Amicus Curiae Brief — Perpich v. Department of Defense

3n the Supreme Court of the ¥

OcToser TERM, 1989

RUDY PERPICH, GOVERNOR OF MINNESOTA, ET AL.,

.

v.

DEPARTMENT OF DEFENSE, ET AL., RESPONDENTS

On Writ Of Certiorari To The United States

Court Of Appeals For The Eighth C!reuit

BRIEF FOR THE NATIONAL GUARD ASSOCIATION

OF THE UNITED STATES, NINETEEN GOVERNORS IN

THEIR CAPACITIES AS COMMANDERS IN CHIEF OF

THEIR STATE NATIONAL GUARD, AND THE STATES

OF ALABAMA, ALASKA, DELAWARE, FLORIDA,

GEORGIA, IDAHO, INDIANA, KANSAS, LOUISIANA,

MARYLAND, MISSISSIPP\. MISSOURI, NEVADA,

NEW MEXICO, NORTH CAROLINA, OKLAHOMA,

SOUTH CAROLINA, SOUTH DAKOTA, TENNESSEE,

eS AND WYOMING,

AS AMICI CURIAE A. --f

STEPHEN M. SHar:ro

Micuase. K. KELLoocce

Counsel of Record

Mayer, Brown & Platt

2000 Pennsylvania Ave. NW.

Washington D.C. 20006

(202) 778-0619

* A complete list of amici is found at. pp. iii-iv of this brief.

We’ BEST AVAILABLE COPY "mee.

QUESTION PRESENTED

Whether the Militia Training Clause of the United

States Constitution, art. I, § 8, cl. 16, requires the fed-

eral government to obtain the consent of the Governor

before sending state National Guard units on peacetime

training missions to foreign countries.

(i)

Amici Joining The National Guard

Association of the United States

A. Governors in their capacities as Commanders in Chief

of their state National Guard:

Tue HONORABLE CeciL ANDRUS THe HONORABLE Ray MABUS

Governor, State of Idaho Governor, State of Mississippi

THE HONORABLE THE HONORABLE

HENRY BELLMON JaMes G. MARTIN

Governor, State of Oklahoma Governor, State of

THE HONORABLE North Carolina

Terry E. BRANSTAD THE HONORABLE

Governor, State of lowa Bos MARTINEZ

Governor, State of West Virginia

THE HONORABLE

GARREY CARRUTHERS

Governor, State of New Mexico

THE HONORABLE

MICHAEL N. CASTLES

Governor, State of Delaware

THE HONORABLE WILLIAM P.

CLEMENTS, JR.

Governor, State of Texas

THE HONORABLE

Jor FRANK HARRIS

Governor, State of Georgia

THE HONORABLE

MICHAEL HAYDEN

Governor, State of Kansas

Governor, State of Florida

THE HONORABLE Bos MILLER

Governor, State of Nevada

THE HONORABLE

Buppy ROEMER

Governor, State of Louisiana

THe HONORABLE WILLIAM

DONALD SCHAEFER

Governor, State of Maryland

THE HONORABLE

Georce A. SINNER

Governor, State of North Dakota

THE HONORABLE

JaMes R. THOMPSON

Governor, State of Illinois

THE HONORABLE

Tommy G. THOMPSON

Governor, State of Wisconsin

B. States through their Attorneys General :

MiIcHak. J. BOWERS

Attorney General, State of

Georgia

Ropert A. BUTTERWORTH

Attorney General, State of

Florida

(iii)

Dovc.as B. BAILy

Attorney G-neral, State of

Alaska

CHARLES W. BURSON

Attorney General, State of

Tennessee

J. Joseru CURRAN, JR.

Attorney General, State of

Maryland

WituiaM J. Guste, Jr.

Attorney General, State of

Louisiana

DONALD J. HANAWAY

Attorney General, State of

Wisconsin

Ropert H. HENRY

Attorney General, State of

Oklahoma

Jim JONES

Attorney General, State of Idaho

BrRiAN MCKAY

Attorney General, State of

Nevada

T. TRavis MEDLOCK

Attorney General, State of

South Carolina

Joseru B. MEYER

Attorney General, State of

Wyoming

MIKE MOORE

Attorney General, State of

Mississippi

iv

CHARLES M. Opervy, III

Attorney General, State of

Delaware

LINLEY E. PEARSON

Attorney General, State of

Indiana

DON SIFGELMAN

Attorney General, State of

Alabama

Ropwert T. STEPHAN

Attorney General, State of

Kansas

HAL STRATTON

Attorney General, State of

New Mexico

RopertT A. TELLINGHUISEN

Attorney General, State of

South Dakota

Mary Sue TERRY

Attorney General, State of

Virginia

LAcCY H. THORNBURG

Attorney General, State of

North Carolina

R Pavut VAN DAM

Attorney General, State of Utah

WILLIAM L. WEBSTER

Attorney General, State of

Missouri

TABLE OF CONTENTS

«

INTEREST OF AMICI ©

GT ATIBDAIENT ..........:.--.----n:----00ec-ceeeeseeseesnssrennenvennenenneenens

SUMMARY OF ARGUMENT |... re

ARGUMENT:

THE MILITIA TRAINING CLAUSE GRANTS

CONGRESS AUTHORITY TO SEND STATE

NATIONAL GUARD UNITS OVERSEAS ON

PEACETIME TRAINING MISSIONS WITHOUT

OBTAINING THE CONSENT OF THEIR STATE

GOVERNORS .............. ov sepmaneeeenniatiiacamaneetinetee

A. The Language And History Of The Militia

Training Clause Demonstrate That The Framers

Intended To Give Congress Authority To En-

sure The Uniform And Effective Training Of

The Militia ........... re ae

B. Congress Has Delegated Its Authority Over The

Peacetime Training Of The National Guard To

The President... aL | A eee

C. The President Has Determined That The Reali-

ties Of Modern Warfare Require The National

Guard To Train Throughout The World

D. The Court Should Decide This Case Under The

Militia Training Clause In Order To Preserve

The Delicate Balance Between State And Fed-

eral Authority Over The Militia ...... eee

CONCLUSION .............-------..000 cnn |

(v)

Page

il

13

14

19

21

vi

TABLE OF AUTHORITIES

Cases: Page

Drifka v. Brainard, 294 F.Supp. 425 (W.D. Wash.

ET se 26

Gilligan V. Morgan, 413 U.S. 1 (1978) —............ 11, 14, 22

Johnson V. Powell, 414 F.2d 1060 (5th Cir. 1969) .. 26

Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827)... 26

Maryland v. United States, 381 U.S. 41, vacated on

other grounds, 382 U.S. 159 (1965) .................... 13

Selective Draft Law Cases, 245 U.S. 366 (1918)... 26-27

United States v. Miller, 307 U.S. 174 (1989)........ 13

Constitution and statutes :

United States Constitution :

oe 26

EE ne 3

TT a nae passim

0S passim

Act of May 8, 1792, ch. 33, 1 Stat. 271 ................... 5, 6

Act of January 21, 19038, ch. 196, 32 Stat. 775... 6, 7

National Defense Act of 1916, ch. 134, 39 Stat.

