component of the National Guard, i. e., the United States National Guard.

Amendment), is unconstitutional. However, Petitioners fail to acknowledge that the state's authority to train the National Guard is limited in that it must be in accordance to the "discipline prescribed by Congress." Furthermore, the National Guard has a dual status— it is not only a state "militia"; it is also an integral, functioning part of the U.S. Army. When the Guard is ordered into federal service, Congress is exercising its constitutionally assigned power "to raise and support armies." This power was understood by the Framers as well as by this Court to be paramount over a state's training authority over its militia, which can never be used to restrict the military and foreign policies of the federal government.

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I. Introduction.

Guard from being sent to Honduras on a training mission. Specifically, they sought a declaration that the Montgomery Amendment, 10 U.S.C. § 672(f), violates the Militia Training Clause of the United States Constitution (art. I, § 8, cl. 16) 1 insofar as that Amendment restricts the authority of a state governor to withhold consent to training, outside the United States, of members of a state National Guard. The Militia Training Clause authorizes Congress: "To provide for organizing, arming and disciplining the Militia and for governing such part of them as may be 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." Minnesota so argues even though it admits, as it must, that every member of a state National Guard is also a member of the United States National Guard. 2

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II. The Judiciary Owes the Greatest Possible Deference to Congressional Judgments Concerning Natimal Defense and Military Affairs.

[I]t is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military

force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches.

"In general, disputes are to be resolved through political process (rather than in the courts) where in essence they are disputes as to whether particular calls of units of the militia to temporary active duty, and the location to which such units are sent during such a period, do or do not serve national interests. Absent proof that a body to whom the responsibility and power for deciding such disputes has exceeded constitutional bounds in some way, courts cannot property intrude." id. at 38.

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III. The Montgomery Amendment is a Proper Exercise of Congressional Power Under the Militia Clause of the Constitution.

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. (Emphasis added).

Congress the authority to regulate courts martial for the state militia. The author is not engaged in a discussion of whether the meaning of the word "discipline" in the 1790s encompassed other forms of training, beyond the manual of arms, such as field maneuvers. The author concludes that, despite the fact that the early militia acts used "discipline" to mean drill, the word had a more expansive meaning and Congress has the power to regulate courts martial as part of its authority to prescribe "discipline." Furthermore, the article concludes that was the understanding of the Founders. Hence, the bottom line is that the author interprets the word "discipline" to mean more than merely drill.

authorize the participation of the organized militia in the encampments and maneuvers of the Regular Army." The report also calls upon the Secretary of War to make annual estimates of the cost, so that "the authority of Congress to regulate the matter is assured". The report goes to call for "a certain amount of drill and a certain amount of instruction" of the militia. The report lead to the passage of the Dick Act of Jan. 21, 1903, 32 Stat. 775, which was a significant milestone on the road to the modem National Guard (see discussion, infra, at 22). There is nothing in the report which limits Congressional authority to the "manual of arms" or "drill" when prescribing "discipline." Rather it supports the proposition that "discipline" includes a wide variety of training.

a home-defense force, composed of most ablebodied men. This force, though armed, was largely untrained, and its deficiencies were the subject of bitter complaint. Even before 1776 had run its course, Washington was warning Congress that 'To place any dependence upon Militia, is, assuredly, resting upon a broken staff'. . . . [M]ilitia came to mean undisciplined and badly regulated forces. Belief in citizen soldiers became inextricably intertwined with an

undying faith in the martial prowess of untrained men led by political generals. Wiener, supra, at 182-3.

Precisely because of the sorry state of the militia, the Framers— in clause 16 of Section 8 or Article I— authorized Congress

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.

In addition, Congress was authorized "to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions" (clause 15).

would neglect the militia. 6 Still others, according to Alexander Hamilton, believed the provision would have the salutary effect of insuring that officers would be men "who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits, and interests." The Federalist Papers, (Mentor, 1961), No. 29 (at 186). Such men would be sure to resist any attempt by the federal government to use them "for the purpose of riveting the chains of slavery upon a part of their countrymen. . . ." Id.

This power in the U-S as explained is making the States drill-sergeants. He had as lief let

the Citizens of Massachusetts be disarmed, as to take the command from the states and subject them to the General Legislature. It would be regarded as a system of Despotism. Id. at 385 (Emphasis added.)

[N]o governor has said he opposes overseas deployment training— all have said they wholeheartedly believe in it and understand and support the need for it. (Pet. brief, at 45).

the Congress extensive powers with respect to the training of the National Guard. Past precedents of this Court also support that view. The Governor and state of Minnesota conveniently ignore the case of Gilligan v. Morgan, 413 U.S. 1 (1973), which made clear that the Congress has an important role in the training of the National Guard.

the national security interests of the entire nation. The Montgomery Amendment permits the state governors to withhold troops from training exercises if they are needed for a domestic emergency within the state.

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IV. The Army Clause Also Gives the Congress the Authority to Restrict the State Governors from Exercising a Veto Power Over the Training of the National Guard.

