enlist- ment cases as well as Selective Draft Law Cases, I conclude that the reservation of power to the states over “the Authority of training the Militia according to the discipline prescribed by Congress,” expressed in the Mili- tia Clause, does not override the legitimately exercised power of Congress “[t]o raise and support Armies.“ 686 F. Supp. at 37. As in Dukakis, the district court in Perpich held that the dual enlistment system is a valid exercise of congressional power under the army clause and the necessary and proper clause. Because the authority to provide for national defense is plenary, the militia clause cannot con- strain Congress’ authority to train the Guard as it sees fit when the Guard is operating pursuant to the army clause. Perpich v. United States Dep’t of Defense, 666 F. Supp. 1319, 1323-24 (D. Minn. 1987). As the militia clause does not limit Congress’ authority to train the National Guard of the United States while it is in active service, the gubernatorial veto is not constitutionally required. Id. at 1324. We are satisfied that the district court was correct in this holding. Congress’ army power is plenary and exclusive. The reserva- tion to the States of authority to train the Militia does not conflict with Congress’ authority to raise armies for the com- mon defense and to control the training of federal reserve forces. The Montgomery Amendment is a constitutional ex- ercise of Congress’ army powers. A-14 The judgment of the district court is affirmed. HEANEY, Senior Circuit Judge, with whom MeMillian, Cir- cuit Judge, joins, dissenting. I. Introduction With a few strokes of the word processor, the majority has written the Militia Clause out of the United States Constitu- tion. In so doing, it contradicts the clear intent of the founding fathers, who believed that state control over elements of the military was essential to a free and peaceful republic. To this end, they gave the states a degree of power over the militia, which they intended to be a significant element of our national defense. The majority ignores the unambiguous language of the Constitution, and disregards the historical construction given to the Militia Clause and the Army Clause by the three branches of the federal government and the states. The plain and unassailable fact is that, until Congress tacked the Mont- gomery Amendment on to a defense appropriations bill, it was not responsibly asserted that Congress had the power under the Constitution to require the National Guard to par- ticipate in peacetime training missions without the consent of the governor of the affected state. The majority relies on the Selective Draft Law Cases, 245 U.S. 366 (1918), for the proposition that the Militia Clause imposes no limits on the power of Congress to declare war and raise armies. It neglects to note, however, that in those cases the Supreme Court merely held that Congress could require compulsory military service during wartime. The Supreme Court neither held nor suggested in that or any other case that Congress could require the National Guard to engage in training missions during peacetime without gubernatorial consent. The majority places great reliance on the 1933 amendments to the National Defense Act. In that legislation, Congress a gk ee ee eee Renne * iam, * 9 Cee | N es es a a ee | oe! ee ee Re A-15 determined that the Army of the United States would consist of the regular Army, the National Guard of the United States, the state National Guard while in the service of the United States, the Officer Reserve Corps, the organized Reserve and the enlisted Reserves. It adopted the amendments to alleviate the necessity of drafting individual members of the National Guard into the army by allowing them to be called into service in whole units in the “event of war or other national emer- gency so declared by Congress.” The act states in section 111 that: When Congress shall have declared a national emergency and shall have authorized the use of armed land forces * * * the President may order into the active military service of the United States, to serve therein for the period of the war or emergency, * * * any or all units and the members thereof of the National Guard of the United States. 48 Stat. at 160. In the absence of war or national emergency, Congress left state control over the militia intact. The majority’s final argument is that the requirements of the modern Army are such that the Defense Department must have absolute power to order the National Guard to partici- pate in peacetime training without gubernatorial consent. This assertion is not supported by any facts. To the contrary, the record shows that the efficiency of the National Guard has not been affected at all by the refusal of one or more governors to consent to a particular mission. Moreover, if in the future there is a danger that non-consent would affect our national security, a national emergency may be declared, as President Reagan did during the recent raid on Libya. See Exec. Order No. 12,543, reprinted in Dept. St. Bull. 37-38 (March 1986). This is a small price to pay for compliance with the Consti- tution. I initially turn to the intent of the framers. Il. The Intent of the Framers A. The Militia Clauses The military power of the United States is based on a system of checks and balances. The Framers divided author- ity over the military, not only between the coordinate branches of the federal government, but also between the federal and state governments. The latter division is emphasized in several ways. First, because of the Framers’ fear that a large standing army would lead to military abuses by the federal government, state militias were intended to comprise the bulk of the na- tion’s defensive force. Second, control over these militias was explicitly shared between the federal government and the states. (The states were to appoint the militia’s officers and to control the actual training of militiamen.) Third, while the Framers did not want the states to make positive national policy in the areas of defense or foreign relations matters. they did intend the states to use their control over the militia to prevent the federal government, except in circumstances where national security was threatened, from using state troops in military undertakings objectionable to the states and their citizenry. Under the Articles of Confederation, the states were required to “keep up a well regulated and disciplined mi- litia * * * .” U.S. Arts. of Confed. art. VI. The central govern- ment had power to declare war and the supervisory authority a Foreign Power, or engage in War * * .S. Const. art. I. § 10, cls. 1, 3. A-17 to order the states to produce quotas of armed and trained troops. Id., art. IX. This system proved unworkable. The states had too much independent power to resist the requests of the central government. The troops provided were often inad- equately trained and equipped and thus difficult to coordinate into a cohesive and effective force. Thus, as the delegates assembled during the summer of 1787 to draft a more viable instrument of government, a pressing objective was the creation of a stronger, more reli- able armed force. This aim was widely shared. The effort to find a specific solution, however, proved extremely divisive. From the outset, it was agreed that the problem would not be solved by the creation of a large, federally controlled standing army. The Framers identified such a force with British tyran- ny, potential oppression of states and individual citizens, and expensive, unpopular military adventures. Thus, while the Framers would ultimately provide for a standing army, they would limit its power by declaring that military appropria- tions had to be approved every two years. U.S. Const. art. I, § 8, cl. 12. More importantly, for the purposes of this dis- cussion, the Framers stated their intent to have state militias See Friedman, Conscription and the Constitution: The Original Understanding, 67 Mich. L. Rev. 1493, 1507-1541 (1969) (Friedman). Indeed, as delegate Edmund Rando ph noted at the Virginia rat- ifying convention, “there was not a member of the federal con- vention who did not feel indignation” at the idee of a standing army. 3 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 401 (1901) (Elliot). See also Hirsch, The Militia Clauses of the Constitution and the National Guard, 56 U. Cin. L. Rev. 919, 924 (1988) (Hirsch); Com- ment, The Constitution and the Training of National Guard Offi- cers: Can State Governors Prevent Uncle Sam From Sending the Guard to Central America“, 4 J. L. & Pol. 597, 600, 601 (1988) (authored by P. Fish) (Comment). A-18 provide for the nation’s basic defense, with reliance on a standing army only as a last resort.