Perpich v. Department of Defense

PETITIONER: Perpich
RESPONDENT: Department of Defense
LOCATION: Maple Heights High School

DOCKET NO.: 89-542
DECIDED BY: Rehnquist Court (1988-1990)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 496 US 334 (1990)
ARGUED: Mar 27, 1990
DECIDED: Jun 11, 1990

ADVOCATES:
John R. Tunheim - on behalf of the Petitioners
Kenneth W. Starr - on behalf of the Respondent

Facts of the case

Question

Media for Perpich v. Department of Defense

Audio Transcription for Oral Argument - March 27, 1990 in Perpich v. Department of Defense

William H. Rehnquist:

We'll hear argument first this morning in No. 89-542, Rudy Perpich v. Department of Defense.

Mr. Tunheim?

John R. Tunheim:

Thank you, Mr. Chief Justice, and may it please the Court:

This case concerns the constitutionality of the Montgomery Amendment which removes from states the power to withhold consent to foreign training of the National Guard because of objections to location, purpose, type and schedule of that training.

It's codified at Title 10, Section 672(f) and was enacted in November 1986.

The Montgomery Amendment effectively nullifies clause 16, and before I begin, let me just reference the three most relevant constitutional provisions, because they are referenced a lot in my argument.

Article I, Section 8, clause 12 gives Congress the power to raise and support armies, clause 15 gives Congress the power to provide for calling forth the militia to execute the laws of the Union, to suppress insurrections, and to repel invasions, and clause 16 gives Congress 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, but reserving to the states respectively the appointment of the officers and the authority of training the militia according to the discipline prescribed by Congress.

Now, the Montgomery Amendment effectively nullifies clause 16 by removing states' powers to consent.

It permits unlimited Federal authority over training, and leaves no control or authority to the states.

The Montgomery Amendment is unconstitutional because it violates the plain language and meaning of clause 16.

It overturns long settled understandings of the relationship among the clauses of Article I, Section 8, and it upsets a carefully established framework eliminating a fundamental part of the checks and balances as established by the framers.

William H. Rehnquist:

And it is your position, I suppose, that the part of Section 16 that it violates is that that says it is reserving to the states the authority of training the militia according to the discipline prescribed by Congress?

John R. Tunheim:

Yes, Mr. Chief Justice.

Even more extreme than the Montgomery Amendment is--

Sandra Day O'Connor:

Mr. Tunheim?

John R. Tunheim:

--Yes.

Sandra Day O'Connor:

The Montgomery Amendment appears, at least on its face, to apply only to the National Guard of the United States, not the state militia component.

John R. Tunheim:

The National Guard of the United States is essentially the same thing as the National Guard of the states.

Under the dual enlistment concept, yes--

Sandra Day O'Connor:

Well, of course, that's the question, whether, whether they operate as one and the same or differently somehow, at least on its face the amendment appears to apply to the National Guard of the United States.

John R. Tunheim:

--Yes, Justice O'Connor, it does apply to the National Guard of the United States, but are--

Sandra Day O'Connor:

Now, would you tell me whether the President, in this case, ordered the guard units to Honduras for training, or did the President order the National Reserve component to Honduras?

Did he federalize them and send them that way, or was this part of the two-week training program of the state militia?

John R. Tunheim:

--It's part of the two-week training program, but they were federalized, Justice O'Connor, as the National Guard of the United States in the reserve component part of dual enlistment.

But our argument in the case, Justice O'Connor, is that simply by creating the National Guard of the United States you can't simply remove from the National Guard the essential state organization, the constitutional limitations that are in Article I, Section 8.

Sandra Day O'Connor:

But at least the President attempted to articulate the position that they were being federalized and sent there in their capacity as the National Guard of the United States?

John R. Tunheim:

Yes, that's correct.

What's more extreme... yes?

Anthony M. Kennedy:

I take it... I take it you're saying that it's unconstitutional for Congress to divide by statute, as it has done, the National Guard segment of the militia and the so-called unorganized militia?

That is also unconstitutional in your view, I take it?