Framers concerns about standing armies. 7 It was thought that requiring Congress to reconsider its funding of troops biennially would be a wholesome check on an army that might otherwise grow ever larger, more costly, and more powerful. 8

to exist without limitation, because it is impossible to foresee or to define the extent and variety of national exigencies, and the correspondent extent and variety of the means which may be necessary to satisfy them. The Federalist Papers, supra No. 23 (at 153-Hamilton) (emphasis in original)

Once it is decided that "there ought to be a federal government intrusted with the care of the common defense.. . it will follow that that government ought to be clothed with all the powers requisite to complete execution of its trust." Id. at 153-4. Indeed, "there can be no limitation of that authority which is to provide for the defense . . . in any matter essential to the formation, direction, or support of the NATIONAL

FORCES." Id. at 154 (emphasis and capitalization in original). Such a limitation would be "both unwise and dangerous." Id. at 156. It was in order to enable Congress to implement these powers that the framers assigned Congress the additional power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.” 9 9 U.S. Const. art. I, § 8, cl. 18.

Is there not a manifest inconsistency in devolving upon the federal government the care of the general defense and leaving in the state governments the effective powers by which it is to be provided for?. . Have we not had unequivocal experience of its effects in the course of the revolution which we have just achieved? 10

The Constitutional provisions discussed above are the incontrovertible proof that the Framers— and the American people— answered Hamilton’s questions with a resounding "Yes."

establishment suited to the requirements of the United States as a world power." One aspect of this tansformation involved the militia, which "was— one hesitates to say reorganized really— organized." The need for such organization was enormous, for, as President Theodore Roosevelt told Congress in 1901, "Our militia law is obsolete and worthless." "Annual Message to Congress,” Dec. 3, 1901, quoted in Wiener, supra, at 194, n. 71.

service abroad. 11 As one commentator has noted, "The Act rests on the principle that the right of the states to maintain a militia is always subordinate to the power of Congress 'to raise and support armies'. . ." Corwin, The Constitution and What it Means Today (14th rev. ed., 1978), at 118. 12 That principle is more than sufficient for this Court to uphold the constitutionality of the Montgomery Amendment. Congress clearly has the power to prevent the governors from vetoing training requirements of the U.S. National Guard.

Clause. The "fallacy of the argument" made by the Petitioners in that case is precisely the fallacy of the argument made by Petitioners in this case, i. e., the fallacy of "confounding the constitutional provisions concerning the militia with that conferring upon Congress the power to raise armies. It treats them as one while they are different.” Id. at 382.

want of power . . . to raise an army. . . . In supplying the power it was manifestly intended to give it all and leave none to the states, since besides the delegation to Congress of authority to raise armies the Constitution prohibited the states, without the consent of Congress, from keeping troops in time of peace or engaging in war. Id. at 381.

The Constitution vested Congress with the discretion as to whether, when, and to what degree it would exercise its power to raise armies; to the states was left "the control of the militia to the extent that such control was not taken away by the exercise by Congress of its power to raise armies." Id. at 382-3. That power "was not required to be exerted to its full limit but only as in the discretion of Congress it was deemed the public interest required. . . ." Id. at 383-4. See also Cox v. Wood, 247 U.S. 3 (1918).

constituting it as a reserve component of the Army, to be known as the National Guard of the United States. The purpose of the Act was to avoid having to draft Guardsmen in order for them to enter federal service; they could now simply be ordered into federal service as units, and upon release from that service they would revert to their National Guard (state) status. 13

As a result of the 1933 Act,

the National Guard has today a dual status and every Guardsman is a reservist as well as a miitiaman. . . . [T]he 1933 Act proved conclusively that a well-regulated militia is impossible of attainment under the militia clause, and can be organized only by resort to the plenary and untrammeled powers under the army clause. Weiner, supra, at 208-209.

forth in clause 15) and Johnson v. Powell, 414 F.2d 1060, 1064 (5th Cir. 1969) (dual enlistment system "was a proper exercise of power necessary and proper to the raising and supporting of armies"). 14

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V. The Montgomery Amendment Is Necessary in Order to Insure that the United States Government Speaks With One Voice.

their control over the state militias, to serve as a check on the abuse of federal military power." Petitioners go on to conclude that "if the states' reserved authority for training indirectly in some way affects foreign policy, it is a permissible effect." The first claim is taking the founders' concerns out of context and the second demonstrates the danger of Petitioners' position. The Founders were concerned that a powerful standing army might run roughshod over the citizens of the states. That concern of the founders arose out of their understanding of the use of armies in Europe. That is not the concern of Governor Perpich. Governor Perpich's attempt to play a role in foreign policy by use of a veto of training would not protect the citizens of Minnesota from a domestic threat from the U.S. Army, instead, Gov. Perpich's veto of training would run roughshod over the rights and responsibilities of the Federal Government in the areas of National Defense and Foreign Affairs.

future war, and thus deprive the Government of the United States of some of its most efficient legitimate means of prosecuting such a war with vigor and effect". S. Rep. No. 142, 13th Cong., 3d Sess. (1815).

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Respectfully submitted,

Daniel J. Popeo
Paul D. Kamenar
John C. Scully (Counsel of Record)
WASHINGTON LEGAL FOUNDATION

Date: March 6, 1990

Notes