# Amicus Curiae Brief — Cross v. Federal Labor Relations Authority

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2435%3A5

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 541 U.S. 935

## Text

IN THE OFFICE OF THE CLERK

Supreme Court of the Anited States

MAJOR GENERAL JAMES H. LIPSCOMB III, IN HIS OFFICIAL
CAPACITIES AS THE ADJUTANT GENERAL OF THE STATE OF
MISSISSIPPI, OF THE MISSISSIPPI MILITIA, OF THE MISSISSIPPI
NATIONAL GUARD, AND AS EXECUTIVE HEAD OF THE
MISSISSIPPI MILITARY DEPARTMENT AND THE MISSISSIPPI
MILITIA, THE MISSISSIPPI NATIONAL GUARD and THE
MISSISSIPPI MILITARY DEPARTMENT,

Petitioners,
Vv.

FEDERAL LABOR RELATIONS AUTHORITY, NANCY SPEIGHT,
IN HER OFFICIAL CAPACITY AS REGIONAL DIRECTOR OF THE
FEDERAL LABOR RELATIONS AUTHORITY, ATLANTA REGION
AND LINDA J. NORWOOD, IN HER FORMER OFFICIAL CAPACITY
AS ACTING REGIONAL DIRECTOR OF THE FEDERAL LABOR
RELATIONS AUTHORITY, ATLANTA REGION,

Respondents.

On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fifth Circuit

BRIEF OF THE NATIONAL GUARD
ASSOCIATION OF THE UNITED STATES
IN SUPPORT OF PETITIONERS

ROBERT D. GHOLSON *
GHOLSON & ORR, PLLC
535 North 5th Avenue
Laurel, MS 39441-6523
(601) 425-0400

* Counsel of Record Counsel for Amicus Curiae
National Guard Association
of the United States

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D. C. 20001

QUESTIONS PRESENTED

Whether the Federal Labor Relations Authority has the
power to order state National Guards and their state Adjutants
General” to participate in federal union representation
elections concerning Guard personnel.

Whether the valuable Tenth and Eleventh Amendment
rights of a state official and a state agency may be trumped
by federal statute, when Congress lacks the constitutional
authority to pierce those immunities with its Article I powers.

" As explained by Petitioners, Adjutants General are the senior mili-
tary commander of each state’s National Guard. They are the National
Guard analogue to the Chairman of the Joint Chiefs of Staff in the
federal military.

(i)

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED ...............ccccssssssssssssssssessseee i
TABLE OF AUTHORITIEG................csccsssesssessseeeseees . iv
INTEREST OF THE AMICUS CURIAE............0000000000 l
SUMMARY OF ARGUMENT..............cccccsssssscsssceseeees 2
TE sieht iickiadilienisnsnerinietimstehiieeisansninnineieeneeotnenienes

I. THIS COURT SHOULD GRANT THE
WRIT TO UNDO THE HARM TO OUR
CAREFULLY CRAFTED FEDERAL
SYSTEM CAUSED BY THE FIFTH
CIRCUIT’S FINDING THAT A STATE
ADJUTANT GENERAL AND _ STATE
NATIONAL GUARD CAN BE FEDERAL
EXECUTIVE AGENCIES WHILE IN A
STATE COMMAND STATUG...............:c0000000 3

Il. THIS COURT SHOULD GRANT THE
WRIT TO PREVENT HARM _= TO
NATIONAL SECURITY CAUSED BY THE
POTENTIAL INTERACTION OF THE
DECISION BELOW AND THE POSSE
a TTC vesnsnicocsentirhiiniavbiseceimeiseneneseee 10

IT siniliintsecebiabenilonicmttinimnowicinathetindsenmenieiuteis i2

(iii)

iV
TABLE OF AUTHORITIES
CASES
Clark v. United States, 322 F.3d 1358 (Fed. Cir.

