Perpich v. Department of Defense (1990)

Perpich v. Department of Defense (1990)

496 U.S. 334

Congress by statute has established that all persons who enlist in a state National Guard unit simultaneously enlist in the National Guard of the United States and become part of the Enlisted Reserve Corps of the Army. In emergency situations the President as Commander-in-Chief might call up these units for national defense. In 1952, Congress authorized orders to call up these units to “active duty or active duty for training” in nonemergency situations, but only with gubernatorial consent. During the early 1980s, two governors refused to consent to National Guard training missions in Central America, where hostilities were going on. Congress responded by adopting the Montgomery Amendment, which authorized the President to order members of the National Guard to active duty for training outside the United States during peacetime without the consent of the state governor or the declaration of a national emergency. Governor Rudy Perpich of Minnesota challenged the law, claiming that it invaded state authority secured by the militia clauses of the Constitution (Article I, section 8, clauses 15 and 16). The district court rejected this argument, but a panel of the court of appeals reversed. On rehearing before the court of appeals sitting en banc—that is, with all the judges of the court hearing the case—the court of appeals vacated the panel’s ruling and affirmed the district court’s judgment. The Supreme Court granted certiorari.

Opinion of the Court: Stevens, Rehnquist, Brennan, White, Marshall, Blackmun, O’Connor, Scalia, Kennedy.

MR. JUSTICE STEVENS delivered the opinion of the Court.

The question presented is whether the Congress may authorize the President to order members of the National Guard to active duty for purposes of training outside the United States during peace time without either the consent of a state governor or the declaration of a national emergency.

A gubernatorial consent requirement that had been enacted in 1952 was partially repealed in 1986 by the “Montgomery Amendment,” which provides: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.”

In this litigation the Governor of Minnesota challenges the constitutionality of that Amendment. He contends that it violates the Militia Clauses of the Constitution. *[1]

… Two conflicting themes, developed at the Constitutional Convention and repeated in debates over military policy during the next century, led to a compromise in the text of the Constitution and in later statutory enactments. On the one hand, there was a widespread fear that a national standing Army posed an intolerable threat to individual liberty and to the sovereign 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 to both raise and support a national army and also to organize “the Militia.”

… Since 1933 all persons who have enlisted in a state National Guard unit have simultaneously enlisted in the National Guard of the United States. In the latter capacity they became a part of the Enlisted Reserve Corps of the Army, but unless and until ordered to active duty in the Army, they retained their status as members of a separate state Guard unit. Until 1952 the statutory authority to order National Guard units to active duty was limited to periods of national emergency. In that year, Congress broadly authorized orders to “active duty or active duty for training” without any emergency requirement, but provided that such orders could not be issued without gubernatorial consent. The National Guard units have under this plan become a sizeable portion of the Nation’s military forces; for example, “the Army National Guard provides 4 percent of the combat units and 28 percent of the support forces of the Total Army.” Apparently gubernatorial consents to training missions were routinely obtained until 1985, when the Governor of California refused to consent to a training mission for 450 members of the California National Guard in Honduras, and the Governor of Maine shortly thereafter refused to consent to similar mission. Those incidents led to the enactment of the Montgomery Amendment and this litigation ensued.

The Governor’s attack on the Montgomery Amendment relies in part on the traditional understanding that “the Militia” can only be called forth for three limited purposes that do not encompass either foreign service or nonemergency conditions, and in part on the express language in the Militia Clause reserving the States “the Authority of training the Militia.” The Governor does not, however, challenge the authority of Congress to create a dual enlistment program. Nor does the Governor claim that membership in a state Guard unit—or any type of state militia—creates any sort of constitutional immunity from being drafted into the federal armed forces. Indeed, it would be ironic to claim such immunity when every member of the Minnesota National Guard has voluntarily enlisted, or accepted a commission as an officer, in the National Guard of the United States and thereby become a member of the reserve corps of the Army.