* As a corollary to the decision to rely largely on the militia for the nation’s defense, it was believed necessary to provide a degree of federal control over these forces in order to achieve military effectiveness. The Convention rapidly agreed that the state militias would be placed under the control of the federal government in emergency situations, such as when insurrection or invasion was threateneu, or when the militias were needed to enforce the laws of the country. See US. Const. art. I, § 8, cl. 15 (Clause 15) (“Congress shall have the power [tjo provide for calling forth the Militia to execute the laws of the Union, suppress Insurrections and repel Invasions * * * .”).* However, in other cases, the degree 8 As the Supreme Court noted in United States v. Miller, 307 US. 174, 179 (1939), “The sentiment of the time [of the ratification of the Constitution] strongly disfavored standing armies; the common view was that adequate defense of the country and laws could be secured through the Militia—civilians primarily, soldiers on occasion.” See also Hirsch, supra note 2, at 924. Apparently, this view was a longstanding one, for Hirsch notes that militia did the bulk of the fighting, often with success, in the War of noted commentator, [Pleace was expected to be the customary state of the new nation. America would avoid aggress.ve war abroad and enjoy in turn ‘an insulated situation’ from the great powers of Europe * * his placid view of foreign re ations precluded any explicit consideration of the use of American force abroad, except for defensive naval action W. T. Reveley, War Powers of the President and Congress 61 (1981). a ik — . 99 Delegate Oliver J. Elsworth of Connecticut whole authority of the militia ought by no means to be He thought the [general] Authority cou'd not sufficiently per- vade the Union for such a purpose, nor could it accommodate itself to the local genius of the people. It must be vain to ask the States to give the Militia out of their hands. — . — e are come now to a most important matter, that of sword. His opinion was that the States never would nor ought to give up all authority over the Militia. He proposed to restrain the general power to one fourth part at a time, which by rotation would discipline the whole Militia. Madison's Notes of the Federal Convention, ed in, No. 695, 64th Cong. 2d Sess. 33 (1917) (The — * Delegate Elbridge Gerry of Massachusetts feared that federal control over the militia would “enslave the states” and lead to a “system of despotism.” The Militia, supra note 6, at 31, 33. A-20 leave the states without the means to meet their own public needs.“ The debate between these factions was vigorous, for neither extreme had sufficient support at the Convention for its po- sition to prevail.“ After several months of discussion and many days of hard-fought exchange on the floor of the Convention, delegates, such as George Mason, began to seek a compromise which would provide the federal government with sufficient control over the militia to meet its defensive needs, while at the same time assuring the states sufficient authority to check the potential abuse of military power by the federal govern- ment.“ On August 21, 1787, the Convention was presented with a workable compromise. The new proposal provided the federal government the authority [tjo make laws for organizing, 8 Madison's notes contain the following: Mr. [Roger] Sherman [of Connecticut}, took notice that the States might want their militia for defense [against] invasions and insurrections, and for enforcing obedience to their laws. Id. at 34. ® See Friedman, supra note 2, at 1512-20. 10 The power of states-rights delegates to exact significant conces- sions from the nationalist delegates is demonstrated in the course of the debates at the Federal Convention. Mason offered three successive proposals to the Convention, each providing the states more authority over the militia than the last. Mason's final proposal sought to provide the federal government “regulatory” authority over the militia insofar as this was necessary to estab lish uniformity in training and arms so that the state forces could be melded into a cohesive force when the need arose. In the states’ interest, Mason proposed that this federal regulatory au- thority would be limited to one-tenth part of each year, that ap pointment of officers would be in state hands, and that the states would be exempt from federal authority whenever they needed to use their militia on state business. This, however, did not satisfy the states-rights delegates, and the matter was referrec to a central committee for resolution. The Militia, supra note 6, at 31.35. arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the U.S.,” while concurrently “reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by the U. States.”'' This compromise, with minor stylistic changes, was ultimately approved by the Convention. U.S. Const. art. I, § 8, cl. 16 (Clause 16). Delegate Hamilton declared that the authority to appoint officers was given to the states in order to secure for them “a preponderating influence over the militia.” The Federalist No. 29, at 185 (A. Hamilton) (J. Cooke ed. 1961) (Cooke). Moreover, the debates indicated that the training clause was retained in the text of the Constitution to ensure that the power to “organize, arm, and discipline” state forces given the federal government by the Militia Clauses did not sur- reptitiously extend federal control over the actual training of the militia.'* '! The Militia, supra note 6, at 34 (emphasis added). Clause 16 provides Congress with the power to “discipline” the militia and reserves to the states “the Authority of training the Militia according to the discipline prescribed by Congress.” Amicus curiae, the National Guard Association of the United States, argues that the term “discipline” provides a constitutional basis for federal control over the training process. During the debates at the Constitutional Convention, Delegate Sherman suggested that the clause relating to training should be deleted, because he believed it “unnecessary.” He believed that the states would obviously retain this authority unless they spe cifically ceded it to the federal government. The Militia, supra note 6, at 35. In response, Delegate Elsworth cautioned Sherman on this point. Madison's notes contain the following Mr. Elsworth doubted the propriety of striking out the sen- tence. The reason assigned applies as well to the other reserva- tion of the appointment to offices. He remarked at the same time that the term discipline was of vast extent and might be nm al *— tence | | | | : . . i 110 1 . i 5 1 12 i i i lil. wantonly to exercise power over the number from any H i i i i ö . ö i TTT | J f ; i i i . 5 — Supporters of the compromise, in response, assured poten- tial opponents that the national government would only send the militia away from home in emergencies, such as when invasion or rebellion was threatened, or when there was a need to execnte the laws. See The Federaiist No. 29, Cooke at 187. In other situations, they asserted, the states and the people would assure that the federal government did not abuse its control of the militia. Hamilton emphasized that the militia were under the “preponderating influence” of the states. /d. at 186. Thus, he continued, “What shadow of danger can there be from men who are daily mingling with the rest of their countrymen, and who participate with them in the same feelings, sentiments, habits, and interests“ Id. Hamilton concluded that, if the federal government attempted to send state troops on such adventures, its action would be based not on authority granted in the Constitution but rather on “imagined intrenchments of power.” He believed that the states and the people would not tolerate such clear violations of the law. marks of Luther Martin before the Maryland House of Repre sentatives, November 20, 1787, id. at 117-118. Similar fears wee also expressed at the Pennsylvania ratifying convention. See Pennsylvania and the Federal Convention 598 (McMaster & Stone ed.). 