ESERIES. 2h a 7

Act of June 15, 1938, ch. 87, 48 Stat. 153................. 7,8

Gulf of Tonkin Resolution. Pub. L. No. 88-408,

Ee 26

10 U.S.C. $§ 101(10) (B) & (12) (B) ...................... 18, 20

10 U.S.C. §§ 672(b) & (d)....................... aaa aa 8, 9, 20

10 U.S.C. § 672(f) (1989 Supp.) —.......................... 3, 9, 28

ae 18

Ee 19

$2 U.S.C. § 326 ............... | SE SSE ee Coes re 20

Miscellaneous:

Eisenhower, Farewell Address (Jan. 17, 1961)... 27

8 J. Elliot The Debates in the Several State Con-

ventions on the Adoption of the Federal Consti-

tution (1901) ............ oe |

2 M. Farrand Records of the ‘Federal Convention

of 1787 (rev. ed. 1966) ................. 14, 16, 17, 22

Federal Aid in Domestic Disturbances, ‘Sen. Doe.

No. 263, 67th Cong., 2d Sess. (1922) ................. : 6

vii

TABLE OF AUTHORITIES—Continued

Page

t

The Federalist Papers (Rossiter ed. 1961) ....... a

23,

H.R. Rep. 297, 64th Cong., Ist Sess. (1916)... 19

S. Johnson Dictionary of the English Language

CIID ccunecnsssessecssesensniecetinemenaemmnnnmnanmmatassamnentnenaensss 14

13 Journals of the Continental Congress 384

| |, 5, 15

The Militia, S. Doc. No. 695, 64th Cong., 2d Sess.

, |S 4

Oxford English Dictionary (1933) —..................... 14

Roosevelt, Annual Message to Congress (Dec. 3, ‘

ET EEE

S. Rep. No. 135, 73d Cong., Ist Sess. (1933)... 7

S. Rep. No. 1795, 82d Cong., 2d Sess., reprinted

in 1952 U.S. Code Cong. & Admin. News 2005... 21

S. Rep. No. 2129, 57th Cong., 2d Sess. (1902)... 6

Baron de Steuben Regulations for the Order and

Discipline of the Troops of the United States

(reprinted by Greenleaf's Press, New York

RE ere 5-6, 15, 22

Washington, Sentiments On a Peace Establish-

ment (1783), reprinted in H.R. Rep. No. 141,

73d Cong., Ist Sess. 23 (1933) aan ... 16,24

Iu the Supreme Court of the United States

OcToBER TERM, 1989

No. 89-542

Rupy PerpPicH, GOVERNOR OF MINNESOTA, ET AL.,

PETITIONERS

v.

DEPARTMENT OF DEFENSE, ET AL., RESPONDENTS

On Writ Of Certiorari To The United States

Court Of Appeals For The Eighth Circuit

BRIEF FOR THE NATIONAL GUARD ASSOCIATION

OF THE UNITED STATES, NINETEEN GOVERNORS IN

THEIR CAPACITIES AS COMMANDERS IN CHIEF OF

THEIR STATE NATIONAL GUARD, AND THE STATES

OF ALABAMA, ALASKA, DELAWARE, FLORIDA,

GEORGIA, IDAHO, INDIANA, KANSAS, LCUTSIANA,

MARYLAND, MISSISSIPPI, MISSOURI, NEVADA,

NEW MEXICO, NORTH CAROLINA, OKLAHOMA,

SOUTH CAROLINA, SOUTH DAKOTA, TENNESSEE,

UTAH, VIRGINIA, WISCONSIN, AND WYOMING,

AS AMICI CURIAE SUPPORTING RESPONDENTS

INTEREST OF AMICI

The National Guard Association of the United States

(NGAUS) is a nonprofit organization composed of com-

missioned officers and warrant officers of the Army Na-

tional Guard or Air National Guard of the various

States who are simultaneously Reserve Officers with

equivalent ranks in the Army or Air National Guard of

the United States. Current membership in NGAUS is

approximately 58,000. NGAUS is joined here by the

2

Governors of 19 States who, under the laws of their re-

spective States, are the Commanders in Chief of their

state National Guard when those units are not called

into federal service. NGAUS is also joined by 23 States

through their Attorneys General. ;

Because of their dual status, members of NGAUS owe

a dual allegiance. They are military officers of their re-

spective States, subject to the state Constitution and the

orders of the state Governor. At the same time, they

are military officers in the Army or Air Force Reserve,

subject to the Constitution of the United States and the

orders of the President. If the orders of a state Gover-

nor and the President do not conflict, this dual status

raises no legal or practical difficulty. If, however, mem-

bers of NGAUS receive conflicting orders from the

President and their Governor, they are placed in an un-

tenable situation.

To avoid such conflicts, the United States Constitution

carefully delineates the respective spheres of state and

federal control over the various state militias, of which

the National Guard is the modern counterpart. The

Militia Mobilization Clause, art. I, §8, cl. 15, grants

Congress the authority to call the militia into federal

service “to execute the Laws of the Union, suppress In-

surrections and repel Invasions.” Congress also has au-

thority, under the Militia Training Clause, art. I, § 8,

el. 16, “[t]o provide for organizing, arming, and dis-

ciplining, the Militia, and for governing such Part of

them as may be employed in the Service of the United

States.” To the States is reserved “the Appointment of

the Officers, and the Authority of training the Militia

according to the discinline prescribed by Congress.”

This division of responsibility allows Congress to ensure

that National Guard units from the various States can

be readily combined into a highly and uniformly trained

national force, equipped to meet any emergency that

might arise. At the same time, the National Guard is

available for service within the individual States and

constitutes a crucial, decentralized counterbalance to the

dangers of a standing Army identified by the Framers

of the Constitution.

This delicate balance between federal and state con-

trol over the militia has kept America strong and free

for over 200 years. It is now threatened by both sides

in this litigation. Governor Perpich is seeking to arro-

gate to himself a role in foreign affairs by means of a

veto power over federal measures designed to ensure that

the National Guard is capable of meeting the exigencies

of modern warfare. The federal government, by con-

trast, is attempting to override the restrictions of the

Militia Clauses by invoking its powers under the Army

Clause, art. I, §8, cl. 12, the ver powers that the

Framers sought to contain by means of a strong, well-

disciplined militia.

Amici believe that the proper resolution of this case

is to be found in the Militia Training Clause itself.

Congress’s authority to provide for “organizing, arming,

and disciplining, the Militia” is broad enough to encom-

pass orders for National Guard units to conduct peace-

time training missions overseas and is a sufficient con-

stitutional basis for sustaining the Montgomery Amend-

ment. Indeed, given the realities of modern warfare and

modern geopolitics, such training missions are essential

to the development of a unified and effective fighting

force. The authority of individual States to conduct the

actual “training of the Militia, according to the disci-

pline prescribed by Congress” does not give those States

any authority to object to “the location, purpose, type,

or schedule” of such training missions. See 10 U.S.C.