The unchallenged validity of the dual enlistment system means that the members of the National Guard of Minnesota who are ordered into federal service with the National Guard of the United States lose their status as members of the State militia during their period of active duty. If that duty is a training mission, the training is performed by the Army in which the trainee is serving, not by the militia from which the member has been temporarily disassociated.

This conclusion is unaffected by the fact that prior to 1952 Guard members were traditionally not ordered into active service in peace time or for duty abroad. That tradition is at least partially the product of political debate and political compromise, but even if the tradition were compelled by the text of the Constitution, its constitutional aspect is related only to service by State Guard personnel who retain their state affiliation during their periods of service. There now exists a wholly different situation, in which the state affiliation is suspended in favor of an entirely federal affiliation during the period of active duty.

This view of the constitutional issue was presupposed by our decision in the Selective Draft Law Cases (1918). Although the Governor is correct in pointing out that those cases were decided in the context of an actual war, the reasoning in our opinion was not so limited. After expressly noting that the 1916 Act had incorporated members of the National Guard into the National Army, the Court held that the Militia Clauses do not constrain the powers of Congress “to provide for the common Defence,” to “raise and support Armies,” to “make Rules for the Government and Regulation of the land and naval Forces,” or to enact such laws as “shall be necessary and proper” for executing those powers.

The Militia Clauses are—as the constitutional text plainly indicates—additional grants of power to Congress. The first empowers Congress to call forth the militia “to execute the Laws of the Union, suppress Insurrections and repel Invasions.” The congressional power to call forth the militia may in appropriate cases supplement its broader power to raise armies and provide for the common defense and general welfare, but it does not limit those powers.

The second Militia Clause enhances federal power in three additional ways. First, it authorizes Congress to provide for “organizing, arming and disciplining the Militia.” It is by congressional choice that the available pool of citizens has been formed into organized units. Over the years, Congress has exercised this power in various ways, but its current choice of a dual enlistment system is just as permissible as the 1792 choice to have the members of the militia arm themselves. Second, the Clause authorizes Congress to provide for governing such part of the militia as may be employed in the service of the United States. Surely this authority encompasses continued training while on active duty. Finally, although the appointment of officers “and the Authority of training the Militia” is reserved to the States respectively, that limitation is, in turn, limited by the words “according to the discipline prescribed by the Congress.” If the discipline required for effective service in the Armed Forces of a global power requires training in distant lands, or distant skies, Congress has the authority to provide it. The subordinate authority to perform the actual training prior to active duty in the federal service does not include the right to edit the discipline that Congress may prescribe for Guard members after they are ordered into federal service.

The Governor argues that this interpretation of the Militia Clause has the practical effect of nullifying an important State power that is expressly reserved in the Constitution. We disagree. It merely recognizes the supremacy of federal power in the area of military affairs. In light of the Constitution’s more general plan for providing for the common defense, the powers allowed to the States by existing statutes are significant. As has already been mentioned, several constitutional provisions commit matters of foreign policy and military affairs to the exclusive control of the National Government. This Court in Tarble’s Case (1871) had occasion to observe that the constitutional allocation of powers in this realm gave rise to a presumption that federal control over the Armed Forces was exclusive. Were it not for the Militia Clauses, it might be possible to argue on like grounds that the constitutional allocation of powers precluded the formation of organized state militia. The Militia Clauses, however, subordinate any such structural inferences to an express permission while also subjecting State militia to express federal limitations.

We thus conclude that the Montgomery Amendment is not inconsistent with the Militia Clauses. In so doing, we of course do not pass upon the relative virtues of the various political choices that have frequently altered the relationship between the federal government and the States in the field of military affairs. This case does not raise any question concerning the wisdom of the gubernatorial veto established in 1952, or of its partial repeal in 1986. We merely hold that since the former was not constitutionally compelled, the Montgomery Amendment is constitutionally valid.

*[1] Two clauses of Article I—clauses 15 and 16 of §8—are commonly described as “the Militia Clause” or “The Militia Clauses.” They provide:

“The Congress shall have Power…

“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…”