14 Specifically, Hamilton declared that if the central government attempted such an abuse whither would the militia, irritated by being called upon to undertake a distant and distressing expedition for the purpose of riveting the chains of slavery upon a part of their country- mer direct their course, but to the seat of the tyrants who had meditated so foolish as well as so wicked a project; to crush them in their imagined intrenchments of power, and to make them an example of the just vengeance of an abused and in- censed people’ The Federalist No. 29, Cooke at 186 (emphasis added) A-24 Madison, in like manner, declared that the authority of the states “as coequal sovereigns,” together with the political power of the people, would form a significant check on the potential use of state militias for military adventures by the federal government. He stated : Can we believe that a government of a federal nature, consisting of many coequal sovereigns, and particularly having one branch chosen from among the people, would drag the militia unnecessarily to an immense distance. This, sir, would be unworthy of the most arbitrary despot. They have no temptation whatever to abuse this power; such abuse could only answer the purpose of exciting the universal indignation of the people, and drawing on themselves the general hatred and detesta- tion of their country. 3 Elliot, supra note 2, at 381-82. B. The Guarantee of Republican Government Clause The Guarantee of Republican Government Clause pro- vides : The United States shall guarantee to every State in this Union a Republican Form of Government, and shall pro- tect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legis- lature cannot be convened) against domestic Violence. U.S. Const. art. IV, § 4. During the ratification debates, many of the delegates to the state conventions feared that the federal power to suppress domestic violence in individual states provided by this clause, together with the federal power over the militia set forth in Clauses 15 and 16, posed a serious threat to the states in the form of unchecked federal military power James Madison responded forcefully to these suggestions and, in so doing, A-25 provided clear support for the principle that reserved state authority over the militia was designed as an explicit check on the potential abuse of military power by the federal govern- ment. In the Virginia convention, Madison stated: The authority of training the militia, and appointing the officers, is reserved to the states. Congress ought to have the power to establish a uniform discipline throughout the states, and to provide for the execution of the laws, suppress insurrections, and repel invasions: these are the only cases wherein they can interfere with the militia* * * . 3 Elliot, supra note 2, at 90 (emphasis added). Several days later, Patrick Henry declared that Clauses 15 and 16, together with the Guarantee of Republican Govern- ment Clause, gave the federal government “unbounded control over the national strength” and “unequivocally relinquished” the states’ control over their militias. Jd. at 422-24. In like manner, William Grayson repeatedly argued that under the proposed Constitution, Congress could call out the militia whenever it desired and thus there was “no check” on federal control over the militia. Id. at 417-18, 421. In response, Madison reasoned that practical necessities required dividing power over the militia between the federal government and the states. Following from this, he continued : If [power over the militia] must be divided, let him [Henry] show a better manner of doing it than that which is in the Constitution. I cannot agree with the other honorable gentleman [Grayson], that there is no check. There is a powerful check in that paper. The state gov- ernments are to govern the militia when not called forth for general national purposes; and the Congress is to A-26 govern such part only as may be in the actual service of the Union. Nothing can be more certain and positive than this. It expressly empowers Congress to govern them when in the Service of the United States. It is, then, clear that the states govern them when they are not. Id. at 424 (emphasis added). C. The Second Amendment The second amendment to the Constitution provides: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. U.S. Const. amend. II. This amendment was intended to reassure states-rights advocates who feared that the power of a large federal stand- ing army would diminish the “security of a free state.” The second amendment guaranteed the perpetual existence of a viable militia as a continued check on the military power of the federal government. As the Supreme Court stated, “With the obvious purpose to assure the continuation and render possible the effectiveness of [the militia] the declaration and guarantee of the Second Amendment were made. [The second amendment] must be interpreted and applied with this in view.” United States v. Miller, 307 U.S. at 178 (emphasis added). 15 For further evidence supporting this view of the second amend- ment, see 1 Annals of Congress, 749-52, 766-67 (J. Gales, ed. 1789) 1 S. Tucker, Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia App. 300 (1803); 3 J. Story, Commentaries on the Constitution of the United States §§ 1890-91 (1833); Note, Should I Stay or Should I Go: The National Guard Dances to the Tune Called by Two Masters, 39 Case W. Res. L. Rev. 165 (1988-89) (Should I Stay or Should I Go). A-27 D. The Framers’ View of the Interplay of the Army and Militia Powers The Constitution provides Congress with the power “To Raise and support Armies * ,” U.S. Const. art. I, § 8, cl. 12, and the power “To make all Laws which shall be necessary and proper to carry into Execution [these powers] * * * .” Id., el. 18.** In terms of the militia, Clause 15 provides that Congress shall have the power: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions * * * . Clause 16 gives Congress the further 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, reserving to the States respectively, the Appointment of the Of- ficers, and the Authority of training the Militia accord- ing to the discipline prescribed by Congress. Id. (emphasis added). In The Federalist No. 23, Alexander Hamilton discussed the scope of the Constitution’s Army Clause in the following terms: 16 There are other references to the militia in the Constitution. Art. II. § 2, provides: The President shall be Commander in Chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States 5 „ Amendment V provides: No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger A-28 The authorities essential to the care of the common defence are these—to raise armies—to build and equip fleets—to prescribe rules for the government of both— to direct their operations—to provide for their support. These powers ought to exist without limitation: Because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be co- extensive with all the possible combinations of such cir- cumstances; and ought to be under the direction of the same councils, which are appointed to preside over the common defense. see Whether there ought to be a Federal Government in- trusted with the care of the common defence, is a question in the first instance open to discussion ; but the moment it is decided in the affirmative, it will follow, that that gov- ernment ought to be clothed with all the powers requisite to the complete execution of its trust. And unless it can be shown, that the circumstances which may affect the public safety are reducible within certain determinate limits; unless the contrary of this proposition can be fairly and rationally disputed, it must be admitted, as a necessary consequence, that there can be no limitation of that authority which is to provide for the defence and protection of the community, in any matter essential to its efficacy ; that is, in any matter essential to the forma- tion, direction or support of the NATIONAL FORCES. The Federalist No. 23, Cooke at 147-48. A-29 The government asserts, and the majority implicitly accepts the view, that this passage indicates the Framers believed the power to raise armies could supersede reserved state authority over the militia at will. I am unable to find a word in dis- cussions leading to the adoption of the Militia Clause that supports this interpretation. First, in this essay, Hamilton was writing of the “army power.” There is no reference—of any kind—in The Fed- eralist No. 23 to the interaction of the army power with the militia power. There is no reference to the militia or to the Militia Clauses at all. Second, when Hamilton discusses the militia power in The Federalist No. 29, he directly contradicts the interpretation the government gives The Federalist No. 23. Strange as it may now seem, the Framers feared that if the militia did not exist to protect state interests, the army might be used by the federal government to opprese ne states and their citizens. Thus, Hamilton, in The Federalist No. 29 (along with Madison in The Federalist No. 46), declared that an essential purpose behind the states’ reserved authority over the militia was to guard against the dangers of the federal army. 17 See supra note 7. 