Perpich v. US Dept. of Defense, 3-87 CIV 54.
| Decision Date | 04 August 1987 |
| Docket Number | No. 3-87 CIV 54.,3-87 CIV 54. |
| Citation | 666 F. Supp. 1319 |
| Parties | Rudy PERPICH, Governor of the State of Minnesota, and the State of Minnesota, by its Attorney General, Hubert H. Humphrey, III, Plaintiffs, v. UNITED STATES DEPARTMENT OF DEFENSE; United States Department of the Air Force; United States Department of the Army; National Guard Bureau; Caspar W. Weinberger, Secretary of Defense; John O. Marsh, Jr., Secretary of the Army; Edward C. Aldridge, Secretary of the Air Force, and Lieutenant General Herbert R. Temple, Jr., Chief, National Guard Bureau, Defendants. |
| Court | U.S. District Court — District of Minnesota |
Richard K. Willard, Asst. Atty. Gen. and Jerome G. Arnold, U.S. Atty. by Vincent M. Garvey, Leslie K. Shedlin, Washington, D.C., and John Lee, Minneapolis, Minn., for defendants.
Hubert H. Humphrey, III, Atty. Gen., for the State of Minn. by John R. Tunheim and Peter M. Ackerberg, St. Paul, Minn., for plaintiffs.
This matter came before the court on June 15, 1987, upon motions brought by both sides to the lawsuit. Defendants move for a dismissal for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Because defendants submitted materials outside the pleadings, the court shall treat this motion as one for summary judgment. Fed.R.Civ.P. 12(b). For their part, plaintiffs move the court for summary judgment in their favor. Both parties agree that there exist for resolution no disputed issues of fact, and this matter is ripe for summary judgment.
The court reiterates its gratitude to the parties, amici, and their counsel for the able and helpful manner in which they have prepared and submitted this case.
Broadly stated, the issue before the court in this action is the status of the National Guard under the United States Constitution. The term "National Guard" refers to two overlapping, but legally distinct, organizations. Congress, under its constitutional authority to "raise and support armies" has created the National Guard of the United States, a federal organization comprised of state national guard units and their members.1 These state units also maintain an identity as state national guards, part of the militia described in Article I, Section 8 of the Constitution.
Congress has regulated the National Guard under provisions found in Titles 10 and 32 of the United States Code. The provisions in Title 10 relevant to the National Guard deal exclusively with the National Guard of the United States, a ready reserve component of the Army and Air Force. Sections 672(b) and (d) of Title 10 pertain to the active duty of units or members of the National Guard of the United States:
In 1985 and 1986, several governors either withheld their consent under the provisions of §§ 672(b) and 672(d) and objected to the active duty deployment of National Guard personnel to Central America or indicated their intention to do so. See 132 Cong.Rec. H6264-H6268 (daily ed. Aug. 14, 1986). In response to these actions, Congress enacted an amendment offered by Representative Montgomery which precludes governors from withholding their consent under §§ 672(b) and 672(d) because of objections to location, purpose, type, or schedule of the active duty.2
Pursuant to §§ 672(b) or 672(d) of Title 10, United States Code, defendants ordered members of the Minnesota National Guard to active duty for training missions in Central America. These missions were conducted January 3-17, January 9-25, and January 22-26, 1987. Plaintiff Rudy Perpich, Governor of Minnesota, would not have consented to one of the training missions ordered by defendants in January 1987 but for the restrictions imposed by § 672(f). Plaintiffs expect the defendants will order members of the Minnesota unit of the National Guard to active duty for training purposes outside the United States in the future, and plaintiff Perpich intends to withhold consent to defendants' orders if he objects to the location, purpose, type, or schedule of such training.
Plaintiffs contend the Montgomery amendment offends the Militia clause of the Constitution3 by impermissibly impinging upon the states' "authority of training the militia." Plaintiffs argue that the Militia clause reserves to each state exclusive power over training of the National Guard,4 and this reservation requires that Congress obtain gubernatorial consent to training during peace time. Plaintiffs further argue that neither the Army clause5 nor the Necessary and Proper clause6 negates the reservation of peace time training authority over the National Guard found in the Militia clause.
When ordered to active duty under § 672, defendants argue, the National Guard is "Employed in the Service of the United States." See Art. I, Sec. 8, cl. 16. In this status, defendants assert, the National Guard is governed by Congress' plenary power under the Army and Necessary and Proper clauses to provide for the national defense. Defendants contend that the reservation to the states of authority over training the guard simply does not come into play while the National Guard is employed in the service of the United States.
Although this action arises out of a dispute between the parties over the propriety of deploying elements of the Minnesota Unit of the National Guard to Central America for training purposes, the court emphasizes that the wisdom of that deployment is in no sense an issue in this case. Judgment as to the wisdom of this program lies exclusively within the purview of the political branches of government. This court must determine only whether Congress has the power to act as it has.
An understanding of the historical development of the National Guard, particularly as it relates to the evolution of the Guard's dual status, is necessary to a resolution of the parties' dispute. From the time of the Constitution's ratification through the Spanish-American War, the militia, which became known as the National Guards in the latter half of the nineteenth century, was a loosely trained force best suited to drills and "showy parades in harlequin uniforms." See Wiener, The Militia Clause of the Constitution, 54 Harv.L.Rev. 181, 191 (1940) (hereinafter "The Militia Clause"); Federal Aid in Domestic Disturbances, Sen.Doc. No. 263, 67th Cong., 2nd Sess. 205 (1922). As in each previous conflict the nation experienced, the National Guards' performance in the Spanish-American War was unsatisfactory. Some units stood upon their constitutional rights and refused to serve outside the United States. The Militia Clause, supra, at 192. Because of inadequate and incompatible training, those units that did serve did so ineffectually. Id.
Dissatisfaction with the National Guards' performance in the Spanish-American War lead Congress in 1903 to enact the Dick Act, a program of financial grants to state National Guard units. Units receiving grants were required to conform to national standards, including the requirement for drill at least 24 times per year and attendance at a five day summer camp. Id. The National Defense Act of 1916 further expanded the federal government's involvement in the maintenance and training of the National Guard. In addition to reorganizing and expanding the Regular Army and creating an Officers Reserve Corp, the Act restructured the National Guard to enable it to serve as an integral component of the Army of the United States. This restructuring dramatically increased the scope of federal control over the guard by expanding federal financial support for Guard units, prescribing the qualifications of National Guard officers, and providing for their recognition by federal authorities only should they be found qualified. The 1916 Act also required every officer and enlisted man in the National Guard to take a dual oath to support the Nation as well as the State, and to obey not only the governor but also the president. Id. at 200-201.
In the years following World War I, the National Guard again was reconstituted. During this time, the nation was moving toward a "One Army" concept, under which the Regular Army and the various reserve and militia organizations were unified under the administration and command of The United States Army. Id. at 207. In time of peace, however, the National Guard was not yet a part of the Army: "the Army of the United States shall consist of the Regular Army, the National Guard while in the service of the United States, and the Organized Reserves, including the Officers Reserve Corp and the Enlisted Reserve Corp."...
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Perpich v. U.S. Dept. of Defense
...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......
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Perpich v. Department of Defense
...the National Guard of the United States, a federal organization comprised of state national guard units and their members." 666 F.Supp. 1319, 1320 (Minn.1987).4 The fact that these units also maintain an identity as State National Guards, part of the militia described in Art. I, § 8, of the......
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