Jones v. New York State Div. of Military Affairs,
166 F.3d 45 (2d Cir. 1999) .........ccccccsssssrrresssseees
Maryland ex rel. Levin v. United States, 381 U.S.
41 (1965), vacated on other grounds, 382 U.S.
RE ET iivnacinnctnsiadbicinsacicitishiibldicibiisanadtaliipiihtiiiilads
Perpich v. DOD, 496 U.S. 334 (1990) .........ssseesees
Selective Draft Law Cases, 245 U.S. 366 (1918)..
United States v. Hutchings, 127 F.3d 1255 (10th
3 Af, RO ROE PRIN Cees a Se Se eR eR
Zitser v. Walsh, 352 F. Supp. 438 (D. Conn.

CONSTITUTIONAL PROVISIONS
Fi I Bi Sa ascend scitecsesoainni

FEDERAL STATUTES

BO IG. & TTI) snncessssecssisestsvecnensssnsssimeninwnninve
BO UA © BSG seiccininnenntororipersvtsnennpratiinnetidivatitionie
SET BR BF sinetssencsvsnnevernssepiabinicniantaniaimmnnintivis
SALA... & BaP sovvncsisonssonsaqnveiiavsconanvocniochinnnvensi
PF BAe & FI) ec secovenssevsnevinisiensvemnviianoniniionsen
OG UR. © Be crises niscisoininssssinrenintacennuoninnenei
De Sees E PEP visteemivesrsiseninianniaiainnaninnitvnat

MISSISSIPPI STATUTES

PING, COS Fe, BSF rE cccescconesenvensccssorctssevnecninns
Miss. Code Ann. § 33-5-1 ............ccsccsssccssssscesesevees
Miss. Code Ann. § 33-1-1 .............ccccccsccsssssssccccsess

passim
I=

9

6

Vv
TABLE OF AUTHORITIES—Continued

OTHER MATERIALS

B. Rich, “The National Guard and Posse
Comitatus” 1994 Army Law 16...........sccsccecseees 9

The Militia Clauses, A National Guard,
Federalism: A Constitutional Tug Of War, 57
George Washington Law Review 3-28, 3-32
(Dec., 1988)(quoting the Records of the
Federal Convention of 1787, at 293 M.
CRAIN TH, PRET) bina ccsiniicosisiersnsnistniisenieseonanionins 5

Page

BRIEF OF THE NATIONAL GUARD
ASSOCIATION OF THE UNITED STATES
IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICUS CURIAE ' |

This Amicus Curiae Brief is filed by the National Guard
Association of the United States, or NGAUS, an organization
that strives to enhance the readiness of each state’s National
Guard and to ensure that they meet their essential goal as full
partners in the conventional forces defending our Nation.
NGAUS was created in 1878 to provide united National
Guard representation before Congress. In the first con-
structive meeting of officers from the North and South after
Reconstruction, the organizational meeting of NGAUS had
the goal of obtaining better equipment, standardized training,
and a more combat-ready force by petitioning Congress for
resources. Today, well over a century later, NGAUS has the
Same mission.

According to its by-laws, the purpose of NGAUS is “to
promote the national security of the United States of
America.” NGAUS is comprised of commissioned officers
and warrant officers of each state and territory’s Army and
Air National Guard who are concerned about the role of the
Guard, as well as a continuation of a strong militia in the
Total Force construct. One key part of achieving this goal
includes striving to ensure the successful continuation
through promotion of the unique, historic dual federal and

' Pursuant to Supreme Court Rule 37.2(a), NGAUS states that the
Parties to this appeal have consented to the filing of this amicus brief.
Pursuant to Supreme Court Rule 37.6, NGAUS states that counsel for
Petitioners did assist NGAUS’ counsel in the preparation of this brief, and
that no person or entity other than NGAUS made any monetary contri-
bution to the preparation or submission of this brief.

2

state missions of each state and territory’s Guard, so to
further their goals and mission.

NGAUS has participated in litigation when it believed that
a national interest is was stake or that the issue of states’
rights was at risk. In the big picture, this means ensuring that
the line of demarcation between federal and state power does
not become blurred or worse, progressively inched further
toward federal domination. This delicate balance of power is
threatened by the decisions below in this case in a way that
directly affects the goals and purposes of the NGAUS.