§ 672(f) (1989 Supp.). Thus, this case can and should

be resolved without ever reaching the much broader

Army Clause argument raised by the federal govern-

ment. In that way, the unique hybrid status of the Na-

tional Guard will be preserved, and the balance of power

struck by the Framers will be maintained.

4

STATEMENT

A Short History of the Militia. By all accounts, the

performance of the various state militias during our

War of Independence was, at best, erratic. Indeed, the

militia’s lack of training and discipline in the art of war

was a constant source of complaint by George Washing-

ton to the Continental Congress. See, e.g., Letter from

General Washington (Sept. £4, 1776), quoted in The

Militia, S. Doe. No. 695, 64th Cong., 2d Sess. 23-24

(1917):

To place any dependence upon militia is assuredly

resting upon a broken staff. Men just dragged from

the tender scenes of domestic life, unaccustomed to

the din of arms, totally unacquainted with every

kind of military skill (which being followed by want

of confidence in themselves when opposed to troops

regularly trained, disciplined, and appointed, su-

perior in knowledge and superior in arms), makes

them timid and ready to fly from their own shadows.

Besides the sudden change in their manner of living

(particularly in the lodging) brings on sickness in

many, impatience in all, and such an unconquerable

desire of returning to their respective homes that it

not only produces shameful and scandalous desertions

among themselves but infuses the_like spirit in

others. * * * To bring men to a proper degree of

subordination is not the work of a day, a month,

or even a year; and, unhappily for us and the cause

we are engaged in, the little discipline I have been

laboring to establish in the Army under my im-

mediate command is in a manner done away by hav-

ing such a mixture of troops as have been called

together within these few months.

The role of the militia in the new republic was accord-

ingly one of the most hotly debated topics at the Consti-

tutional Convention (see pp. 15-18, infra). Most of the

Framers wanted to be able to rely on the militia as an

effective federal force in times of peril so as to eliminate

the need for a large standing army. At the same time,

5

there was considerable anti-Federalist sentiment in favor

of the States retaining plenary control over their respec-

tive militias. The Framers, as in so many areas, reached

a delicate compromise between the power of the federal

government and the autonomy of the States. They

granted to Congress the authority to “call{] forth the

Militia to execute the Laws of the Union, suppress In-

surrections and repel Invasions.” Art. I, § 8, cl. 15 (the

Militia Mobilization Clause). And they specified that,

on these occasions, Congress would “govern[{] such Part

of [the Militia] as may be employed in the Service of the

United States.” Furthermore, in order to ensure that

each state militia was prepared to perform its national

duties when called upon to do so, the Framers granted

Congress authority to “provide for organizing, arming,

and disciplining, the Militia,” while reserving to the

States “the Appointment of the Officers, and the Author-

ity of training the Militia according to the discipline pre-

scribed by Congress.” Art. I, § 8, cl. 16 (the Militia

Training Clause).

Congress, however, was slow to exercise its new power.

Flushed with the triumph of the Revolution, and geo-

graphically remote from the squabbles of Europe, Con-

gress contented itself with designating virtually every

able-bodied man between 18 and 45 as a member of his

state militia. Act of May 8, 1792, ch. 33, §1, 1 Stat.

271. As far as “arming” the militia was concerned,

Congress simply required “every citizen so enrolled” to

“provide himself with a good musket or firelock, a suffi-

cient bayonet and belt, two spare flints, and a knapsack

* * * with a box therein to contain not less than twenty-

four cartridges” (ibid). For “discipline,” Congress spe-

cified that “the rules of discipline” adopted by the Con-

tinental Congress in 1779 for the Revolutionary Army

“shall be the rules of discipline to be observed by the

militia throughout the United States” (id. §7 at 273).

See 13 Journals of the Continental Congress 384 (Mar.

29, 1779), adopting Baron de Steuben’s Regulations for

6

the Order and Discipline of the Troops of the United

States (reprinted by Greenleaf’s Press, New York 1794).

And for “organization,” Congress specified the division

of the troops and the necessary officers and required

brigade-inspectors to conduct inspections of the men

while under arms, “superintend their exercise and ma-

noeuvres, and introduce the system of military discipline

before described” (Act of May 8, 1792, § 10 at 273).

Such was the militia of the United States, in times of

war and in times of peace, for over a century. Not sur-

prisingly, the militia performed well in times of peace,

devoting itself to “showy parades in harlequin uni-

forms.” Federal Aid in Domestic Disturbances, Sen.

Doc. No. 263, 67th Cong., 2d Sess. 205 (1922). Equally

unsurprising was the inadequate performance of the

militia when called forth to federal service. Following a

particularly poor showing in the Spanish-American War,

due to inadequate and incompatible training of units,

President Roosevelt declared that “{o]ur militia law is

obsolete and worthless” and sought reforms. Annual

Message to Congress ( Dec. 3, 1901) .'

In the Act of January 21, 1903, ch. 196, § 1, 32 Stat.

775, Congress established for the first time “the organ-

ized militia, to be known as the National Guard of the

State, Territory, or District of Columbia,” with the re-

mainder of able-bodied male citizens to be known as

1In a message to Congress, Secretary of War Elihu Root elabo-

rated on the need for a new militia law:

It is really absurd that a nation which maintains but a small

Regular Army and depends upon unprofessional citizen soldiery

for its defense should run along as we have done for one hun-

dred and ten years under a militia law which never worked

satisfactorily in the beginning, and which was perfectly ob-

solete before any man now fit for military duty was born. The

result is that we have practically no militia system, notwith-

standing the fact that the Constitution makes it the duty of

the Federal Congress “to provide for organizing, arming, and

disciplining the militia.”

S. Rep. No. 2129, 57th Cong., 2d Sess. 1 (1902).

7

“the Reserve Militia.” The Act provided financial grants

to state National Guard units and specified that “|t|jhe

organization, armament, and discipline of the organized

militia * * * shall be the same as that which is now or

may hereafter be prescribed for the Regular and Volun-

teer Armies of the United States.” Jd. §3 at 775. The

National Defense Act of 1916, ch. 134, 39 Stat. 166,

further expanded federal financial support for Guard

units, and also prescribed qualifications for National

Guard officers, providing for their recognition by federal

authorities only should they be found qualified.

In the years following World War !, the National

Guard was reconstituted in more dramatic fashion to

reflect the experience of that conflict. Because the struc-

tural organization of the Army differed from that of the

National Guard, the government was unable to incorpo-

rate volunteer Guard units as units, but instead drafted

Guard members individually. Upon demobilization, the

Guard units had to be painstakingly reconstituted. This

process not only hurt National Guard morale; it was also

viewed as bad federal defense policy, given that trained

units are generally in short supply at the beginning of

a crisis. Accordingly, Congress passed the Act of June

15, 1933, ch. 87, 48 Stat. 153, “so as to eliminate the

delay incident to draft,” to keep Guard units intact, and

“to preserve the traditional character of the Guard as

that of volunteer rather than draftees.” S. Rep. No. 135,

73d Cong., Ist Sess. 2 (1933).