18 Specifically, Hamilton declared that a strong militia obviated the need for a potentially oppressive federal army: [It circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens little if at all inferior to them in discipline and in the use of arms, who stand ready to defend their own rights and those of their fellow citizens. This appears to me the only substitute that can be devised for a standing army; the best possible security against it, if it should exist. The Federalist No. 29, Cooke at 184-85. Next, responding to the argument that the Constitution's Militia Clauses provided the federal government the power to oppress the states with their own militias, Hamilton continued: r nn Hamilton could not have meant that the Army Clause has the power to supersede the reserved state authority over the militia at will. If the federal government could use the army power at will to make the militia a federal force under its plenary control, then the Militia Clauses could not serve their intended purpose to protect the states against potential op- pression by the federal army. Given the basic nature of this contradiction (and the fact that The Federalist No. 23 does not even discuss the militia), it is likely that Hamilton was simply writing about the broad authority of the army power to serve the national defense, without reference to the militia power. There is something so far fetched and so extravagant in the idea of danger from the militia, that one is at a loss to treat it with gravity or with raillery * * * What reasonable cause of apprehension can be inferred from a power in the Union to prescribe regulations for the militia, and to command its ser- vices when necessary; while the particular States are to have the sole and exclusive appointment of the officers? If it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the Federal Government, the circumstances 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 preponder- ating influence over the militia. Id. at 185 (emphasis added). In a similar vein, Madison wrote: Let a regular army, fully equal to the resources of the country be formed; and let it be entirely at the devotion of the Federal Government; still it would not be going too far to say, that the State Governments with the people on their side would be able to repel the danger * * To these [a standing army] would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and con- fidence. It may well be doubted whether a militia thus circum. stanced could ever be conquered by such a proportion of regular troops. The Federalist No. 46, Cooke at 321 (emphasis added). Alternatively, The Federalist Nos. 23 and 29 can be read together to allow the army power to supersede the militia power in more tightly confined circumstances. Hamilton, in The Federalist No. 28, speaks of the broad and unhindered sweep of the army power very clearly in the context of un- foreseeable “national exigencies,” or, phrased in other ways, in terms of the “circumstances that endanger the safety of nations,” or “circumstances which may affect the public safe- ty. Clearl;, these phrases are significant to Hamilton, and by reading such a “national exigency” as a necessary require- ment before the Army Clause can supersede state authority over the militia in peacetime, the seemingly contradictory messages of The Federalist No. 23 and The Federalist Nos. 29 and 46 are harmonized. If the authority of the Army Clause to supersede the res- ervation of state authority in the Militia Clauses is limited to “national exigencies” or “circumstances that endanger the safety of the nation,” federal power over the militia can only “trump” the state power when the whole union, or the national interest, is in some way threatened. If such a threat did not exist, the states would then be protected from the oppressive exercise of federal authority by the Militia Clauses. Certain powers, such as reserved state authority over the militia, were enumerated in the Constitution in order to be insulated from uncontrolled and potentially irresponsible short-term political reaction. Such powers represented funda- mental structural decisions by the Framers, based on their view of political society. They realized that, unless insulated, these powers could be eliminated in the heat of the moment by ill-considered political reactions. See The Federalist No. 10 (J. Madison). III. The Text of the Constitution The plain language of Article I. Section 8, Clause 16 of the Constitution “reserv[es] to the States respectively * * * the Authority of Training the Militia * * * .” This is an unam- biguous command in the text of the Constitution which we cannot ignore. The second amendment to the Constitution provides that, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms is not infringed.” This amendment mandated the states to keep troops as a check on the power of the fed- eral government as a matter of constitutional law. United States v. Miller, 307 U.S. at 178; see also, Should I Stay or Should I Go, supra note 15 at 176, 208. When read together with Clause 16, the second amendment clearly opposes the power of Congress to raise armies at will. The clauses, how- ever, can be readily harmonized if we accept the concept that the power of Congress over the National Guard is supreme only in times of war or a declared national emergency. IV. The Decided Cases A. The Supreme Court The majority reads the Selective Draft Law Cases, supra, and Coz v. Wood, 247 U.S. 3 (1918), to permit, if not to require, its holding. I find no support for the majority's view in these cases. The Selective Draft Law of May 18, 1917, ch. 15, 40 Stat. 76, was passed shortly after Congress had declared war on Germany. The act unambiguously recites that the country was faced with an “emergency, which demands the raising of troops in addition to those now available.” 40 Stat. at 76.'* The draft was specified to be in accordance with Section 111 of the National Defense Act of 1916. That section read as follows: When Congress shall have authorized the use of the armed land forces of the United States, for any purpose requiring the use of troops in excess of those of the Regular Army, the President may, * * * draft into the military service of the United States, to serve therein for the period of the war unless sooner In the Selective Draft Law Cases, the Court concluded : bility of parting with their organized militia when a national has In the Civil War the States parted with their active militia in raising their quotas for the | with Spain the Vo.unteer Army manner. Of course, in contemplat.on of law the militia has been taken not as militia, nor as militia organizations, but as individuais owing the Nation allegiance and service. Such a longequire this Court to act “prag- matically” and to read these anachronistic reserved powers either very narrowly or out of existence entirely. The figures that the government cites show that the Na- tional Guard is a major part of the defensive force of the United States. However, if the national security is in any way threatened, the federal government can quickly assume total control over the National Guard by declaring a national exi- gency. Thus, in any situation demanding quick action, there would be no state-controlled obstacles to hinder the govern- ment’s response The government's second pragmatic argument follows closely from the first. Secretary Webb, in his Senate testi- mony, explains that, because of the nation’s great dependence on the National Guard, these forces must be extremely well trained. This is necessary both so that they are prepared for all future emergencies and so that, at the appropriate time, they can mesh their operation with the regular army and o-her reserve components. See 1986 Senate Hearings, supra, at 56-6-8. Specifically, Secretary Webb asserts that the National Guard units must train in foreign environments with their unusual climates and terrain, alongside their full-time army and air force counterparts in order to achieve “operational readiness.” Any interference by obstinate state governors in A-117 this tre ning process is likely to be disastrous in terms of the Guard’s ability to operate effectively in a future crisis. In response, all of the parties to this case agree that broad training experience for the National Guard is essential to the adequate defense of the United