If a governor disapproves of an overseas National Guard
training deployment, can he prevent his state's Guard units from participating?
Or must he yield to the priorities established by the Defense Department?
That question has preoccupied the Guard and governors alike
throughout three years of intense political and legal conflict. The stakes in
this battle are high. The issue, as it was recently put by Maj. Gen. Philip G.
Killey, Director of the Air National Guard, is nothing less than "the
credibility of the National Guard."
Congress and the Pentagon have been trying to deal with the
state role in decisions about Guard training for a number of years. In 1986,
Congress passed a law calling for Washington to have the final say over
deployment of National Guard troops for training outside the US.
That, however, was not the end of the matter. Two
states—Minnesota and Massachusetts—challenged the federal law in court, seeking
to overturn it. Massachusetts has lost its case outright, with the US Supreme
Court last April refusing to hear an appeal from the First Circuit Court of
Appeals in Boston. A broader suit brought by Minnesota, however, was still
pending as of late summer. Even though the Eighth Circuit Court of Appeals in
June ruled against Minnesota and in favor of the federal government, the
Supreme Court has yet to issue a definitive ruling. Unless and until it does,
say experts, the matter will remain unresolved.
The controversy over control of the National Guard stems
from the so-called militia clause of the Constitution. It calls for the
federal government to organize, arm, and discipline Guard members and employ
them in service to the US. Authority to train Guard members, however, is
reserved for the states.
Training in Central
The issue emerged during 198586. The first instance was the
refusal of California to send a small (company-size) armored task force to an
exercise in Honduras. The mission was shifted to Texas, where Gov. Mark White
agreed to deploy Texas National Guard members to Honduras. As the US Southern
Command increased opportunities for participation by the Guard in road-building
and humanitarian training missions, a number of governors expressed
Arizona Gov. Bruce Babbitt then stated his opposition to
having the Arizona National Guard train in Honduras because the training, in
his view, was "part and parcel of a policy" to draw the United States
into the war in Nicaragua. But he did not restrain the deployment of an Arizona
Army Guard military police company—and even approved an extension for the
unit. Vermont Gov. Madeleine Kunin claimed that sending the Guard to Honduras
was "a show of force" and "a backdoor escalation of US military
action." The governors of Kansas, Washington, Ohio, and Massachusetts also
issued statements reflecting concern for the safety of personnel who might be
assigned for training in Central America.
When Gov. Joseph E. Brennan of Maine actually refused to
send a detachment of forty-five Guard members early in 1986, the issue became
a real one.
Governor Brennan's actions and the other governors' words
raised concern in Washington. At an April 22, 1986, congressional hearing, Rep.
Bill Chappell of Florida asked James Webb, the Assistant Secretary of Defense
for Reserve Affairs, if he was concerned about the new assertiveness of the
governors. Mr. Webb responded that "present policy" permitted Guard
activities to be manipulated at the local level and that options were being
considered to either remedy the situation or review the missions being given
to the Guard.
Under a provision of the Armed Forces Reserve Act of 1952,
governors had the authority to approve or turn down training outside the continental
United States. For thirty-three years, this approval had been routinely granted
when requested. Now, however, the arrangement seemed to be in danger.
A Plan to Curb the
Speculation was widespread that the Pentagon wanted new
legislation to curb the ability of governors to influence where members of the
National Guard might train. Even so, Secretary of Defense Caspar Weinberger claimed
that the Pentagon had no plan to seek new legislation. He promised that DoD
would conduct "a careful, thorough, methodical, and orderly review."
He also noted that, "contrary to reports by the media, [Mr. Webb] did not
recommend that remedial legislation."
In mid-June, however, Republican Sens. Phil Gramm of Texas
and Pete Wilson of California cosponsored new and far more stringent
legislation. In language proposed for inclusion in the Fiscal 1987 Defense
Authorization Bill, they sought to amend the existing law in a crucial way: All
Guardsmen sent to train outside the US were to be placed in federal active-duty
Guard annual training had been routinely held under Title
32, which puts the Guard in federal status but retains it under state control.
Guard members in Title 32 status, for example, do not count against the active
service strength. With the Guard in full federal status, a governor's okay
would not be needed. The senators' proposal suggested outright elimination of
the need for gubernatorial consent.
The proposal failed to generate immediate support in the
Manpower and Personnel Subcommittee, which Wilson chaired at the time. The
issue was deemed too critical—or, perhaps, too sensitive—to be acted on without
further review and hearings.
Such a hearing was held on July 15. It turned out to be a
bleak day for the reputation of the National Guard. The Guard found itself assailed
by witnesses who challenged its credibility as a partner in the total force.