The 1933 Act established the National Guard of the

United States (NGUS) as a reserve component of the

Army of the United States. Appointment as an officer in

a State’s National Guard carried with it a parallel ap-

pointment as an officer in NGUS; this so-called “dual

enlistment” concept is still in place today. While main-

taining the character of the National Guard as essen-

tially a state organization in times of peace, the 1935

8

Act granted the President power to order the National

Guard into federal service whenever “Congress shall

have declared a national emergency and shall have au-

thorized the use of armed land forces of the United

States for any purpose requiring the use of troops in

excess of those of the Regular Army” (§111 at 160).

Guard members ordered into active federal service were

relieved from duty in their state National Guard until

demobilized, at which point they automatically resumed

service in their Guard units (ibid.).

In 1952, Congress extended the circumstances in which

the federal government could call Guard members into

active service. In two provisions, now codified at 10

U.S.C. §§ 672(b) & (d), Congress provided that the Sec-

retary of Defense or his designee could order any Guard

unit into active duty “for not more than 15 days a year”

with the consent of the Governor, and could retain per-

sons on active duty for longer periods of time with the

consent of both the individual and of his Governor.

Since 1952, yearly orders to active duty for training

purposes, usually for two weeks at a time, have been

essential in preparing the Guard for its role as a reserve

component of the United States armed forces, a role that

is now vital to our ability to meet any military exigency.

In 1986, as part of the nation’s Total Force military

capability, 18 of the 28 total Army divisions available in

the event of war were provided in whole or in part by

the Army National Guard. Similarly, the Air National

Guard provided 73 percent of the nation’s air defense

interceptor forces, 52 percent of tactical air reconnais-

sance, 34 percent of tactical airlift, 25 percent of tactical

fighters, 17 percent of aerial refueling, 13 percent of air

rescue and recovery forces, 14 percent of special opera-

tions forces, and 24 percent of tactical air support

forces. See J.A. 12-13 (Testimony of James H. Webb,

Jr.).

9

Facts and Proceedings Below. National Guard troops

are regularly sent for training to foreign countries.”

They proceed under federal orders on “active duty for

training,” as authorized by 10 U.S.C. $§ 672(b) & (d),

in order to come within the protections of the various

“status of forces agreements” that the United States has

with foreign nations and to ensure the availability of

federal benefits if they are killed or injured. J.A. 21.

But during training they remain within their state

Guard units under the direct command of §state-

appointed officers. These officers conduct the actual

training of their units under the general direction of the

Army.

In 1985, National Guard units began conducting train-

ing missions in Honduras. Specifically, over a three year

period, the Guard built a road connecting the Northern

Yoro province, an agricultural center in the interior of

the country, to the town of Olanchito, 50 kilometers

away, with access from there to the seaport of Laceiba.

These missions accordingly served the dual purposes of

training the National Guard to perform a difficult en-

gineering feat in the mountains and jungles of Central

America while at the same time providing humanitarian

aid to an important ally in a conflict-ridden region.

Several Governors objected to this use of their National

Guard and threatened to withhold their consent. Con-

gress responded by passing the Montgomery Amend-

ment, 10 U.S.C. § 672(f) (1989 Supp.), which states

that “/t]he consent of a Governor [to a call to active

duty for peacetime training] 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, purpose, type,

or schedule of such active duty.”

2 As of the end of 1986, more than 42,000 National Guard mem-

bers had participated in overseas training and 69 exercises in 46

countries. J.A. 20 (Testimony of James H. Webb, Jr.).

10

Petitioner Rudy Perpich, the Governor of Minnesota

and Commander in Chief of the Minnesota National

Guard, filed suit seeking a permanent injunction against

enforcement of the Montgomery Amendment. Governor

Perpich also sought a declaratory judgment that the

amendment violated the Militia Training Clause of the

United States Constitution insofar as it infringed on

the power reserved to the States to “train” their respec-

tive militias. The District Court granted summary judg-

ment for respondents (Pet. App. 142-153), holding that

“the Militia clause does not restrain Congress’ authority

[under the Army Clause] to train the National Guard

while the Guard is in active federal service” (id. at

150).

A three-judge panel of the court of appeals reversed.

The case was then reargued en banc, the panel opinion

was vacated, and the judgment of the district court af-

firmed (Pet. App. 1-62). The full court, with two judges

dissenting, held that, when Guard units are ordered into

federal service for training, they are no longer in the

militia; they are part of the Army. “The statutes au-

thorizing this federal action,” the court stated (id. at

10), “are statutes grounded upon the army clause.”

“Congress’ army power is plenary and exclusive. The

reservation to the States of authority to train the militia

does not conflict with Congress’ authority to raise armies

for the common defense and to control the training of

federal reserve forces.” Jd. at 13. Thus, the court held,

“(t]he Montgomery Amendment is a constitutional exer-

cise of Congress’ army powers” which is “beyond the

reach of the militia clause.” Jd. at 10, 13.

11

\ SUMMARY OF ARGUMENT

Petitioners’ assertion (Br. 8-9) that the States have

complete dominion over the peacetime training of the

National Guard is belied by the language of the Militia

Training Clause, art. 1, § 8, cl. 16. “{T]hat provision

is explicit that the Congress shall have the responsibility

for organizing, arming, and disciplining the Militia (now

the National Guard).” Gilligan v. Morgan, 413 U.S. 1,

6 (1973). The States exercise their authority only

through the power to appoint officers and to conduct the

“training of the Militia according to the discipline pre-

scribed by Congress.” Art. I, § 8, cl. 16 (emphasis

added). It is clear from contemporary sources that the

word “discipline” was used by the Framers to describe

whatever training regimen Congress thought necessary to

ensure that the militias of the various States could be

readily combined into a highly and uniformly trained

national force, equipped to meet any emergency that

might arise.

Current political events and modern cechnology dictate

that our Nation’s first line of defense is no longer con-

tiguous with its borders. If the National Guard is to

fulfill its role as part of our Total Force military capa-

bility, it must be trained to respond rapidly to emergen-

cies throughout the world. And that in turn requires

that it be trained throughout the world. To argue, as

petitioners do, that the “discipline” prescribed by Con-

gress cannot reflect these modern realities is as foolish

as to contend that the “arms” provided by Congress are

limited by the Constitution to the musket or firelock of

the Revolutionary War. The Executive Branch has deter-

mined that overseas training of the National Guard is

“an operational necessity” (J.A. 13). It follows that

the President, as part of his delegated authority to pre-

scribe the discipline according to which the National

Guard must be trained, has the power to mandate over-

seas training without fear of being countermanded by

individual Governors.

12

The United States, however, is not content to rest upon

its authority under the Militia Training Clause to send

Guard units overseas. It is seeking to use the “dual en-

listment” of members in boin the National Guard and

the Army or Air Force Reserve to assert untrammeled

command and control over the Guard. But the Militia

Clauses themselves contemplate a hybrid state/federal

militia, with shared control of just the sort that now ex-

ists over the National Guard. And Congress established

the dual enlistment system for the express purpose of im-

plementing, not circumventing, the Militia Clauses. Thus,

the hybrid nature of the National Guard does not create

a backdoor through which the federal government can

obtain units whenever it does not want to be bothered

with the restrictions of the Militia Clauses. The United

States is seeking nothing less than to read those restric-

tions out of the Constitution.