SUMMARY OF ARGUMENT

This case presents an issue of national importance, whether
the FLRA has the power to order state National Guards and
their state Adjutants General to participate in federal union
representation elections concerning Guard Technician per-
sonnel. The resolution of this question has an importance far
exceeding the impact of potential unionization on a certain
class of Guard personnel.

First, in order to answer the question in the affirmative, the
Fifth Circuit and district court below had to find that state
Guards and their Adjutants General act in a federal capacity,
even though in a state command status, when administering
Guard Technicians. This finding threatens the carefully
crafted state/federal Guard balance, in a manner detrimental
to our federal system and contrary to this Court’s holding in
Perpich v. DOD, 496 U.S. 334, 345 (1990).

Second, the decisions below will, as suggested by
Petitioners, have unintended and negative national security
consequences. The Fifth Circuit’s holding that a state Guard
in a state command status can be a federal agency and part of
the National Guard of the United States—a separate entity
that is a federal reserve component—threatens to criminalize
the use of the each state’s Guard for counterterrorism and

NER Te RE ee NT NEMO Se

3

domestic law enforcement operations under the Posse
Comitatus Act, 18 U.S.C. § 1385, at a time when this Nation
is at war. NGAUS respectfully submits that this result, while
surely unintended by the Court of Appeals below, is alone
sufficient cause for the grant of a writ of certiorari in
this case.

ARGUMENT

NGAUS adopts and reasserts the arguments offered by
Petitioners, but would supplement and emphasize those as
follows:

I. THIS COURT SHOULD GRANT THE WRIT TO
UNDO THE HARM TO OUR CAREFULLY
CRAFTED FEDERAL SYSTEM CAUSED BY
THE FIFTH CIRCUIT’S FINDING THAT A
STATE ADJUTANT GENERAL AND STATE
NATIONAL GUARD CAN BE_ FEDERAL
EXECUTIVE AGENCIES WHILE IN A STATE
COMMAND STATUS.

The Fifth Circuit’s decision in this case misapplied the
carefully crafted Congressional and constitutional scheme
delineating the respective spheres of each state’s National
Guard and the federal government. Ignoring Perpich v.
DOD, 496 U.S. 334, 345 (1990), as well as the National
Guard statutory scheme, the Fifth Circuit found that the
Mississippi Guard and its Adjutant General are federal/state
“hybrids”—a finding that infects the entire decision and
allowed the court below to avoid addressing the major
constitutional issues at stake.

Mississippi, as well as every state in the Union, has a state
militia. The Mississippi Militia, of which Petitioner the
Mississippi Guard is a subset, is composed of the “[n]ational
guard, the Mississippi State Guard, and the unorganized
militia.” Miss. Code Ann. § 33-5-1. Pursuant to Miss. Code

4

Ann. § 33-1-1(d) the “Mississippi National Guard [means]
that part of the organized militia of this state which is
organized, equipped and federally recognized under the
provisions of the laws of the United States and of the State of
Mississippi relating to the National Guard.” /d.

The Governor of Mississippi, not the President of the
United States, is the Commander in Chief of the Mississippi
National Guard (unless impressed into federal service). Miss.
Code Ann. § 33-3-1; Miss. Const. art. V, § 119. This is
because, unless called forth by the President under federal
law, the respective states’ National Guards are state militias,
not federal military entities. Perpich v. DOD, 496 U.S. 334,
350-51 (1990) (recognizing that the militias are state entities).

The concept of the state militias pre-dates even that of the
United States or its Constitution. Further, the Founding
Fathers recognized the need for a militia and addressed it in
Article 1, Section 8 of the Constitution, which provides:

The Congress shall have power. .. . ;

(15) To provide for calling forth the Militia to execute
the Laws of the Union, suppress Insurrections and repel
Invasions;

(16) To provide for organizing, arming, and disciplining
the Militia, and for governing such Part of that as may be
employed in the Service of the United States, reserving
to the States respectively, the Appointment of Officers,
the Authority of training the Militia according to the
discipline prescribed by Congress;

U.S. Const., art. I, § 8, cls. 15 & 16.