States. Indeed, even in the midst of the Honduran training controversy in 1986, Lieutenant General E. H. Walker, Chief of the National Guard Bureau, stated: [No governor has said he opposes overseas deployment training—all have said they wholeheartedly believe in it and understand and support the need for it. 1986 Senate Hearings, supra, at 95-5. Since the Guard began training overseas in the early 1970's, no governor has ever withheld his or her consent to a training mission or any type of mission until the Guard recently be- gan to train in Honduras. Moreover, states have never opposed training on the basis of terrain or climate. They have never opposed Guard exercises coordinated with regular forces. In short, they have never opposed the substance or content of training—nor are they likely to do so in the future. The states have only opposed an order for training when the real purpose of the order is something more than training. In the case of the Honduran controversy, the state objections all concerned 5710 USC. § 3040 provides: (a) There is a National Guard Bureau. which is a Joint Bureau of the Department of the Army and the Department of the Air Force, headed by a chief who is an adviser to the Army Chief of Staff and the Air Force Chief of Staff on National Guard matters. The National Guard Bureau is *he channel of com- munications between the departments concerned and the several States, Territories, Puerto Rico, the Canal Zone and the District of Columbia on all matters pertaining to the National Guard. the Army National Guard of the United States, and the Air National Guard of the United States. A-118 the potentially dangerous implications that training in a politically explosive part of the world might have.** In this light, the substance of the government's training argument is better understood. The government does not argue that gubernatorial consent prevents them from exposing As Senator Gienn stated at the hearings: I know beck in my own state of Ohio this question came up. why Honduras and why now? | think we ought to face that. That is the reason we are up against this thing now. Normally. we train in Panama—we have dome that for a decade and a Guard there when the perception was that we are sending our people into the combat zone. That was the public perception. 1986 Senate Hearings. swpre at 22 e General La Vern K Weber (Retired). former Chief of the Ne tonal Guard Bureau discussed the government's position in his testimony to the Senate Subcommittee I submit to you that such deployments are highly desirable. but A-119 This may well be the case, but the government has presented us with no evidence in terms of this argument. Moreover, if the Honduran training controversy is a pro- totype of the dangers this country faces in the absence of the Montgomery Amendment, the following is of some interest. General La Vern E. Weber (Retired), former Chief of the National Guard Bureau, noted that the Honduran controversy had little effect on overall Guard training operations and sug- gested that any difficulties stemming from such a controversy in the future could easily be remedied through existing regula- tions and the withholding of federal funds from non-coopera- tive states. He stated: professionalism right here in the United States, in the schools and maneuver areas Congress has provided for that purpose. Deployment to areas outside the CCNUS [Continental] United States] is highly desirable as adventure training, to enhance morale and give the troops a broad experience, but I submit to you that in a training sense, driving a bulldozer in Fort McCoy, Wisconsin, is very similar to driving a bulldozer in Honduras. 1986 Senate Hearings, supra, at 10001 General Weber also stated Federal training standards must include duty in Honduras, re- gardless of the arena of operation to which units are intended to be deployed in some future confiict. If the Congress believes that, then all Army and Air units, Regular Guard and Reserve must be sent to Honduras. Id. at 100. General Weber concluded: Any legislative action at this time would not serve to improve Guard readiness or availability in the event of emergency or war. If the Congress is concerned that the Chief of the National Guard Bureau cannot employ current directives to ensure prop- er training of the Guard forces, they can, and should, direct that he report periodically on any instances of refusal! to train which are likely to adversely impact on readiness. Id. at 102. A-120 Based on my discussions with key leaders of the Guard, it is my opinion that recent public comments and actions by state authorities have not impaired the nation’s ability to rely on the National Guard nor have they adversely impacted the units’ readiness. I strongly agree and believe the recent actions are only an irritant which can be dealt with through existing stat- utes and regulations. The Chief of the National Guard Bureau has the authority to manage Federal funds appro- priated for Guard Training and can direct action as Chief of the agency serving as the line of authority between the Army and Air Force and the states. 1986 Senate Hearings, supra, at 99.*° One last pragmatic consideration. It is important to realize that National Guard forces were involved in the recent inva- sion of Grenada and the bombing of Libya. In both of these instances, the Guard was activated under 10 U.S.C. § 672, for 40 General Walker described in careful detail the crisis“ in Na- tional Guard training operations that led to the Montgomery Amendment: In 1986 [the year the Montgomery Amendment was enacted | more than 42,000 members of the Army and Air National guards trained overseas in 46 countries. More than 9,000 Army and Air Guard personnel from 43 states and territories trained in Cen- tral America alone. „ „ * The few Governors that have precipitated [the Montgomery Amendment] have stopped a total of 48 people from training in one country—Honduras—not the other 45 countries. Those 48 people constitute 0001 percent of the total deploying force— less people than report to sick call on an average base on a given day, less people than have had to forego scheduled train- ing for employer support reasons and less people than have had to forego participation due to other commitments. Clearly 48 people in comparison to the total deploying forces or the entire Guard strength is insignificant in terms of impact. 1986 Senate Hearings, supra, at 94-3-5 (emphasis added). A-121 “training”, rather than under the operations provisions, 10 U.S.C. §§ 673, 673a, 673b, which require a declaration of emergency or consultation with Congress. See Testimony of Secretary Webb, 1986 Senate Hearings, supra, at 83; Com- The following exchange concerning the recent bombing of Libya by American forces comes from the 1986 Senate Hearings: Senator Levin: Would [the Libvan raid] be treated as a training mission? Mr. Webb: That was under 672(d) which is for training. Senator Levin: So, that use of National Guard troops in Libya was considered a training mission by the DoD? Senator Warner: Under the law. Senator Levin: Is that the way DoD considered it, training? Mr. Webb: Under the law. What you have is the compression of missions once the Total Force Doctrine came into effect so that you have National Guard units all over the world on any given day under the rubric of 672, which is a problem because you have to go all the way from 672 to a Presidential 100-K call-up with very little in between. I understand where you are going and it is a problem. We have a difficult time defining what is an operational mission with the compression of these missions under the Total Force Doctrine. Senator Levin: I wondered whether DoD considered that a training mission in Libya? That is my question. Mr. Webb: I do not have authority to speak on how Secretary Weinberger would have termed that. Senator Levin: Could you answer that also for the record? Could you check with the Secretary's office and let us know that, too? 1986 Senate Hearings, supra, at 82-83. Secretary Webb later sent the subcommittee the following written response to Senator Levin’s question: The Air National Guard aircraft utilized in support of the Libyan raid was already in Europe as part of routine tanker task force activities. Under long standing practice, Guard and Reserve air refueling aircraft supplement active force refueling aircraft assigned to a tanker task force stationed in Europe. The tanker task force provides day-to-day refueling training opportunities to Guard and Reserve crews, and is also available to the theater commander to meet any operational