Perpich v. U.S. Dept. of Defense

• Decision Date: 28 June 1989
• Docket Number: No. 87-5345,87-5345
• Citation: 880 F.2d 11
• Parties: Rudy PERPICH, Governor of the State of Minnesota; State of Minnesota, by its Attorney General Hubert H. Humphrey, III, Appellants, v. UNITED STATES DEPARTMENT OF DEFENSE, United States Department of Air Force, United States Department of Army, National Guard Bureau, Caspar W. Weinberger, Secretary of Defense; John O. Marsh, Jr., Secretary of the Army; Edward C. Aldridge, Secretary of the Air Force; Lt. Gen. Herbert R. Temple, Jr., National Guard Bureau, Appellees. Commonwealth of Massachusetts, Amicus Curiae, U.S. National Guard Assn., Amicus Curiae.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 11

880 F.2d 11

58 USLW 2030

Rudy PERPICH, Governor of the State of Minnesota; State of

Minnesota, by its Attorney General Hubert H.

Humphrey, III, Appellants, v. UNITED STATES DEPARTMENT OF DEFENSE, United States

Department of Air Force, United States Department of Army,

National Guard Bureau, Caspar W. Weinberger, Secretary of

Defense; John O. Marsh, Jr., Secretary of the Army; Edward

C. Aldridge, Secretary of the Air Force; Lt. Gen. Herbert

R. Temple, Jr., National Guard Bureau, Appellees.

Commonwealth of Massachusetts, Amicus Curiae,

U.S. National Guard Assn., Amicus Curiae.

No. 87-5345.

United States Court of Appeals,

Eighth Circuit.

Submitted Feb. 16, 1989.

Decided June 28, 1989.

John R. Tunheim, St. Paul, Minn., for appellants.

John Bolton, Bethesda, Md., for appellees.

Before McMILLIAN, Circuit Judge, HEANEY, Senior Circuit Judge, and ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL and BEAM, Circuit Judges, EN BANC. ^*

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 Guards. 10 U.S.C. Sec. 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. Sec. 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, Sec. 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 (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. Perpich ⁵ 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. Sec. 311(a). The militia is divided into two classes, the organized militia and the unorganized militia. Id. Sec. 311(b). The National Guard is the organized militia of the several States. Id. Sec. 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. Sec. 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, Sec. 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 system, id., Secs. 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, Sec. 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. Sec. 672(b) and (d) as part of a comprehensive strengthening of the armed forces' reserve components. Armed Forces Reserve Act of 1952, ch. 608, Sec. 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, Secs. 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. Sec. 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 "reserv[es] to the States respectively the Authority of Training the Militia according to the discipline prescribed by Congress." Minnesota asserts its sovereignty over the organized militia, legally constituted as the Minnesota Units of...