Gregoire v. Rumsfeld, C05-5583RJB.
| Citation | 463 F.Supp.2d 1209 |
| Decision Date | 14 November 2006 |
| Docket Number | No. C05-5583RJB.,C05-5583RJB. |
| Parties | Christine O. GREGOIRE, Governor of the State of Washington, Plaintiff, v. Donald H. RUMSFELD, in his official capacity as Secretary of Defense, Defendant. |
| Court | U.S. District Court — Western District of Washington |
Sara J. Finlay, Attorney General's Office, Government Operations Division, Olympia, WA, for Plaintiff.
Andrew H. Tannenbaum, U.S. Department of Justice (883) Federal Programs Branch, Civil Division, Washington, DC, Brian C. Kipnis, U.S. Attorney's Office, Seattle, WA, for Defendant.
"This matter comes before the Court on Defendant's Motion to Dismiss (Dkt.16-1) and Plaintiffs Motion for Summary Judgment (Dkt.17-1). The Court has reviewed all documents filed in support of and in opposition to these motions, has reviewed the entire file, and is fully advised.
Plaintiff, Washington Governor, Christine O. Gregoire ("Governor"), filed this action seeking to permanently enjoin the Secretary of Defense, Donald H. Rumsfeld ("Secretary"), from implementing certain of the Defense Base Closure and Realignment Commission's ("Commission" or "BRAC Commission") final 2005 recommendations concerning Washington's Air National Guard ("ANG"). Dkt. 1. The Commission's final recommendations were made pursuant to the Defense Base Closure and Realignment Act of 1990 ("BRAC" or "BRAC ACT"), as amended note following 10 U.S.C. § 2687 (2000 ed., Supp. II). The Governor's Complaint alleges that implementation of the recommendations infringes on Washington State's right to maintain a well regulated militia in violation of the Second Amendment to the U.S. Constitution, violates 32 U.S.C. § 104, and exceeds the Secretary's statutory authority under BRAC. Dkt. 1, at 11-13. In order to fully understand the parties' positions, a review of the background and purpose of both the National Guard and the BRAC Act is necessary.
In the earliest years of our country, two conflicting themes led to a compromise in the text of the Constitution and in later statutory enactments. Perpich v. Dept of Defense, 496 U.S. 334, 340, 110 S.Ct. 2418, 110 L.Ed.2d 312 (1990).
On the one hand, there was a widespread fear that a national standing Army posed an intolerable threat to individual liberty and to the sovereignty of the separate States, while, on the other hand, there was a recognition of the danger of relying on inadequately trained soldiers as the primary means of providing for the common defense. Thus, Congress was authorized both to raise and support a national Army and also to organize the Militia.
Id. Accordingly, the Second Amendment to the U.S. Constitution provides: "[a] well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." The Constitution further provides that Congress shall have power to "provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel invasions." U.S. Const. art. I, § 8, cl. 15. Congress also has the power 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, cl. 16.
The modern National Guard was created in 1903 when, pursuant to. U.S. Const. art. I, § 8, cl. 15 and 16, ("Militia Clauses"), Congress enacted the Dick Act, 32 Stat. 775 (1903). Perpich, at 342, 110 S.Ct. 2418. The Dick Act was amended in 1933 creating "two overlapping but distinct organizations ... the National Guard of the various States and the National Guard of the United States." Id. at 345, 110 S.Ct. 2418. "Under the `dual enlistment' provisions of the statute that have been in effect since 1933, a member of the Guard who is ordered to active duty in the federal service is thereby relieved of his or her status in the State Guard for the entire period of federal service." Id. Members of the National Guard therefore fulfill the historical function of the state militia and, at times, engage in federal service. Id. "In a sense, all of them now 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, 110 S.Ct. 2418. Art. 3 § 8 of the Washington Constitution provides that the Governor is the "commander-in-chief of the military in the state except when they shall be called into the service of the United States."`While in federal service, the President is the commander-in-chief of the National Guard. U.S. Coast. art. II § 2.
