Perpich v. United States Department of Defense

MAGILL, Circuit Judge. In this opinion, we address a challenge to the constitutionality of the Montgomery Amendment, which restricts the power of state governors to withhold consent to federal deployment 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 constitutional exercise of congressional power. I. In 1985 and 1986, several governors objected to deployment of National Guard personnel to Central America. The governors withheld (or threatened to withhold) their consent to federally ordered active duty missions by their States’ National — 13 — Guards. 10 U.S.C. § 672(b), (d) (1982).1 In response, Congress enacted the Montgomery Amendment, which prohibits 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).2 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.3 Because Perpich wanted to withhold consent to further orders, the Governor and the State of Minnesota filed this suit. Perpich sought a declaration 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 Amendment infringes “the Authority of training the Militia” reserved to the States by the Constitution. U.S. Const. art. 1, § 8, cl. 16. Perpich also sought to enjoin any federal order commanding members of the Minnesota unit of the National Guard to active duty for training outside of the United States without Perpich’s consent. The district court,4 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 Congress’ 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 (1st Cir.1988) (per curiam), cert. denied, — U.S. -, 109 S.Ct. 1743, 104 L.Ed.2d 181 — 14 — (1989). The court granted summary judgment to defendants, and Perpich appealed. A divided panel of this court reversed, holding that the Montgomery Amendment violated the constitutional reservation of state authority to train the Militia, and that National Guard personnel could not be ordered to active duty for training 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 Montgomery Amendment. II. This case involves conflicting assertions of sovereignty by the state and national governments. Perpich5 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 decision to withhold consent based on objections to the location or purpose of Guard training would infringe the national government’s exclusive authority to conduct the national defense. Today, the militia (with a number of exceptions of no importance 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 unorganized militia. Id. § 311(b). The National Guard is the organized militia of the several States. Id. § 101(10), (12).6 The National Guard of the United States (NGUS) consists of the members of the National Guard or organized militia who are also enlisted in a reserve component of the United States Army or Air Force. Id. § 261.7 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 enlistment — 15 — system, 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 component 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, § 18, 48 Stat. 160. In establishing the National Guard of the United States, Congress invoked its army clause powers. H.R.Rep. No. 141, 73d Cong., 1st 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 strengthening of the armed forces’ reserve components. Armed Forces Reserve Act of 1952, ch. 608, § 233(c), (d), 66 Stat. 481, 490. See S.Rep. No. .1795, 82d 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 components 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 circumstances.8 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 of 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 1034, H.R.Rep. No. 107, 98th Cong., 1st 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 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 1, section 8, clause 12 gives Congress the power “to raise and support Armies * * Clause 16 “reserves] to the States respectively the Authority of Train — 16 — ing the Militia according to the discipline prescribed by Congress.” Minnesota asserts its sovereignty over the organized militia, legally constituted as the Minnesota Units of the Army and Air National 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’ “Authority 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 Congress 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, 20 L.Ed. 597 (1872). In the Selective Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349 (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 the exigencies which would call it in part or in whole into play.” 245 U.S. at 382-83, 38 S.Ct. at 163. More recently, the Court has observed 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, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). The dual enlistment system, under which Guard members enlist and serve in both a state National Guard and the federal 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 Department of Defense, 686 F.Supp. 30 (D.Mass.), aff'd, 859 F.2d 1066 (1st 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 otherwise, 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, 103 S.Ct. 2362, 2365-66, 76 L.Ed.2d 586 (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 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, 38 S.Ct. at 163. 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 Congress 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 — 17 — 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 exerted 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 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 383-84, 38 S.Ct. at 163. Cox v. Wood, 247 U.S. 3, 6, 38 S.Ct. 421, 421-22, 62 L.Ed. 947 (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 constitutional grant from which the authority was derived and knew no limit deduced from a separate, and for the purpose 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 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-enlistment 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 Militia 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 constrain 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 reservation to the — 18 — 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. The Montgomery Amendment is a constitutional exercise of Congress’ army powers. The judgment of the district court is affirmed. Footnotes [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 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 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 active 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 concerned 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 Authorization 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, purpose, type, or schedule of such active duty. 10 U.S.C. § 672(f) (Supp. IV 1986). [3] The defendants, the Departments of Defense, Army, and Air Force and their Secretaries, and the National Guard Bureau and 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. [4] The Honorable Donald J. Alsop, United States District Judge for the District of Minnesota. [5] The States of Colorado, Maine, Massachusetts, Ohio and Vermont appear jointly as amici curiae in support of appellants. The National Guard Association of the United States (supported by the states of Alabama, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Mississippi, 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 Enlisted 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. [6] "The term 'National Guard’ means the Army National Guard and the Air National Guard." Id. § 101(9). “Army National Guard” means: that part of the organized militia of the several States and Territories, Puerto Rico, the Canal Zone, and the District of Columbia, active and inactive, that— (A)is a land force; (B) is trained, and has its officers appointed, under the sixteenth 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 U.S.C.A. § 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). [8] In addition to the provisions of § 672(b) and (d), Reserves may be ordered to active duty in the following circumstances: reserves may he 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. § 672(a); 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 obligation has been delinquent or unsatisfactory, id. § 673a(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 National Guard of the United States may be ordered, with their consent, to active duty in the National Guard Bureau, id. § 3496(a).