The records of the Constitutional Convention indicate that
the Founding Fathers were much concerned about the balance
of federal versus state power in the Union and wanted to
ensure that the states retained appropriate control over their
militias. After much debate, the majority of the drafters
decided that the federal government should not have complete

7

power over militia matters and appropriately reserved certain
control to the states. Thus, in striking a balance between
local and national control, the Constitution provides for a
militia with dual control, alternating between federal and
state, under particular circumstances. The Militia Clauses, A
National Guard, Federalism: A Constitutional Tug Of War,
57 George Washington Law Review 3-28, 3-32 (Dec.,
1988)(quoting the Records of the Federal Convention of
1787, at 293 M.(Farrand Ed. 1911)).

The dual control concept has continued unabated to this
day. Yet Congress has over the years modified the statutory
scheme governing the Guard, so as to streamline its use by
the Nation in times of war or crisis.

For example, following certain problems associated with
the Spanish-American War, Congress enacted statutory
amendments which were known as the Dick Act, of January
21, 1903, 32 Stat.775, in which Congress exercised its power
to organize the militia. The Dick Act provided for an
organized militia to be known as the “National Guard” which
would conform to a regular army organization, be equipped
through federal funds, and be trained by regular army
instructors. Perpich, 496 U.S. at 342.

In 1918, a provision of the National Defense Act which
allowed the federal government to draft Guardsmen for
Overseas assignments was upheld in the Selective Draft Law
Cases, 245 U.S. 366, 368 (1918). In these cases, certain
members of the National Guard challenged the provision of
the National Defense Act which allowed the President to draft
individuals for service overseas. In its opinion, this Court
reasoned that the Militia Clauses were not to be read as a
limitation on Congress’ general war clause power. Impor-
tantly, the National Defense Act as interpreted by this Court
anticipated the concept which would be later known as the
“dual nature of the guard.”

6

In 1933, Congress created a new and separate federal
entity, to be known as the National Guard of the United
States. Perpich, 496 U.S. at 345. To expand federal
authority for activation of individual Guardsmen, and to
remove lingering doubts about the constitutionality of Guard
deployments overseas, each Guardsman on induction was
now required to assume dual statuses. That is, every Guards-
man was to be a potential” federal reservist as well as a
member of their state’s militia. /d. at 345-46.

The modern dual status Guard system was codified in 1952
in the Armed Forces Reserve Act. Pub. L. 82-476, 66 Stat.
481 (1952), which provided that Guardsmen could be called
out by the President for fifteen days each year for any reason,
subject to the consent of their governor. The requirement for
gubernatorial consent was contested in later years as the role
of the Guard expanded, particularly in an area of overseas
operations which were removed from the continental United
States. As a result certain governors refused to allow their
National Guard units to participate in certain overseas opera-
tions. In response to these local restrictions, the Montgomery
Amendment of 1986, Pub. L. 99-661 § 522, 100 Stat. 3(A)16.
(1986) (codified at 10 U.S.C. § 672 (f) Sub 4 (1986)), was
enacted, removing the requirement of gubernatorial con-
sent for federal training by the National Guard. Perpich, 496
U.S. at 346.

A dispute over the constitutionality of the Montgomery
Amendment came to a head in Perpich v. DOD, 496 U.S. 334

? While all Guardsmen are required to also enlist in the separate federal
reserve component entity - the National Guard of the United States -
federal law does not require them to maintain that membership in order to
remain a member of their state’s Guard. Thus, there are Guardsmen who
do not hold “federal recognition,” yet remain members of their state’s
Guard. E.g., Zitser v. Walsh, 352 F. Supp. 438, 440 (D. Conn. 1972)
(“One may be a member of the National Guard of a state without receiv-
ing federal recognition, but never the reverse’”’).

7

(1990). In Perpich, the Department of Defense had ordered
several state National Guard units to serve on active duty in
Central America. Some state governors opposed these out-
of-country federal missions and refused to consent to the
deployments. As the Montgomery Amendment negated the
effect of the governors’ veto and allowed the deployment of
Guard personnel overseas, Governor Perpich of Minnesota
sued the Department of Defense alleging that it could not
deploy the Minnesota guardsmen without gubernatorial
consent. In a unanimous decision, this Court upheld the
constitutionality of the Montgomery Amendment.

