Dukakis v. US Dept. of Defense

• Decision Date: 06 May 1988
• Docket Number: Civ. A. No. 88-227-K.
• Citation: 686 F. Supp. 30
• Court: U.S. District Court — District of Massachusetts
• Parties: Michael S. DUKAKIS, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF DEFENSE, et al., Defendants.

686 F. Supp. 30

Michael S. DUKAKIS, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF DEFENSE, et al., Defendants.

Civ. A. No. 88-227-K.

United States District Court, D. Massachusetts.

May 6, 1988.

Douglas H. Wilkins, Asst. Atty. Gen., Boston, Mass., for plaintiffs.

Vincent M. Garvey, Harriet Kerwin, U.S. Dept. of Justice, Civil Div., Washington, D.C., for defendants.

Peter B. Ellis, Nick Littlefield, Philip W. Mueller, Foley, Hoag & Eliot, Boston, Mass., for amici curiae, Mass. Congressional del.

Francis C. Newton, Jr., Boston, Mass., for amici curiae, Nat. Guard Assoc.

Franklin N. Cunningham, Boston, Mass., for amicus curiae, Boston Chapter, Military Order of the World Wars.

Gary L. Keyser, Asst. Atty. Gen., Baton Rouge, La., W. Arthur Abercrombie, Jr., Sp. Asst. Atty. Gen., Taylor, Porter, Brooks & Phillips, Baton Rouge, La., for amici curiae, State of La., et al.

OPINION

KEETON, District Judge.

This action was brought by the Governor of Massachusetts and the Commonwealth of Massachusetts against the United States Department of Defense and other federal agencies and officials. Plaintiffs' complaint asks this court to declare the Montgomery Amendment, 10 U.S.C. § 672(f), unconstitutional under the Militia Training Clause, U.S. Const. art. I, § 8, cl. 16, insofar as section 672(f) restricts the authority of the Governor to withhold consent to training, outside the United States, of members or units of the Massachusetts National Guard or the Massachusetts unit of the National Guard of the United States.

On April 8, 1988, the court held a trial on stipulated facts. The court received the parties' Stipulation (Docket No. 11) as the only evidence in the case.

I. Stipulated Facts

Exhibit A to the stipulation of facts is a September 29, 1987, communication from the National Guard Bureau ("NGB") to the Commonwealth of Massachusetts, Military Division. That communication states that "with your concurrence and permission" the NGB will nominate the 65th Public Affairs Detachment, Massachusetts (65th PAD) for a training mission in Central America May 28, 1988 through June 11, 1988. The communication further states that "if you nonconcur, you must provide your reasons or rationale for nonconcurring" by October 15, 1987.

Exhibit B to the stipulation is an October 5, 1987, communication from the Adjutant General of Massachusetts to the NGB, requesting that the October 15, 1987, reply date be extended to November 30, 1987. Exhibit C is an October 30, 1987, memorandum from the Adjutant General to the NGB stating:

This State submits a nonconcurrence response for the following reasons:

a. During the period 1 September 1987 through 30 June 1988, there has been an increased demand for public affairs support within the Massachusetts National Guard which has resulted in the assignment of certain assets of the 65th PAD to be scheduled to assist in meeting those demands. Certain activities for which the 65th PAD has or will be employed are the result of both an increase in and the intensity needed to insure that such activities are carried out effectively. These activities are in addition to those normally conducted by the unit during the course of the year.

The memorandum cites nine such activities planned for members of the 65th PAD.

Exhibit D is a responsive communication from the NGB to the Adjutant General stating, in part:

Your request for nondeployment of the 65th PAD to Latin America during FY 88 is not favorably considered.

Exhibit E is a January 25, 1988, letter from the Chief of the NGB to Governor Dukakis. That letter informs the Governor that the Massachusetts National Guard's request to be relieved from the Central American deployment was not approved. The letter further explains that the 65th PAD will perform the training in their "federal status as members of the Army National Guard of the United States," and discusses the provision in section 672(f) that a governor cannot withhold consent to an order to federal active duty outside the United States "because of any objections to the location, purpose, type or schedule of such active duty." The letter concludes by stating:

Section 108 of Title 32, United States Code provides for complete or partial withholding of federal funds from the National Guard of a State that fails to comply with federal requirements. Congress has specifically called for application of this provision of law in the event of violation of Section 672(f) of Title 10, United States Code.

I bring this matter to your attention because of your continuing interest in National Guard training in Central America.

The stipulation sets forth the following additional facts:

5. The NGB intends to order the 65th PAD, Massachusetts, in its federal status as National Guard of the United States, a ready reserve component of the United States Army, into active duty on May 28, 1988 through June 11, 1988, pursuant to 10 U.S.C. § 672(b) or (d). This active duty is intended for training.

6. As stated in the complaint, Governor Dukakis objects and would withhold consent to the above active duty, but for the operation of 10 U.S.C. § 672(f). As stated in the complaint, Governor Dukakis objects to the location, purpose, schedule and type of this training.

7. As stated in the complaint, Governor Dukakis intends to comply with 10 U.S.C. § 672(f) until it has been declared unconstitutional or otherwise stayed. As stated in the complaint, but for 10 U.S.C. § 672(f), Governor Dukakis would not permit the members of the National Guard of the United States, who are also members of the Massachusetts National Guard, including the 65th PAD, to be ordered to active duty in Central America at this time.

8. In the event that members of other units of the National Guard of the United States, who are also members of the Massachusetts National Guard, are ordered to active duty in Central America, the Governor, as stated in the complaint, intends to object to such training if he objects to the location, purpose, type or schedule of the training. As stated in the complaint, with regard to future assignments, Governor Dukakis intends to comply with 10 U.S.C. § 672(f) until that section has been stayed or declared unconstitutional.

II. Constitutional and Statutory Provisions

The following constitutional provisions are at issue in this case:

The Congress shall have Power ...

To raise and support Armies ...;

U.S. Const. art. I, § 8, cl. 12 ("the Armies Clause").

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

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

U.S. Const. art. I, § 8, cls. 15, 16 (referred to jointly as "the Militia Clause").

The following statutory provisions concern the active duty of units or members of the National Guard of the United States ("NGUS"):

§ 672. Reserve components generally

(b) 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....

(d) 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 ... of the State....

In 1985 and 1986, several governors withheld (or indicated their intention to withhold) their consent to active duty deployment of their National Guard units to Central America. In 1986, Congress responded by passing the Montgomery Amendment, which modifies sections 672(b) and (d) as follows:

(f) 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).

III. Historical Background

Under the Militia Act of 1792, virtually every able-bodied man between 18 and 45 was enrolled in the militia and required to arm himself at his own expense. This statute was the only permanent legislation organizing the militia for over one hundred years. Wiener, The Militia Clause of the Constitution, 54 Harv.L.Rev. 181, 187 (1940) (hereinafter "The Militia Clause"). From the time of ratification of the Constitution through the Spanish War, the militia was incapable of adequately serving the country's needs. For example:

When the Mexican War broke out, the militia was unavailable because of the constitutional limitations; service in Mexico was no part of repelling invasions or of suppressing insurrections. Accordingly, Congress authorized the organization of volunteers, who, being organized under the power "to raise and support Armies," were not subject to the restrictions of the militia clause....

Id. at 190 (footnote omitted).

After the Civil War, "the militia contemplated by the Act of 1792, that is, the whole body of the people, virtually ceased to exist, and the States relied more and more upon select bodies of men, trained after a fashion and without uniform...