The Framers were not insensible to the necessity for

federal control over the militia in times of military

exigency. But they greatly feared any such aggrega-

tion of power in times oz peace. Accordingly, they “de-

centralized” the military by giving to the States the

power to appoint officers and conduct the peacetime train-

ing of the militia “according to the discipline prescribed

by Congress.” The militia of citizen soldiers, so consti-

tuted, is not a quaint relic of antiquity; it is an essen-

tial counterbalance to the standing Army of professional

soldiers which the Framers uniformly feared. This case

can and should be resolved under the Militia Training

Clause itself without ever reaching the broader argument

urged by the United States. In that way, the unique

status of the National Guard will be preserved, and the

balance between state and federal power struck by the

Framers will be maintained.

13

ARGUMENT

THE MILITIA TRAINING CLAUSE GRANTS CON-

GRESS AUTHORITY TO SEND STATE NATIONAL

GUARD UNITS OVERSEAS ON PEACETIME TRAIN-

ING MISSIONS WITHOUT OBTAINING THE CON-

SENT OF THEIR STATE GOVERNORS

This Court has already recognized that “[t]he National

Guard is the modern Militia reserved to the States by

Art. I, § 8, cl. 15, 16, of the Constitution.” Maryland v.

United States, 381 U.S. 41, 46, vacated on other grounds,

382 U.S. 159 (1965). No one has ever disputed that

essential point. Indeed, by federal statute the Army

and Air National Guard are each defined as the land

and air force, respectively, that “is trained and has its

officers appointed, under the sixteenth clause of section

8, article I, of the Constitution.” 10 U.S.C. $§ 101

(10)(B) & 12(B). See also 32 U.S.C. §§ 101(4) & (6)

(defining the National Guard as “the organized militia of

the several States and Territories”’) .*

Under the Militia Training Clause, therefore, the

States have authority to train the National Guard “ac-

cording to the discipline prescribed by Congress.” The

first question presented to the Court is whether “the

discipline prescribed by Congress” may extend to pre-

scribing the location of training. The issue, in other

words, is whether the Militia Training Clause itself per-

mits Congress to mandate overseas training of the Na-

tional Guard without first obtaining the consent of state

Governors. If, as we contend, it does, then the Mont-

gomery Amendment is plainly constitutional under the

Militia Training Clause, and the Court need never reach

8’ Nor is it disputed that the States have an absolute right to

maintain such a militia, a right guaranteed not only by the Militia

Clauses themselves, but reinforced by the Second Amendment to

the Constitution. See United States vy. Miller, 307 U.S. 174, 178

(1939) (the Second Amendment was added “[w]ith obvious purpose

to assure the continuation and render possible the effectiveness” of

the various state militias).

14

the much broader issue raised by the United States of

whether Congress can exercise plenary control over the

National Guard under the Army Clause, notwithstanding

the limitations of the Militia Clauses.

A. The Language And History Of The Militia Training

Clause Demonstrate That The Framers intended To

Give Congress Authority To Ensure The Uniform

And Effective Training Of The Militia

Petitioners’ assertion (Br. 8-9) that the States have

complete dominion over the peacetime training of the

National Guard is belied by the language of the Militia

Training Clause. “[T]hat provision is explicit that the

Congress shall have the responsibility for organizing,

arming, and disciplining the Militia (now the National

Guard).” Gilligan v. Morgan, 413 U.S. 1, 6 (1973). The

States exercise their authority only through the power

to appoint officers and to conduct the “training of the

Militia according to the discipline prescribed by Con-

gress.” The States, in other words, are the “drill-ser-

geants;” but it is Congress that prescribes the drill. See

2 M. Farrand Records of the Federal Convention of 1787

384 (rev. ed. 1966) (speech by Elbridge Gerry).

The Oxford English Dictionary (1933) defines “disci-

pline” in its military application as: “Training in the

practice of arms and military evolutions; drill. Formerly,

more widely: Training or skill in military affairs gen-

erally; military skill and experience; the art of war.” *

* As examples of the broad and comprehensive meaning of the

word “discipline,” the OED cites Gibbon (1776): “It was the

rigid attention of Aurelian, even to the minutest articles of dis-

cipline, which bestowed such uninterrupted success on his arms;”

Lee (1775): “Without discipline armies aré fit only for the con-

tempt and slaughter of their enemies;” and Harris (1659): “School

of war * * * where all the Martial] Spirits resorted, to learn Dis-

cipline, and to put it in practice.” Dr. Johnson’s Dictionary of the

English Language (1755) gives as one definition simply “Military

regulation,” with a quotation from Richard III: “This opens all

your victories in Scotland,/Your discipline in war, wisdom in peace.”

15

It is in just this broad sense that the word “discipline”

was used in Eighteenth Century America. For example,

the Continental Congress adopted Baron de Steuben’s

Regulations for the Order and Discipline of the Troops

of the United States because “Congress judg([ed] it of

the greatest importance to prescribe some invariable rules

for the order and discipline of the troops, especially for

the purpose of introducing an uniformity in their forma-

tion and manoeuvres, and in the service of the camp.”

13 Journals of the Continental Congress 385 (Mar. 29,

1779). And it was precisely to introduce such “uni-

formity” in training that the Framers of our Consti-

tution granted Congress the power to prescribe the disci-

pline of the militia.

There was a general tension at the Convention between

the desire to form a strong and effective central govern-

ment and the fear that such a central authority would

overshadow the individual States and ultimately deprive

the people of their newly won freedom. At no time during

the Convention was that tension more palpable than in

the attempt to give the federal government the military

means to provide for the common defense, while retain-

ing sufficient military forces under state control to

oppose, by force of arms if necessary, any move towards

tyranny.

The Framers ultimately settled upon the plan laid out

by George Washington in his Sentiments On a Peace

Establishment (1783), reprinted in H.R. Rep. No. 141,

73d Cong., lst Sess. 23 (1933). General Washington

called for a small standing army in times of peace to

be supplemented by the various state militias in times

of war and other national exigency. He stressed, how-

ever, that such a plan would only work if the federai

government could ensure “{a] well organized militia,”

trained “upon a plan that will pervade all the States,

and introduce similarity in their establishment, manéu-

vres, exercise, and arms.” Ibid. Washington belicved

that such a grant of power over the peacetime training

of the militia was essential to ensure an effective, na-

16

tional military force that would render a large stand-

ing army unnecessary. The alternative, as he knew

from bitter experience, was to permit the States to neg-

lect the training of the militia, a neglect that would

result in a number of incompatible and ineffective units

that could not readily be mobilized in defense of the

country.