requirement = v = R ˙ ——— —ũꝓU%⏑ . s)he 1 ²—à r eee eee „ ̃ TEE ²˙ öT,—Ü' . ⁰ůf̃ U⁰A ˙ ꝛům m ¾—, e . ˙t;'],—ͤęim ̃é RkP . Äm«łu x i i ja i i iid . — . A-122 ment, supra note 2, at 636. Some commentators have suggested that this use of these active duty provisions for “training” was “surreptitious” and designed to elude the statutory require- ments for operational missions. See Comment, supra note 2, at 636. Whatever the case, prior to the Montgomery Amend- ment, the governors, as the representatives of their states, pro- vided at least some check on the potential abuse of these pro- visions. Without the governors, there would be no check at all. VIII. Conclusion The world has changed since 1787. It is smaller than it once was. We understand that today the nation’s military forces often need to respond instantaneously—that the federal gov- ernment may need to use troops in a variety of situations short of declared wars. Yet, the world has not changed so dramati- cally that we can no longer abide by the provisions of our Constitution, and we are not convinced that the national de- fense will be harmed by our respecting reserved state author- ity over the National Guard. The requirement that the Presi- dent or the Congress declare the existence of a national exigency—particularly when that statement is not subject to challenge—is a small concession indeed to the doctrine of separation of authority which underlies our constitutional system. When the nation did not face a specific threat from within or without, the Framers wished part of the nation’s military power to be under the control of the states to check the possi- bility of abuse of military power by the federal government. that may arise. The Libyan raid was just such an operational requirement. The Guard aircraft was not sent to Europe for the specific purpose of participating in the Libyan raid. Under section 672(d) the crews can be on active duty, including active duty for training. The crew of this Guard aircraft was on active duty. Id. at 83 (attachment). A-123 In this vein, the Constitution of the United States reserves] to the States respectively * * * the Authority of training the Militia * * When the words and the intent come together in such a manner, our duty is clear. Thus, for the foregoing reasons, we find the Montgomery Amendment, which deprives the states of their reserved authority over training the National Guard, violates Article I, Section 8, Clause 16 of the Constitution of the United States. We therefore reverse the judgment of the district court and remand this matter to it for further proceedings consistent with this opinion. MAGILL, Circuit Judge, dissenting. This case presents the issue whether a federal statute that permits National Guard members to be ordered to active duty training without a governor's consent impermissibly infringes authority reserved to the states under the Constitution. Art. I, § 8, cl. 16. In my view, the district court correctly held that Congress’ plenary authority to provide for the national de- fense encompasses the authority to train the Guard while in active federal service. Perpich v. United States, 666 F. Supp. at 1324. Therefore, I respectfully dissent. I am in substantial agreement with the succinct analyses in this case by Judge Alsop and in a similar case by Judge Keeton in the Eastern District of Massachusetts. Dukakis v. Dept. of Defense, 686 F. Supp. 30 (E.D. Mass. 1988), aff'd, No. 88-1510 (Ist Cir. Oct. 25, 1988). This dissent addresses particular aspects of the majority opinion which I believe are in error. The majority missteps in their derivation of the Framers’ intent, and misconstrue Supreme Court precedent dealing with the relationship of the army and militia clauses. As a result, they arrive at a rule for “balancing” those two clauses that is at odds with the text and history of the Consti- A-124 tution and unsupported by judicial authority. I offer an alternative reading of the Framers’ debates on the army and militia clauses, consistent with the language and intent of those constitutional provisions. I. SCOPE OF THE WAR POWER The Constitution gives Congress broad authority to provide for the common defense. At times, the Supreme Court has discussed separately one or another of Congress’ enumerated “war powers.” See, e.g., Tarbles Cuse, 80 U.S. (13 Wall.) 397, 408 (1872). Other times, the Court has described Con- gress’ “war power” in a manner that apparently comprehends all the grants of authority in the specific clauses of article I, section 8 that concern provision for the common defense. See Lichter v. United States, 334 U.S. 742, 757 (1948). The war power, then, is not merely the power “to declare war” in clause 12. Congress is empowered to lay and collect taxes “for the common defense.” Art. I, § 8, cl. 1. The power to raise, support, and regulate armed forces is part of the war power. Cl. 12-14. The powers to regulate and call for the militia are incidental to, and not separate from, Congress’ authority to provide for the common defense. Cl. 15-16. James Madison wrote that the powers conferred upon the federal government with the objective of security against foreign danger were those of “declaring war and granting letters of marque; of providing armies and fleets; of regulating and calling forth the militia; of levying and borrowing money.” The Federalist No. 41 at 256 (J. Madison) (C. Rossiter ed. 1961). Thus, the legitimacy of Congress’ exercise of authority in military affairs does not necessarily rest on the wartime- peacetime dichotomy urged by appellants nor on the express declaration of a national security emergency advanced by the majority. - a. ie a - PF! ee W c r -S,—i(‘ ier. ˙̊yyyp d SO) oe DM — Pi ams | A-125 The power to raise and support armies is central to Con- gress’ war power in times of peace as well as war, because it is the primary business of armies to fight or to be ready to fight wars should the occasion arise.” Schlesinger v. Bal- lard, 419 U.S. 498, 510 (1975). “The responsibility for deter- mining how best our Armed Forces should attend to that business” rects exclusively with the national government, id., and the courts afford great deference to congressional action under the authority to raise and support armies. Rostker v. Goldberg, 453 U.S. 57, 70 (1981). Even in the absence of a declared war, “the constitutional power of Congress to raise and support armies and to mak. all laws necessary and proper to that end is broad and sweeping.” United States v. O’Brien, 391 U.S. 367, 377 (1968) (upholding Congress’ authority to classify and conscript for military service). See also Ash- wander v. Tenn. Valley Authority, 297 U.S. 288, 326-28 (1936) (upholding peacetime maintenance of properties constructed in wartime under power to provide for national defense). Il. ROLE OF THE RESERVE FORCE Pursuant to its constitutional authority, Congress has es- tablished reserve components of the armed forces. 10 U.S.C. § 211, et. seg. The Army and Air Force National Guard of the United States (NGUS) are included among the armed forces “ready reserve” components. 10 U.S.C. § 261. The purpose of the reserve force is “to provide trained units and qualified persons available for active duty.” 10 U.S.C. § 262. Congress intended that the reserve be available for active duty “in time of war or national emergency and at such other times as the national security requires.” 10 U.S.C. § 262. Reserves may be ordered to active duty “in time of war or national emergency declared by Congress.” 10 U.S.C. § 672(a). Active duty is also authorized if the President declares a A-126 “national emergency,” or if he “determines that it is nevessary to augment active forces for any operational mission.” 10 U.S.C. § 673, 673b(a). A reservist may be ordered to active duty “at any time” with the consent of both the individual reservist and the governor of his state guard. 10 U.S.C. § 672(d). And reserves may be activated “at any time” for not more than fifteen days a year, with the governor's consent. 10 U.S.C. § 672(b). The Montgomery Amendment qualified the governor’s statutory right to withhold consent. Appellants contend that the assignment of reserves to active duty for purposes of training, without the governor’s concur- rence, contravenes the “authority for training” the militia reserved to the states by Art. I, § 8, cl. 16. In other words, constitutional constraints on Congress’ authority over the mi- litia underlie the consent provisions of §§ 672(b) and (d). The Department of Defense responds that NGUS Reserves’ mem- bership in state National Guard units does not circumscribe Congress’ authority to train reserve forces while in federal status. Once ordered to active duty, NGUS members are in the service of the United States and thus not subject to state control. 