The arguments focused not on training, but on whether the Guard could be
counted by the nation's leaders as a reliable mobilization entity.
The centerpiece of the hearing was the unveiling of an
argument that the militia clause of the Constitution had been superseded by
the army clause. The latter empowers Congress to raise armies. The argument
was made that, because the 1933 National Defense Act had created the component
known as "National Guard of the United States," this was now the
prevailing legal authority. Thus, this argument ran, the militia clause no
longer had any serious effect with respect to control of the Guard.
In light of all these factors, Rep. G. V. "Sonny"
Montgomery (D-Miss.) came to the conclusion that a simple fix could be devised.
His objectives were to ensure that the Guard would continue to train in
accordance with Army and Air Force readiness requirements and to accomplish
this goal within the framework of the militia clause of the Constitution.
In late summer 1986, Representative Montgomery proposed a
measure, later known as the "Montgomery Amendment," which sharply
defined a limitation on the veto authority of the governors. His proposal was
aimed at prohibiting any gubernatorial objection to overseas training based on
objection to location or purpose of the training. It passed both chambers.
There was considerable consternation in statehouses around
the nation. Confusion and frustration were evident at the annual meeting of
the National Governors' Association in Hilton Head, S. C., in the waning days
of August. Hanging over all was the suspicion that a move was under way to take
peacetime command of the National Guard away from the governors.
The operative portion of the Montgomery Amendment reads
thus: "The consent of a Governor
may not be withheld. . . 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."
A Challenge in
The measure was signed into law in October 1986. However,
the idea that passage of the Montgomery Amendment had put the basic issue to
bed was soon dispelled. Opposition came right away from Minnesota Gov. Rudy
Minnesota's Attorney General, Hubert H. Humphrey III,
advised his governor on December 17, 1986, that he believed that "a
challenge to the law in the federal court is probably the only manner in which
its validity can be finally resolved." Governor Perpich contacted fellow
governors to test support for an assault by Minnesota on the Montgomery
Amendment. In a letter to Gov. Bill Clinton of Arkansas, he suggested that the
governors act as a group in challenging the new federal law. Despite Governor
Perpich's suggestions, there were few takers at the time.
Governor Perpich filed his lawsuit against the Department
of Defense, the services, and the National Guard Bureau on January 22, 1987,
in Minnesota federal court. The date for a trial on the merits was set for June
15 in St. Paul. In late May, Iowa and Massachusetts took the lead in
proclaiming that twelve more states had joined Minnesota's legal action.
Neutral observers studied with astonishment the list of
states in support of Governor Perpich. Listed as joining the suit were Maine,
Massachusetts, Rhode Island, Iowa, Vermont, Arkansas, Colorado, Ohio,
Delaware, Kansas, Louisiana, and Hawaii. A little investigation, however,
showed that some state attorneys general had acted prematurely and that, in a
few cases, governors had not even been consulted. A number of governors acted
quickly to withdraw their states from the Perpich action. When the dust
settled, the hard-core support for Governor Perpich came down to only five
states: Massachusetts, Maine, Vermont, Ohio, and Colorado. At the same time,
twenty-three governors rallied behind a brief, filed by the National Guard
Association of the US, supporting the new law.
Following arguments in US District Court in St. Paul, US
District Judge Donald Alsop issued his decision on August 3, 1987. He dismissed
the Perpich case in its entirety. The Montgomery Amendment, he held, easily
passed constitutional muster.
The timing of the decision was extremely important. At the
time, many in Congress had begun to doubt the constitutionality of the
Montgomery Amendment. Some questioned whether it was possible to enforce the
law, even if it were constitutional. Senators had begun considering legislation
that would restore full authority to the governors, but make it possible for
the President to send National Guard troops overseas for training if he could
certify that it was in the national interest. This putative plan of action,
however, was abandoned.
Undeterred, Minnesota moved quickly to file its motion in
appeal and requested an expedited hearing. This was granted, and the Eighth US
Circuit Court of Appeals put the matter on the docket for hearing on February
9, 1988. The "expedited hearing" took place before a three-judge
panel in the St. Paul Court, and the judges took the matter under advisement.
Meanwhile, the situation was made more complex by the
actions of a Democrat then little-known outside of Massachusetts—Gov. Michael
Dukakis. Governor Dukakis's evident anxiety about the lack of legal progress in
Minnesota caused him to take direct legal action against Washington to prevent
a thirteen-member Guard unit from deploying to Central America.