Despite General Washington’s prestige, the issue was

sharply contested at the Constitutional Convention in

Philadelphia as well as at the ratifying conventions in

the various States. The original plan of the Constitu-

tion contained only the Militia Mobilization Clause. See

2 Farrand at 330. George Mason proposed granting Con-

gress the power “to make laws for the regulation and

discipline of the Militia of the several States reserving

to the States the appointment of the Officers.” He urged

that “uniformity [was] necessary in the regulation of

the Militia, throughout the Union.” Jbid. General Pinck-

ney agreed that “|u]niformity was essential” and

stressed that “{t]he States would never keep up a proper

discipline of their militia.” Oliver Ellsworth protested

that such an amendment “went too far” in “submitting

the militia to the General Government’ and effectively

took “[t]he whole authority over the Militia * * * away

fre. the States whose consequence would pine away to

nothing after such a sacrifce of power.” Jd. at 330-331.

John Dickinson proposed, as a narrower alternative, “to

restrain the general power to one fourth part at a time,

which by rotation would discipline the whole Militia.”

Id. at 331.

The question was submitted to a “Grand Committee”

of eleven, who proposed the Militia Training Clause,

largely in its current form. 2 Farrand at 356. Concerns

were expressed by some delegates over the broad scope of

Congress’s authority to “discipline” the militia. Ells-

worth remarked “that the term discipline was of vast

extent and might be so expounded as to include all

power on the subject.” Rufus King attempted to re-

17

assure Ellsworth that by “disciplining” the committee

meant only “prescribing the manual exercise evolutions

&e.” A number of delegates were not appeased, how-

ever. Elbridge Gerry protested that “[(t]his power in the

United States as explained is making the States drill-

sergeants” and would “take the command from the

States, and subject them to the General Legislature.”

Id. at 385. Ellsworth and Roger Sherman moved to re-

place the Militia Training Clause with narrower lan-

guage, leaving out the word “discipline,” that would

“refer the plan for the Militia to the General Gov-

ernment, but leave the execution of it to the State

Governments.” Jd. at 386. James Madison insisted on

retaining the word “discipline” :

The primary object [of the clause] is to secure an

effectual discivline of the Militia. This will no

more be done if left to the States separately than

the requisitions have been hitherto paid by them.

The States neglect their Militia now, and the more

they are consolidated into one nation, the less each

will rely on its own interior provisions for its safety

& the less prepare its Militia for that purpose; in

like manner as the Militia of a State would have

been still more neglected than it has been if each

County had been independently charged with the

care of its Militia. The Discipline of the Militia is

evidently a National concern, and ought to be pro-

vided for in the National Constitution.

Id. at 386-387 (emphasis in original). Edmund Ran-

dolph echoed these concerns and stressed that “[l]eaving

the appointment of officers to the States protects the

people against every apprehension that could produce

murmur.” Jd. at 387. Ellsworth’s motion was there-

upon defeated by a vote of 10 States to one. Ibid.’

5 At the various ratifying conventions, the Militia Training

Clause was defended (and attacked) in similar terms. Patrick

Henry, for example, called attention “to that part which gives the

Congress power ‘to provide for organizing, arming, and disciplining

the militia, etc.’ By this, sir, you see that their control over our

18

Alexander Hamilton made the clearest statement in

defense of Congress’s power to discipline the militia—

and the clearest indication of the scope of that power—

in The Federalist Papers, No. 29 at 182 (Rossiter ed.

1961):

It requires no skill in the science of war to discern

that uniformity in the organization and discipline of

the militia would be attended with the most beneficial

effects, whenever they were called into service for

the public defense. It would enable them to discharge

the duties of the camp and of the field with mutual

intelligence and concert—an advantage of peculiar

moment in the operations of an army: and it would

fit them much sooner to acquire the degree of pro-

ficiency in military functions which would be essen-

tial to their usefulness. This desirable uniformity

ean only be accomplished by confiding the regula-

tion of the militia to the direction of the national

authority.'*

last and best defense is unlimited.” 3 J. Elliot The Debates in the

Several State Conventions on the Adoption of the Federal Constitu-

tion 52 (1901). Madison, in response, reaffirmed the need for sub-

stantial federal authority over peacetime training: “the on!y pos-

sible way to provide against standing armies is to make them

unnecessary. The way to do this is to organize and discipline our

militia, so as to render them capable of defending the country

against external invasions and internal insurrections.” Jd. at 413.

® Petitioners (Br. at 21) make much of Hamilton’s statement that

the States would retain “the preponderating influence” over the

militia. See also Br. of Massachusetts, et al., at 26. But Hamilton

made it perfectly clear that it was only “the circumstance of the

officers being in the appointment of the States” that would secure

to them such an influence; “the regulation of the militia,” mean-

while, was confided “to the direction of the national authority.”

The Federalist Papers, No. 29 at 182, 186.

Petitioners also rely (Br. at 22 n.15) on Hamilton’s assurance

that the militia would not be sent on “distant and distressing ex-

pedition[s].” But Hamilton does not cite any want of constitutional

authority for such expeditions; the check he foresees is solely a

political one. Federal officials are not likely to “commence their

career by wanton and disgustful acts of power, calculated to answer

19

The Militia Training Clause accordingly gave Con-

gress the power to require that each of the state militias

and the standing army be uniformly organized, armed

and trained, so that in times of national danger they

could be fitted together, like individual bricks in a for-

tress, to form an integrated defense of the union. As

General Washington said, with evident relief, in 1795:

“In my opinion Congress has the power, by the proper

organization, disciplining, equipment, and development

of the militia to make it a national force, capable of meet-

ing every military exigency of the United States.”

Quoted in H.R. Rep. 297, 64th Cong. 1st Sess. 2 (1916).

B. Congress Has Delegated Its Authority Over The

Peacetime Training Of The National Guard To The

President

Congress has delegated to the President the power to

“prescribe regulations, and issue orders, necessary to

organize, discipline, and govern the National Guard.” 32

U.S.C. § 110. Accordingly, the President has the author-

ity to mandate whatever peacetime training he considers

necessary to ensure that the National Guard will be a

uniform and effective fighting force, readily integrated

with the regular Army, and able to respond quickly to

any emergency.

The United States apparently views this delegation of

Congress’s authority under the Militia Training Clause

as irrelevant to the present case bécause, under the dual

enlistment concept, the President can order Guard units

to train in their capacity as reserve components of the

United States armed forces. See Br. in Opp. at 7-8.

Under this view, the President can order a Guard unit

to “active duty for training” at any time and for any

reason, and that unit is then wholly integrated into, and

completely under the command and control of, the Army,

no end, but to draw upon themselves universal hatred and execra-

tion.” The Federalist Papers, No. 29 at 187.

20

notwithstanding the carefully-crafted balance between

state and federal power in the Militia Clauses.

Setting aside the question whether Congress would have

the constitutional authority to establish such a regime, it

does not appear to have been Congress’s intent to do so.

Current federal law in fact favors the alternative view

that the President directs the traming of the National

Guard qua National Guard, without first mobilizing them

as part of the regular Army. The Constitution draws

a fundamental distinction between the peacetime train-

ing of the National Guard under Clause 16 and its

mobilization in times of national crisis under Clause 15,

and federal law is properly read to follow that distinc-

tion. Indeed, Congress itself has stipulated that the

Army and Air National Guard are “trained * * * under

the sixteenth clause of section 8, article I, of the Consti-

tution.” 10 U.S.C. §§ 101(10)(B) & 12(B).