32 U.S.C. § 325 (National Guard members in active federal duty are relieved from duty in state Nationa] Guard). Guard members were “federalized” in 1916, when they were required to sign an oath agreeing to be drafted into federal service and to serve abroad. Act of June 3, 1916, 39 Stat. 166. The role of the Guard as a reserve component of the army was firmly established in 1933, with the dual enlistment system that gave Cuardsmen a dual status as reservists in the NGUS and as militiamen in the National Guards of their respective states. Johnson v. Powell, 414 F 2d at 1063; Drifka v. Brain- ard, 404 F Supp. 425, 427 (W.D. Wash. 1968). In the Armed Forces Reserve Act of 1952, Congress defined the circum- A-127 stances in which the Guard could be ordered to active duty as the NGUS. The governor’s consent provisions were most likely political accommodations to secure support for the Act and were not constitutionally compelled.’ Congress adopted the Armed Forces Reserve Act of 1952, “to provide for a more effective utilization of the reserve components, [and] to assure the maintenance of a strong and vigorous Reserve force.” The Montgomery Amendment is consistent with the purposes underlying the 1952 measure. Congress has since incorporated the NGUS as a central com- ponent of the Armed Forces, under the “Total Force” concept. Congress’ authority to provide for the common de- fense clearly includes the authority to provide for a reserve force. The exercise of that authority does not contravene the state s constitutional role over the militia merely because the ' Reserve Components: Hearings on H.R. 4860 Before the House — on Armed Services, 82d Cong. ist Sess. 475-76, 482-43. 788 During the Civil War, volunteers in the Army of the United States, though no part of the militia, were organized on a militia basis, and the states were given authority to commission officers. Weiner at 192. Thus the 1952 Act is not the only instance where Congress, in the discretionary exercise of its army power, gave some role over federal forces to the states for political, not con- stitutional, reasons. * Perpich, 06 F. Supp. at 1324. But see United States v. Peel, 4 MJ. 28 (C.M.A. 1977). In Peel, although the court stated that the con- sent requirement had both “statutory and constitutional under- pinnings * * te constitutional reference was dictum, and the court made no analysis of the militia or army clauses. H. Rep. No. 1066, 82d Cong ist Sess. 1 (1951). * Hearings on Federal Authority Over National Guard Training Before the Subcommittee on Manpower and Personnel of the Senate Committee on Armed Services. 99th Cong 2d Sess. (1986) (Testimony of James H. Webb, Jr); M Rep. No. 107, 98th Cong let Sess. 202 (1083); Maj. op. at 54. ft i | : 5 f Mm 0 bi ö i ! i 17271 10730, Sept. 24, 1957, 22 FR 7628. The dual structure has also been a weakness. The Cont nenta! organized to carry out missions which Congress could not impose on the militia. During the Civil War, Congress again raised vol. unteers rather than rely on the militia, although the militia could have been called into federal service. During the Spanish War, the militia again was unavailable because foreign service was “out side the constitutional obligation resting upon the militia” Meiner at 187-192. Similarly, the exercise of federal authority has been a problem at times for state uses of the militia. The militias as state forces suffered after the first World War when militiamen who had been drafted were discharged from federal service. Because no prov. sion had been made to restore the militia status of returning guardsmen, states were left without a National Guard Id at 201, A-129 III. THE “CONFLICT” OF CONSTITUTIONAL CONTROL Appellants contend that the militia clause admits of a plain meaning: the power to authorize National Guard training is reserved to the states, including the power to grant or with- hold consent for particular training exercises prescribed by Congress. Appellants do not offer a plain meaning gloss of the army power, but insist that, however broad that power may be, it cannot permit Congress to accomplish by indirection what is elsewhere proscribed directly. Anderson v. Martin, 375 U.S. 399, 404 (1964). Appellants also refer to precedent holding that Congress’ military power is subject to the con- stitutional requirement of due process. L/nited States v. Robel, 389 U.S. 258, 263-64 (1967); Rostker v. Goldberg, 488 U.S. 57, 67 (1981). 4 The majority advances a rule for balancing Congress’ army power with states’ militia training power congressional exer- cise of authority over “militia” training is permissible only (1) upon an express declaration (by the President or Congress) of “the existence of a national exigency or a specific threat to the national security,” or (2) any other time when the state consents. Maj. op. at 35. This requirement purportedly derives from dicta in the Selective Draft Law Cases, 245 U.S. 366 (1918). This “exigency” rule is inappropriate because it is not obvious from the text of the Constitution, it does not square with a fair reading of the Constitution's history, and it is based on a misconstruction of the Selective Draft Law Cases. The Selective Draft Law Cases and Cox v. Wood, 247 U.S. 3 (1918), are the only Supreme Court precedent addressing the scope of Congress’ war power and possible limitations of that power in the militia clause. The Court held that Congress’ power “to call for militia duty” was not limited by the militia A-130 clause restrictions on the uses of federal militia. [Fler the purpose of the war power,” the militia clause was a “wholly incidental, if not irrelevant and subordinate, provision.” Coz v. Wood, 247 U.S. at 6 (1918). The majority reads the Selective Draft Law Cases to hold that “the war and army powers invoked together can super- sede reserved state authority embodied in the militia clauses.” Maj. op. at 23 (emphasis added). That reading ignores the Court's direct comparisons of the army power to the militia power without reference to the power to declare war.“ The Court stated that “the power granted to Congress to raise armies was susceptible of narrowing the area over which the militia clause operated.” Selective Draft Law Cases, 245 U.S. at 384. Congress’ power in the “army sphere” was plenary and complete under the Constitution. /d. at 382. The exercise of the army power was “wisely left to depend upon the discretion of Congress Id. at 383. Control of the militia was left to the states only “to the extent that such control was not taken away by the exercise by Congress of its power to raise armies.” Id. The ma vrity continues its misreading, claiming that Con- gress’ militia clause powers were created to “diminish” the use of the army power “to those situations in which such vast power was strictly necessary.” Maj. op. at 29. The majority suggests that the militia powers “diminish” the power of „The Supreme Court's reliance on the power “to declare wer as one of the clauses giving Congress authority to pass the statute challenged by the Selective Draft Law Cases, 45 US. at 377, yielded a narrow holding of the power to enact compulsory mili. tary service. Congress’ authority to compel registration and draft in cireumstances short of a declared war has been since upheld See United States v. O' Brien, supra; United States « Crocker, 420 FP 2d 300 (8th Cir. 1970) A-131 Congress to raise armies; in fact, the Supreme Court stated that the militia powers “diminished the occasion” for use of the army power. Selective Draft Law Cases, 245 U.S. at 383. The Court did not intimate that Congress’ possession of power over the militia in any way fettered Congress’ power to raise armies; “(t)he latter power when exerted was * complete to the extent of its exertion and dominant.” Id. at 383. The Court concluded that Congress’ power to raise armies was limited “only as ia the discretion of Congress it was deemed the public interest required * * d. at 383-84. I find in the Selective Draft Law Cases no basis for the majority's conclusion that an express declaration of a national security emergency must precede Congress’ exercise of its power to raise armies. IV. THE FRAMERS’ INTENT From its survey of the drafters’ and ratifiers’ debates, the majority concludes that the Framers, motivated by a fear of standing armies, intended that the United States look to the militia as the principal military force for the nation’s defense and as an essential check on federal military tyranny. The majority also concludes that, consistent with these purposes, the militia claur-s must limit the assertions of congressional authority under the army clause. The militia clauses spell out the circumstances in which Congress can call out the militia (clause 15), and divide au- thority for governance of the militia between the central gov- ernment and the states (clause 16). The majority errs in reading these limitations on Congress’ power over the militia as necessarily limiting Congress’ exercise of the army power. The Constitution granted Congress power over the militia and the army to provide for the common defense. Powers over the militia reserved to the states should be interpreted consistently with that purpose. A-132 A. Authority for the Common Defense The majority opinion properly notes that correcting the obvious shortcomings of the Articles of Confederation was foremost among the Framers’ objectives in drafting provisions concerning the common defense.’ The majority errs, however, in asserting that the Constitution intends that principal reli- ance for the national defense be placed upon the state militias. Maj. op. at 6-7. During the Framers’ debates," some delegates speculated that the militia could prove to be a military force sufficient to meet the immediate defensive needs of the United States But ' See else Selective Draft Lew Cases, 45 US. at 336 In the search for originalist interpretations of constitutional in- tent. a cautionary note is found in Madison's views, expressed in correspondence. that “a knowledge of the controversial part of the proceedings of its framers should] be turned te no improper account * * * As @ guide in expounding and applying the provi J Powell The Onginel Understending of Original Intent, 98 Harv. L. Rev 885. 836 Madison also cautioned against uncritical use of The Federelist because “it ts fair to keep in mind that the authors might be sometimes influenced by the seal of advocates” /d As an advocate. Madison ably shifted the emphasis of his own argu ments as warranted by the tenor of the debates in the Constitu- tional Convention, The Federelist, and the Virginia ratification convention. * The contrary view was also in evidence. however At the Constitu- tional Convention, Mr Pinkney of South Carolina expressed “but a scanty faith im Militia,” opining that “there must be also a real military force.” Il Parrand, 332 In the ratification dehate in the Virginia House of Delegates, H Lee spoke from hus sokdiering experience in the War of Independence. defending (Me constitu: tonal commitment of the army power to the central government 1 have seen proof of the wisdom of that paper on your table I have seen incontrovertitNe evidence that the militia cannot always be relied on.” 5 J Elliot. The bestes of the Several State Conver hems on the Adoption of the Federal Constitution, 178 (1801). See alee The Pedereliet No. 25 at 166 (A. Hamilton) (reliance on the militia “had Uke to have lest us our independence”) A-133 Congress’ authority to raise, support, and regulate land and naval forces was not predicated on a first resort to the militia. The debates reflect the delegates’ general distrust of standing armies. The delegates “hoped there would be no standing army in time of peace,” unless a small one.!“ Yet their hopes and fears did not blind them to the possibility that “a standing force of some sort may, for ought we kiow, become unavoid- able. Indeed, a motion to fix a numerical limit on the size of the army in peacetime was unanimously rejected.“ The Convention reached an agreemeut on the basic powers of Con- gress to provide for the public defense before they proceeded to debate Congress’ power to call forth the militia.'* Clearly, the Constitution commits provision for the common defense principally to the national government. Furthermore, the Constitution permits Congress discretion to rely on the powers in Congress’ exclusive possession. B. The Fear of Standing Armies It rejuires a strained reading of the Framers’ debates to conclude that the delegates who viewed primary state control of the militia as an essential check to federal military tyranny carried the day. Several structural provisions addressed the 10 JI Farrand 326 (G. Mason). II Farrand 330 (J. Dayton). 12 Jd. at 330. 13 See McHenry’s concise summary of the Convention's progress on August 18: To make war, to raise armies .] to build and equip fleets, amended to ‘declare war, to raise and support armies, to provide and maintain fleets’ to which was added ‘to make rules for the government and regulation of the land and naval forces The next clause [to cal! forth the aid of the militia] Il Farrand 233. — nee ee — ea * A-134 Framers’ particular objections to standing armies while vesting Congress with the discretion to raise armies when necessary for the common defense. The principles underlying these provisions—plenary authority in the central government, Congress’ power of the purse, end the subordination of the military establishment to civilian control—retain their vitality today. In James Madison’s view, “the best possible precaution against danger from standing armies” was the “effectual estab- lishment of the Union.” “ Without a strong central govern- ment, states left to their own devices could be picked off singly by outside enemies; if a state’s government was usurped by an ambitious faction, jealousy might lead to armed conflict be- tween the states themselves. 14 Madison noted, at the Virginia convention, that the American people complained about the King’s quartering of standing armies “because it was done without the local authority of this country without the consent of the people of America.” 5 Elliot at 413 (J. Madison). See The Declaration of Independence, para. 13-14. The need for structural restraints on standing armies was rooted in the American (and English) experience with military forces unrestrained by popular civil government. B. Bailyn, The /deo- logical Origins of the American Revolution, 61-65 (1967). 15 The Federalist No. 41 at 258-59 (J. Madison). The authors wrote at length against the perils of disunion. Id., Vo. 35 (J. Jay); Nos. 6-9 (A. Hamilton). „ The majority cites Madison's famous essay on controlling the effects of faction in support of the claim that reserved state authority was meant to check “ill-considered political reactions” by the Congress. Maj. op. at 22. In fact, Madison touted the ad- vantages of the larger federal republic over the States in rising above “local prejudices’ that might lead men to sacrifice the pub lic interest to “temporary or partial considerations.” Id. No. 10 at 82-84 The better check on “surreptitious” attempts to elude statutory restraints on the use of the Guard lies not with the Governors, Maj. op. at 6142, but with the Congress A-135 The two-year limitation on appropriations for the army, modeled on Parliament's practice of controlling the purse strings for the King’s army, was an additional precaution.'' The requirement obliged congressional deliberation on the propriety of maintaining a standing military force, and was meant to forestall improvident vesting “in the executive de- partment [of] permanent funds for support of an army.“ A third check was the republicdn structure of the new government. As explained by Alexander Hamilton, putting “the whole power * * * in the hands of the representatives of the people” creates an obstacle to the potential usurpation of power by the military establishment. A further check to the danger of standing armies was “the effectual provision for a good militia.“ If the militia was ‘‘well-regulated” and disciplined, there would be less need for Congress to maintain a standing army in peacetime. The Con- stitution provided for a militia, subject to congressional call, primarily as an alternative to a national army, and not, as the majority contends, as a state force to be marshalled in opposi- tion to the federal government. ‘The majority misreads Alexander Hamilton’s explication of the army and militia powers. Hamilton wrote The Federal- Id., No. 41 at 25940 (J. Madison). See also II Farrand 330 (H. Williamson) (limiting appropriation of revenue was the best guard against danger of a standing army); 5 Elliot at 393-94 (J. Madison) (Constitution puts “the purse * * * in the hands of the representatives of the people”). 1* The Federalist No. 26 at 171 (A. Hamilton). 1% The Federalist No. 28 at 180 (A. Hamilton); Id., No. 24 at 158 (A. Hamilton). See als [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0681%3A02. Public record. Not legal advice.