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Perpich v. Department of Defense
Published online by Cambridge University Press: 27 February 2017
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- Copyright © American Society of International Law 1990
References
1 666 F.Supp. 1319 (D. Minn. 1987).
2 No. 87-5345, slip op. (8th Cir. Dec. 6, 1988). The majority decision is largely restated in the dissent of Judges Heaney and McMillian to the en banc decision, 880 F.2d 11, 13-39 (8th Cir. 1989).
3 880F.2d 11 (8th Cir. 1989).
4 Prior to this en bane judgment, the Supreme Court refused to review a similar appeal from the First Circuit by the Governor of Massachusetts. See Dukakis v. United States Department of Defense, 686 F.Supp. 30 (D. Mass.), aff’d, 859 F.2d 1066 (1st Cir. 1988), cert. denied, 109 S.Ct. 1743(1989).
5 See 132 Cong. Rec. 21,660-63 (1986). By July 1986, the governors of California, Maine and Ohio had refused to permit National Guard participation in training in Honduras. The governors of Massachusetts, Vermont and Washington indicated that if the issue arose, they would deny permission to participate in training in Honduras. Six other governors reserved judgment on a case-by-case basis. The Iowa House of Representatives and the California Senate passed nonbinding resolutions urging their respective governors to withhold consent to such training. See Brief for Appellees at 37-38, Perpich v. Department of Defense, No. 87-5345, slip op. (8th Cir. Dec. 6, 1988).
6 10 U.S.C. §672(b), (d) (1988) (originally enacted in 1952; see note 23 infra).
7 National Defense Authorization Act for Fiscal Year 1987, Pub. L. No. 99-661, §522, 100 Stat. 3871 (codified at 10 U.S.C. §672(f) (1988)); see also 132 Cong. Rec. 21,660-63 (1986).
8 U.S. Const. Art. I, §8, cl. 12.
9 Id., cls. 15, 16.
10 See Hirsch, The Militia Clauses of the Constitution and the National Guard, 56 U. Cin. L. Rev. 919, 924, 943-44 (1988); and United States v. Miller, 307 U.S. 174, 179 (1939) (“The sentiment of the time [of the ratification of the Constitution] strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia—civilians primarily, soldiers on occasion”).
11 See Perpich, 110 S.Ct. 2418, 2422-23; and 880 F.2d at 19-23 (Heaney, J., dissenting).
12 HOS.Ct. at 2422.
13 Act of Jan. 21, 1903, ch. 196, 32 Stat. 775.
14 See 10 U.S.C. §311 (1988); 32 U.S.C. §313 (1988). An individual who is both under 64 years of age and a former member of the regular armed forces also is eligible for original enlistment. Id.
15 Ch. 134, 39 Stat. 166.
16 See 32 U.S.C. §304 (1988).
17 Sec. 111, 39 Stat, at 211.
18 Selective Draft Law Cases, 245 U.S. 366, 377 (1918); see also Cox v. Wood, 247 U.S. 3, 6 (1918) (the plenary power to raise armies was “not qualified or restricted by the provisions of the militia clause”).
19 Ch. 87, 48 Stat. 153.
20 See 10 U.S.C. §§591(a), 3261, 8261 (1988).
21 See 10 U.S.C. §§3079, 8079 (1988).
22 32 U.S.C. §325 (1988).
23 Armed Forces Reserve Act of 1952, ch. 608, §233(c), (d), 66 Stat. 481, 490 (codified as amended at 10 U.S.C. §672(b), (d) (1988)).
24 See Perpich, 880 F.2d at 33 n.26 (Heaney, J., dissenting).
25 110 S.Ct. at 2426.
26 M. at 2427.
27 Id. at 2428.
28 Id.
29 Id.
30 69 Stat. 686 (codified as amended at 32 U.S.C. § 109(c) (1988)). At least 30 states have enacted statutes providing for the organization of such defense forces. It has been reported that at least 10,000 individuals are enrolled in these organizations. See Brief for Respondents at 7-8, Perpich, 110 S.Ct. 2418.
31 110 S.Ct. at 2429.
32 W. Shakespeare, Henry V, act 1, sc. 2, lines 33-95, in The Oxford Shakespeare 472 (1978). At the close of Solicitor General Kenneth W. Starr’s oral argument before the Supreme Court in Perpich v. Department of Defense, Justice Blackmun leaned forward and remarked:
General Starr, as an old buck private in the rear rank of a Minnesota Guard, I can say that not a one of us in the rear rank would understand this argument today. [Laughter] We—we knew that we had to go to Camp Ripley—you won’t know where that is, but Mr. Tunheim [counsel for petitioner] will. Or to, indeed, Lake City. But the thought of this dichotomy would be too much for the ignoramuses, such as I, that were in that rear rank.