Just before the hearing in St. Paul, Massachusetts Attorney
General James M. Shannon filed suit in US District Court in Boston. He stated
that the Governor wanted to block the forthcoming training mission of the 65th
Public Affairs Detachment, Massachusetts Army National Guard, to Central America.
Shannon further noted that, "in the event that other Massachusetts
National Guard units are called to active duty for training in Central America,
the Governor intends to withhold consent if he objects to the location,
purpose, type or schedule of such training."
To get a decision in his case, Governor Dukakis would not
have to wait as long as Governor Perpich. Less than one month after arguments
were heard on April 9, 1988, US District Judge Robert Keeton announced his
ruling: The Montgomery Amendment was valid, and Governor Dukakis could not
block the deployment.
The judge wrote: "The Militia Clause retains meaning
and purpose both (a) as it limits congressional power over the militia when it
is not on active duty as a part of the army and (b) as it enables Congress to
exercise more sparingly its broad army power. This blend of limiting and
enabling functions serves the framers' intent that Congress have the power to
provide for the defense of the nation while maintaining only a small standing
army. The Montgomery Amendment is a valid exercise of Congress's power under
the Armies Clause and does not violate the Militia Clause."
Governor Dukakis, though by that time busy with presidential
campaigning, had his attorney general file an appeal. By the time the appeal
was heard, the 65th Public Affairs Detachment had long since completed its
training mission in Central America, but the underlying issue remained alive.
On October 4, the First US Circuit Court of Appeals in Boston announced that
appellate justices had voted unanimously to uphold Judge Keeton's trial-court
Heading for the
With opponents of the Montgomery Amendment being routed repeatedly
in courtrooms, it seemed that the issue would speedily be resolved. This,
however, was not to be. Matters were thrown into disarray with the decision,
on December 6, 1988, of another federal appeals court. A three-judge panel of
the Eighth US Circuit Court of Appeals, headed by US District Judge Gerald
Heaney, announced its decision in the Perpich case. By a two-to-one vote, the
panel backed the Minnesota governor against the new law.
The appellate court's reversal of the decision by Judge
Alsop confronted the Guard with contradictory results in two different
jurisdictions. This might lead to a drawn-out battle that would almost inevitably
have to find its way to the Supreme Court.
Government attorneys moved quickly for a rehearing before
the full appellate court, with all justices participating in the decision. Meanwhile,
in Boston, Massachusetts Attorney General Shannon sought to get his governor's
views before the US Supreme Court with a writ of certiorari asking the high
court to review the ruling by the First Circuit Court.
With the two legal cases proceeding on these two different
tracks, the issue of training the National Guard outside the continental US
dragged on into a third year of controversy. On February 16, a panel of nine
judges of the Eighth Circuit Court convened in St. Paul and listened intently
to the arguments. Again there would be long months of silence from the St. Paul
The first signs of a definitive judgment in the matter came
this past spring. On April 16, 1989, the Supreme Court announced its decision
not to disturb the findings of other courts in the Massachusetts case.
The Supreme Court, though it did not issue an opinion of its
own, simply chose not to review Governor Dukakis's defeat. This was a blow to
advocates of the Dukakis-Perpich position.
Then, on June 28, they suffered another major courtroom
setback. From St. Louis, headquarters of the Eighth Circuit Court, came the announcement
that the full appeals panel had voted seven to two to overturn the three-judge
panel's decision and thus had restored the judgment of Judge Alsop. Once more,
a court in the Minnesota case held that the states' authority to train their
militias did not inhibit the power of Congress to provide for active-duty
training of the National Guard of the United States.
Minnesota officials, after the decision, held open the
possibility of carrying their case all the way to the Supreme Court, where it
would be likely to receive a full review. Whether there will be a further challenge
is uncertain. Even if Minnesota chooses not to take this step, the matter
seems certain to remain a significant legal issue until the high court issues a
In the main, Guard members believe that this dispute could
have, and should have, been resolved without recourse to the bitter public
debate that ensued. Events made it impossible for the system to fix itself,
and so the need arose for a legislative measure such as the one embodied in the
With the ruling on the Minnesota case, it appears that the
dispute is ending. The author of the amendment, Representative Montgomery, had
this comment on the events:
"I hope this ruling will get the National Guard out of
the courtroom and back to the business of training. Having the ability to go
overseas will allow the Guard the chance to offer its personnel the best
training available, so it can continue to maintain the highest possible level
Maj. Gen. Bruce Jacobs, NGUS (Ret.), is Executive Director
of the Historical Society of the Militia and the National Guard and Assistant
Executive Director of the National Guard Association. He is the publisher of
National Guard Magazine and the author of a number of books. The views
expressed in this article are not necessarily those of the National Guard
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