Perpich is key to the instant case, not because of its
holding on gubernatorial consent, but because it carefully
explained and delineated the state versus federal status of the
Guard, as well as Guardsmen. Perpich makes it clear that
National Guardsmen are now members of two legally distinct
and separate organizations—their state’s Guard and the
separate National Guard of the United States, a federal
reserve component. /d. at 347 & 347 n.19. This dual system
requires state National Guard members to simultaneously
enroll in their state’s militia as well as the National Guard of
the United States. 10 U.S.C. §101 (11) & (13).

The implication of this dual system is the key to this case;
it means that each member of the National Guard of the
United States when on federal active duty is relieved from
duty in the National Guard of his state from the effective date
of the federal duty order, and remains a federal soldier until
the individual is relieved from that duty. At the time
the individual is relieved from federal duty, he or she
reverts back to the membership in the state Guard unit. 32
U.S.C. § 325(a).

Most importantly, however, unless and until ordered to
active duty in the Army or Air Force, National Guard
members retain their state status as members of their separate
state Guard unit. Perpich, 496 U.S. at 345. As Justice

el,

8

Stevens explained, Guardsmen “[n]ow must keep three hats
in their closets—a civilian hat, a state militia hat, and an army
hat—only one of which is worn at any particular time.”
Id. at 348 (emphasis added). This is “dual” status, not
“hybrid” status.

In sum, as this Court has previously found, unless fed-
eralized, Guardsmen serve in their state capacity as state
militiamen:

It is not argued here that military members of the Guard
are federal employees, even though they are paid with
federal funds and must conform to strict federal
requirements in order to satisfy training and promotion
standards. Their appointment by state authorities and
the immediate control exercised over them by the States
makes it apparent that military members of the Guard
are employees of the States. ...

Maryland ex rel. Levin v. United States, 381 U.S. 41, 48
(1965), vacated on other griéunds, 382 U.S. 159 (1965).
Likewise, each state’s Guard is itself a state agency. F.g.,
Jones v. New York State Div. of Military Affairs, 166 F. 3d
45, 49 (2d Cir. 1999) (New York Guard is state entity);
Hefley v. Textron, Inc., 713 F, 2d 1487, 1493 (10th Cir. 1983)
(Guard “[iJs an arm of the state and entitled to any immunity
which the state possesses. . .”’).

Guardsmen can also be impressed by the President directly
into federal service. E.g., 10 U.S.C. §§ 331-333 & 12406
(authorizing executive officials to call forth the militia of the
States). Finally, they can be mobilized to active duty in the
federal military through their membership in the separate
federal reserve component, the National Guard of the United
States. Perpich, 496 U.S. at 350 n.21 (recognizing that
“Congress has by different statutes provided for activating the
National Guard of the United States and for calling forth the
militia, including the National Guards of the various States”’).

9

Thus, the above discussed Titles 10 and 32 Guard statutory
scheme, as well as Perpich, make it clear that an Adjutant
General and a state Guard’s status-at dny given time is a
function of who has command authority, a governor or the
President. This is because. in the context of the Guard,
whether one is in a state or federal status ““[dJepends solely on
whether command of the Guardsman has been taken away
from a state’s governor by one authorized to do so by
Congress.” United States v. Hutchings, 127 F. 3d 1255,
1258-59 (10th Cir. 1997). (emphasis added); accord Gilbert
v. United States, 165 F. 3d 470, 473 (6th Cir. 1999) (quoting
B. Rich, The National Guard and Posse Comitatus” 1994
Army Law 16, 19 (“‘[t]he issue of status depends on com-
mand and control and not on whether: state or federal benefits
apply; state or federal funds are being used; the authority for
the duty lies in state or federal law; or any combina-
tion thereof’”’)).