As already noted (see pp. 7-8, supra), the primary

purpose of the “dual enlistment” concept was to permit

National Guard units to be mobilized intact in times

of emergency. The peacetime training of the National

Guard continues as before, with one exception. The

President was given the peacetime authority temporarily

to place Guard units on “active duty for training” status

as part of the Army or Air Force reserve. See 10 U.S.C.

$$ 672(b) & (d). Putting Guard members in federal

status for training serves two purposes: it brings Guard

members within the protections of the various “status of

forces agreements” that the United States has with for-

eign nations; and it ensures the availability of federal

benefits if they are killed or injured. J.A. 21 (testimony

of James H. Webb, Jr.). But it does not take the Na-

tional Guard wholly outside the strictures of the Militia

Training Clause.’

7™When called to active duty for training, Guard members are

technically relieved from duty in their state units. 32 U.S.C. § 325.

Accordingly, no conflict arises between federal orders directing the

21

On these training missions, Guard members are still

under the direct operational command of officers ap-

pointed by the States under the Militia Training Clause,

and it is those state-appointed officers who play the role

of “drill-sergeants.” Individual Guard units may be, and

usually are, fitted into a broader federal structure and

thereby subjected as units to federal direction, but within

units the actual training is conducted by state-appointed

officers. Such overall federal coordination, coupled with

the line authority of state-appointed officers, strikes pre-

cisely the balance required by the Militia Training

Clause. Accordingly, this “quasi-federalization” of the

Guard, for purposes of peacetime training, is both con-

templated and permitted by the Militia Training Clause.

It need not call into play Congress’s general powers un-

der the Army Clause.

C. The President Has Determined That The Realities Of

Modern Warfare Require The National Guard To

Train Throughout The World

Petitioners and their amici themselves acknowledge

that the word “discipline” in the Militia Training Clause

refers to the “substance or content” of training (Pet.

Br. at 46). See id. at 9 (“uniform training exercises’) ;

id. at 10 (“training regimen”) ; id. at 18 (“standards for

training”); Br. of Massachusetts, et al., at 50 (“per-

formance of field exercises and drills”). They nonethe-

less contend that Congress’s authority (and, hence, by

delegation, the authority of the President) to prescribe

such discipline is “narrow” because the field exercises

and drills of the Continental Army consisted only of

training of the Guard and possible state orders putting the Guard

to some other use. But this administrative transfer for purposes of

directing a training exercise does not work a wholesale absorption

of the Guard members into the federal military. Indeed, Congress

expressly disclaimed any intent to “federalize” the National Guard

beyond the minimum required to ensure uniform and effective

training. S. Rep. No. 1795, 82d Cong., 2d Sess., reprinted in 1952

U.S. Code Cong. & Admin. News 2005, 2015.

22

“ ‘the manual exercise evolutions &c’” (id. at 50 (quot-

ing 2 Farrand at 385) ).

But the word discipline cannot be read to freeze in

place the training of a bygone age. As Hamilton re-

marked, with his usual prescience: “What plan for the

regulation of the militia may be pursued by the national

government is impossible to be foreseen.” The Federal-

ist Papers, No. 29 at 184. To argue that the “discipline”

prescribed by Congress cannot reflect the realities of

modern warfare is as foolish as to contend that the

“arms” provided by Congress are limited by the Con-

stitution to the musket or firelock of the Revolutionary

war ~

This Court has recognized that the Militia Training

Clause gives Congress “authority to prescribe and regu-

late the training and weaponry of the National Guard”

and that implicit in that authority is the need to “make

comparative judgments on the merits as to evolving

methods of training, equipping and controlling” the

Guard. Gilligan v. Morgan, 413 U.S. at 8 (emphasis

added). As the art of war changes, so too must the disci-

pline and weaponry prescribed by Congress. And the

art of war has changed fundamentally since 1787. March-

ing and presenting arms on the Cambridge Common are

no longer sufficient training.

Even the antiquated training regimen of Baron de

Steuben stipulated (at 20) that “[t}he captain must

exercise his company in different sorts of ground.” See

also The Federalist Papers, No. 56 at 348 (Madison)

(noting that althuugh “[t]he art of war teaches general

principles of organization, movement, and discipline,

which apply universally,” in prescribing discipline for

the ‘nilitia Congress must take into account “[t|he gen-

eral face of the country, whether mountainous or level,

most fit for the operations of infantry or cavalry’).

If that was true at a time when the art of war consisted

of little more than marching and firing in line, it is cer-

tainly true today when the Guard may be called upon

in times of exigency to respond with sophisticated

weapons to crises throughout the world.

Current political events and modern technology dictate

that our Nation’s first line of defense is no longer con-

tiguous with its borders. If the National Guard is to

fulfill its role as part of our Total Force military capa-

bility, it must be trained to respond rapidly to emergen-

cies throughout the world. And that in turn requires

that it be trained throughout the world. The modern

weapons with which Congress has armed the Guard—for

example, high altitude supersonic fighters, jet transports,

M-1 main battle tanks, laser-guided and optically-guided

anti-tank missiles—are all sensitive to the climatic and

geographical environment in which they are maintained

and operated. Unless Guardsmen are trained to use

those weapons in climatic and geographical conditions

outside the United States, they will not be able to re-

spond effectively in times of emergency. “The added

realism of training outside the United States, in terrain,

climate, transportation and use of-equipment, differences

in operating procedures, and language, provides the best

environment that tests every member of a unit and

enhances readiness.” J.A. 20 (testimony of James H.

Webb, Jr.).

Even petitioners acknowledge (Br. at 46) that “train-

ing on the basis of terrain or climate” is part of the

“substance or content” of training that the President

may prescribe. It must follow that, in order to assure

uniform training, the President may choose the location

of training and that state Governors have no authority

to veto that choice. Guardsmen must train wherever the

regular Army trains so that they can “discharge the

duties of the camp and of the field with mutual intelli-

gence and concert.” The Federalist Papers, No. 29 at

182 (Hamilton). As then Assistant Secretary of De

fense Webb explained to Congress (J.A. 13):

24

We have increasingly staked our national security

on the ability to mobilize, deploy, and employ combat

ready National Guard and Reserve members and

units anywhere in the world rapidly. Consequently,

effective and realistic training th: oughout the world

is a necessity if we are to rely on the men and

women of the National Guard to perform their fed-

eral mobilization missions within current deploy-

ment schedules. Adequate training for National

Guard members who have become more directly in-

volved in our defense posture under the Total Force

Policy is an operational necessity and also an obliga-

tion, owed to those guardsmen who will be committed

to the battlefield, to enhance their proficiency and

ability to fight and survive.

Under these circumstances—where the Executive

Branch has determined that overseas training of the

National Guard is “an operational necessity”—it defies

rational analysis to contend that the President, as part

of his delegated authority to prescribe the discipline

according to which the National Guard must be trained,

has no power to mandate overseas training, but must go

hat in hand to the nation’s Governors to request that

such training be conducted. The Montgomery Amend-

ment simply prescribes a necessary zone of flexibility for

the President so that he can devise an effective training

regimen for the Guard.