In keeping with the dual nature of the National Guard, Congress passed the Armed Forces Reserve Act. 32 U.S.C. § 104. As amended, relevant portions of 32 U.S.C. § 104 provide:
(a) Each State, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands may fix the location of the units and headquarters of its National Guard.
(b) Except as otherwise specifically provided in this title, the organization of the Army National Guard and the composition of its units shall be the same as those prescribed for the Army, subject, in time of peace, to such general exceptions as the Secretary of the Army may authorize; and the organization of the Air National Guard and the composition of its units shall be the same as those prescribed for the Air Force, subject, in time of peace, to such general exceptions as the Secretary of the Air Force may authorize.
(c) To secure a force the units of which when combined will form complete higher tactical units, the President may designate the units of the National Guard, by branch of the Army or organization of the Air Force, to be maintained in each State, the Commonwealth of Puerto Rico, the District of Columbia, Guam, and the Virgin Islands. However, no change in the branch, organization, or allotment of a unit located entirely within a State may be made without the approval of its governor.
The Governor's consent has not been sought, nor been given, for implementation of the 2005 BRAC recommendations regarding the Washington National Guard. Dkt. 1. In order to put the 2005 BRAG recommendations in context, a brief review of BRAC's history and structure is useful.
After struggling with decades of political gridlock, BRAC was enacted to "provide a fair process that [would] result in the timely closure and realignment of military installations inside the United States." 10 § 2687 note (§ 2901(b)). "In adopting [BRAC], Congress was intimately familiar with repeated, unsuccessful, efforts to close military bases in a rational and timely manner." Dalton v. Specter, 511 U.S. 462, 480, 114 S.Ct. 1719, 128 L.Ed.2d 497 (1994)(Souter, J., concurring in part and concurring in judgment). As amended, the 1990 BRAC Act provided for four successive rounds of base closures and realignments in 1991, 1993, 1995, and 2005. 10 U.S.C. § 2687 note (§ § 2903(c)(1), 2904(a)(1)). In contemplation of each closure, BRAG' sets up a distinctive statutory regime, with a series of "tight and rigid deadlines on administrative review and Presidential action, with unbending deadlines prescribed for each round." Dalton, at 480, 114 S.Ct. 1719.
Under BRAC, the 2005 round of the process was to begin when the Secretary certified to Congress that there was a need to close and realign military installations and that such action would "result in annual net savings for each of the military departments." 10 U.S.C. § 2687 note (§ 2912(b)(1)(B)). The President then had until May 15, 2005, to nominate commissioners for Senate confirmation. Id. at § 2912(d). By May 16, 2005, the Secretary was to submit to the Commission a list of U.S. military installations recommended for closure or realignment. Id. at § 2914(a). The Commission, in turn, was required to hold public hearings, prepare a report, reviewing the Secretary's recommendations and making its own recommendations, and then transmit its report to the President by September 8, 2005. Id. at § § 2903(d), 2914(d). The President had until September 23, 2005 to either approve or disapprove of the Commission's recommendations in their entirety. Id. at § 2914(a). If the President had disapproved the Commission's recommendation, the Commission could have sent a revised list by October 20, 2005. Id. at § 2914(e). Upon receipt of the President's approval, Congress had 45 days to enact a joint resolution disapproving the Commission's recommendations. Id. at § 2904(b). Barring a joint resolution, BRAC provides that the Secretary shall initiate all closures and realignments within two years, and complete all closures and realignments no later than six years, after the date the President transmits approval of the Commission's recommendations to Congress. Id. at § 2904(a)(4)-(5).
On May 13, 2005, the Secretary made the following recommendation, among others, to the BRAG Commission:
Realign Fairchild Air Force Base WA. The 141st Air Refueling Wing (ANG) will associate with the 92nd Air Refueling Wing at Fairchild Air Force Base, and the 141st Air Refueling Wing's eight KC-135R aircraft are distributed to the 185th Air Refueling Wing (ANG), Sioux Gateway Airport Air Guard Station, IA.
The 256th Combat Communications Squadron and 242nd Combat Communications Squadron, which are ANG geographically separated units at Four Lakes and Spokane, are relocated into available facilities at Fairchild Air Force Base.
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