Here, the Fifth Circuit’s finding that the Adjutant General
and the Mississippi Guard are “hybrids” that can simul-
taneously hold both a state and federal status, is directly
contrary to the holding of Perpich, 496 U.S. 345-46, that
Guardsmen cannot—as a matter of law—wear a state and a
federal hat at the same time. This mutually exclusive duality
is important, because, as pointed out by Petitioners, the state
Status of nonfederalized Guardsmen is a “[c]onstitutional
aspect” of their service. Perpich, 496 U.S. at 349.

The Fifth Circuit’s decision in this case threatens this
carefully crafted Congressional and constitutional scheme
delineating the respective spheres of state versus federal
military power. It also runs contrary to the Founding Father’s
vision for dual control of the militia.

Simply put, it is very important—both as a matter of
Federalism, as well as the interworkings of the Guard and the
Active Components—that the demarcation line of authority
between the federal military and each state’s militia be

10

maintained. For this reason, NGAUS respectfully submits
that a writ of certiorari should be granted to review and
overturn the decision below, which mistakenly conflated the
mutually exclusive state versus federal statuses of each state’s
Guard and Adjutant General.

II. THIS COURT SHOULD GRANT THE WRIT TO
PREVENT HARM TO NATIONAL SECURITY
CAUSED BY THE POTENTIAL INTERACTION
OF THE DECISION BELOW AND THE POSSE
COMITATUS ACT.

If left undisturbed, the Fifth Circuit’s decision will harm
national security. It should go without saying that this Nation
is at war on multiple fronts. Not only are American troops
fighting in Afghanistan and Iraq, the War on Terrorism has
tragically reached our own soil. In this post-9/11 world, each
state’s National Guard is playing a critical role in this War.

This fact is important, because generally speaking, the
Posse Comitatus Act prohibits the use of “[a]ny part of the
[federal] Army or Air Force as a posse comitatus or otherwise
to execute the laws...” 18 U.S.C. § 1385 (emphasis added).
For this reason, with some limited exceptions, federal troops
cannot be used in certain types of domestic operations.

However, under the Posse Comitatus Act, it has long been
accepted that the Guard—because it is not a part of the
federal military—is not prohibited from engaging in domes-
tic operations. Recognizing that, since 9/11 thousands of
Guardsmen across the Nation have engaged in critical
counterterrorism and law enforcement operations, while in a
state status. For example, and as pointed out by Petitioners,
in the post-9/11 period, Guardsmen were detailed as security
at airports nationwide. Further, many states have used
Guardsmen to protect nuclear and other key infrastructure
facilities from terrorist attack. Importantly, these Guardsmen
have served these missions in a state status—as members of

‘

11

their respective states’ Guards—so as not to violate the Posse
Comitatus Act’s prohibition on certain domestic operations
by federal troops.

Here, the Fifth Circuit’s holding that a state National Guard
is a federal agency and part of the National Guard of the
United States, threatens to criminalize the use of the states’
Guards for these and certain other domestic operations. This
is because under 10 U.S.C. § 3062(c), the National Guard of
the United States is indisputably part of the Army.

Thus, if the Fifth Circuit’s finding that the states’ National
Guards are a subpart of National Guard of the United States
stands, some may well contend that use of state National
Guards for certain domestic counterterrorism and law en-
forcement operations is a felony. See Clark v. United States,
322 F.3d 1358, 1367 (Fed. Cir. 2003) (“To include a National
Guard member in a reserve component ...when he is in
service to the state National Guard would be to treat that
member as a federal employee, and not as a state serviceman.
and would be contrary to [Posse Comitatus]’”).

Such a result, especially with this Nation at war on our own
soil, would seriously damage national security. NGAUS
respectfully submits that avoidance of this result alone
justifies the grant of a writ of certiorari.

12
CONCLUSION

For the foregoing reasons, a writ of certiorari should issue
to review the judgment of the Fifth Circuit Court of Appeals.

Respectfully submitted,

ROBERT D. GHOLSON *
GHOLSON & ORR, PLLC
535 North Sth Avenue
Laurel, MS 39441-6523
(601) 425-0400

* Counsel of Record Counsel for Amicus Curiae
National Guard Association
of the United States

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2435%3A5. Public record. Not legal advice.