D. The Court Should Decide This Case Under The Mili-

tia Training Clause In Order To Preserve The Deli-

cate Balance Between State And Federal Authority

Over The Militia

Our current Total Force policy largely follows the

lines laid out by George Washington over 200 years ago

in his Sentiments On A Peace Establishment. We have

today a small, all-volunteer standing Army supplemented

by highly and uniformly trained National Guard units

prepared to respond quickly and effectively to any emer-

gency. The training, the weapons, and the geopolitical

25

realities have all undergone fundamental changes since

the early days of our Republic; but the constitutional

balance between state and federal authority over the

militia has been preserved. Both sides in this litigation

seek to alter that balance.

The attempt of Governor Perpich to hamstring fed-

eral efforts to ensure a uniformly trained, effective mili-

tia is easily parried. Just as the realities of modern

economic life have led the federal government to exercise

a greater and more intrusive role in traditional state

affairs under the Commerce Clause, so too the realities

of modern warfare and modern politics have led Con-

gress to exercise a greater and more intrusive role in the

training of the National Guard. In both cases, the lan-

guage of our Constitution is not so rigid as to preclude

this increase in federal authority.

But if our constitutional division of power between the

States and the federal government is to have any mean-

ing, there must be limits beyond which federal encroach-

ments may not extend. The United States is unneces-

sarily using this case to test those limits. The United

States is seeking to exercise untrammeled command and

control over the National Guard at all times and in all

circumstances by the simple expedient of invoking the

Army Clause. The United States, in short, wants to

read the Militia Clauses out of the Constitution (or, at

least, read the National Guard—contrary to Congress’s

express intent—out of the Militia Clauses).

Apparently, the United States is primarily concerned

not with the Militia Training Clause, which governs this

case, but with the Militia Mobilization Clause, which

provides that the militia may be called forth “to execute

the Laws of the Union, suppress Insurrections, and re-

pel Invasions.” The United States fears that “[i]f the

National Guard of the United States were subject to

these limitations, this would call into question the con-

stitutional authority of the President to use these forces

26

in the defense of the interests of the United States out-

side our territorial boundaries.” See Opposition to Mo-

tion of Amicus Curiae NGAUS for Leave to Participate

in Oral Argument at 2. This concern is unfounded.

Clause 15 does not impose any inflexible limitation on

the authority of the President to use the National Guard

in defense of U.S. interests overseas. This Court has

previously declared that the circumstances listed in

Clause 15 are examples of “exigenc[ies]” suitable for

calling forth the militia, not rigidly restrictive categor-

ies. See Martin v. Mott, 25 U.S. (12 Wheat.) 19, 28

(1827). Given the international scope of our peacetime

commitments, the President’s authority to deploy mili-

tary force throughout the world must be a broad one.

And whenever American troops take the field to meet a

military exigency—be it in the jungles of Vietnam, on

the beaches of Grenada, over the skies of Libya, or in

the streets of Panama City—the President may mobilize

National Guard units as needed.*

In any event, even if the Militia Mobilization Clause

did impose a limitation on the range of military circum-

stances in which Congress could call forth the National

Guard, Congress could clearly overcome that limitation

by invoking its War Powers.’ In the Selective Draft

8 This Court has held that the President has exclusive authority,

pursuant to congressional delegation, to decide whether “the

exigency [contemplated by Clause 15] has arisen;” his decision is

binding on all other persons and cannot be challenged in court.

Martin v. Mott, 25 U.S. at 28.

® Invocation of the War Powers does not require a formal declara-

tion of war under art. I, § 8, cl. 11. It may be premised on action

like the Gulf of Tonkin Resolution, Pub. L. No. 88-408, 78 Stat.

384 (1964), in which Congress stated that it “approves and supports

the determination of the President, as Commander in Chief, to take

all necessary measures to repel any armed attack against the forces

of the United States and to prevent further aggression.” See

Johnson v. Powell, 414 F.2d 1060 (5th Cir. 1969); Drifka v.

Brainard, 294 F. Supp. 425 (W.D. Wash. 1968).

27

Law Cases, 245 U.S. 366, 375 (1918), the Court held

that in times of armed conflict the federal government

can directly raise and deploy any and all military forces

without regard to the Militia Mobilization Clause. That

holding is clearly correct, for as Madison recognized,

the federal government’s authority must certainly be

“most extensive in times of war and danger.” The Fed-

eralist Papers, No. 45 at 293.

But the United States cannot properly invoke the Se-

lective Draft Law Cases in this case, which involves

peacetime training, not wartime mobilization. The

Framers carefully distinguished between the two be-

cause, although they wanted the protection of a central

Army in times of national crisis, they feared it in times

of peace. Accordingly, they “decentralized” the military

by giving to the States the power to appoint officers and

to conduct the peacetime training of the Militia “ac-

cording to the discipline prescribed by Congress.” The

militia of citizen soldiers, so constituted, is not a quaint

relic of antiquity; it is an essential cour terbalance to

the standing Army of professional soldiers which the

Framers uniformly feared, however necessary they

thought it to be. See The Federalist Papers, No. 46 at

299 (Madison) (noting that the Militia will outnumber

the standing army and thus can be counted upon to repel

any danger ).’°

The reading of the Militia Training Clause that we

propose strikes the very balance sought by the Framers

10 An undue aggregation of power in the federal military may

seem implausible today. But no one can forsee what upheavals,

economic and otherwise, may lie in store for this Nation which

would set the stage for such an occurrence. See Eisenhower, Fare-

well Address (Jan. 17, 1961) (“We must guard against the acquisi-

tion of unwarranted influence, whether sought or unsought, by the

military-industrial complex. The potential for the disastrous rise

of misplaced power exists and will persist.”) In any event, the

Framers chose not to rely wholly on the forbearance and good

offices of the Army, but erected a structural safeguard instead.

28

between overbroad federal control and undisciplined

state control over the militia. The Militia Training

Clause contemplates a hybrid state/federal militia, with

shared control of just the sort that now exists over the

National Guard. Thus, the hybrid nature of the Na-

tional Guard cannot remove it altogether from the re-

strictions of the Militia Training Clause whenever the

federal government waves its “active duty” wand. On

the other hand, the Militia Training Clause cannot be

read to preclude the federal government from ensuring

the combat readiness of the National Guard by prescrib-

ing a regime of discipline that includes overseas train-

ing. The President’s delegated responsibility for the dis-

cipline of the National Guard plainly gives him the au-

thority to determine the “location, purpose, type [and]

schedule” of training without obtaining the consent of

the various state Governors. 10 U.S.C. § 672(f) (1989

Supp.).

We accordingly urge the Court to reject the Govern-

ment’s invitation to decide this case on unnecessarily

broad grounds. The Court need look no further than the

Militia Training Clause itself to find a sufficient consti-

tutional basis for the Montgomery Amendment.

e CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

STEPHEN M. SHAPIRO

MICHAEL K. KELLOGG

Counsel of Record

Mayer, Brown & Platt

2000 Pennsylvania Ave., N.W.

Washington, D.C. 20006

(202) 778-0619

MARCH 1990 Counsel for Amici Curiae