Official Transcript, Proceedings before the Supreme Court of the United States, Perpich v. Department of Defense, Case No. 89-542, at 49 (Mar. 27, 1990, Alderson Reporting Co., Washington, D.C.).
33 The Conferees reiterate that under [the Montgomery Amendment], the governor still will have the authority to block the training if he or she thinks the guardsmen are needed at home for local emergencies. The conferees intend that nothing about the words “location, purpose, type, and schedule” should constrain a governor in according appropriate priority to a state or local emergency, such as a flood or other natural disaster.
H.R. Conf. Rep. NO. 1001, 99th Cong., 2d Sess. 475 (1986), reprinted in 1986 U.S. Code Cong. & Admin. News 6413, 6534.
34 See 32 U.S.C. §109(e) (1988). The dual enlistment system requires concurrent enlistment in both the state National Guard and the NGUS. The Court offers the fragile argument that 10 U.S.C. §§331-333 possibly subject state defense forces to call for federal active service. See 110 S.Ct. at 2429 n.25. But these provisions of federal law, which authorize federal use of state militia to suppress insurrection or to enforce federal laws or to suppress rebellion against the authority of the United States, do not address all of the circumstances (such as invasions) covered by the first Militia Clause. They were enacted during and immediately after the Civil War, when neither the National Guard nor state defense forces existed. In recent decades, the federal Government has relied exclusively on state and federal National Guard units when resorting to its authority under these provisions. See 10 U.S.C. §§331-333 (1988).
35 The purpose of the Militia Clauses is well tended by title 32 of the U.S. Code, which sets forth the federal organization, arming and discipline of the state National Guard. With the exception of 32 U.S.C. § 109, which authorizes creation of state defense forces independent of the state National Guard, none of these carefully drawn provisions govern state defense forces.
36 llO S.Ct. at 2428.
37 See Perpich, 880 F.2d at 21 n. 12 (Heaney, J., dissenting).
38 These include 10 U.S.C. §§269(g), 270(c), 591(a), 672, 3259, 3352(a), 3364(g)&(i), 3370, 3390, 8259, 8352, and 8376(b) (1988).
39 See United States v. Peel, 4 M J. 28, 29 (C.M.A. 1977) (the gubernatorial consent procedure “has constitutional underpinnings in Article I, §8, of the Constitution of the United States”); accord United States v. Self, 13 M.J. 132, 135(C.M.A. 1982); United States v. Hudson, 5 M.J. 413, 418 (C.M.A. 1978).
40 See Perpich, 880 F.2d at 20 (Heaney, J., dissenting) (“[States rights] delegates voiced fears that powerful federal authority over the state militia would, like the existence of a large standing army, lead to military abuses by the new government”).
41 See id. at 33-35. During hearings on earlier legislation that was never reported out of the Subcommittee on Manpower and Personnel of the Senate Committee on Armed Services, 23 state governors objected to abolishing the consent requirement. Among them was New Hampshire Governor John H. Sununu, who would become Chief of Staff to President George Bush in 1989. Sununu stated: “I want to go on record as opposed to … any legislative attempt to remove the authority or control of the National Guard from the states. This legislative initiative is directly contrary to the language and intent of the U.S. Constitution.” Id. at 34.
One month after Senate inaction, Rep. Montgomery introduced on the House floor his amendment to the Defense Authorization Act of 1987. No committee hearings had been held on it. During only 10 minutes of debate, the constitutionality of the amendment was questioned, in response to which Rep. Montgomery threatened to cut off federal funding to states whose governors withheld consent to overseas training assignments. The House then approved the amendment 261-159. Id. at 34-35. The amendment was accepted by the Senate conferees with the proviso that gubernatorial consent could be withheld to handle local emergencies. See note 33 supra.
42 This assessment denies neither the need to train the NGUS overseas to ensure its capabilities in an increasingly complex and unpredictable world (reaffirmed by the Persian Gulf crisis of 1990), nor the fact that only in rare instances would governors actually withhold consent and forgo such training opportunities for their state National Guard units. But the Court left in the hands of Congress the clear authority to restore a more constitutionally credible balance of power between states and the federal Government.