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

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?

John R. Tunheim:

No, it’s not unconstitutional to take the militia and organize it, which is what clause 16 gives Congress the power to do.

Anthony M. Kennedy:

Well, but Section 311 of Title 10 says that the classes of the militia are the organized militia, which consist of the National Guard, and the unorganized militia, which is not the National Guard.

So you have to say that that also is unconstitutional, I take it, to prevail?

John R. Tunheim:

Justice Kennedy, I wouldn’t agree that we would have to say that.

The unorganized militia is really nothing.

It is a body, a pool of individuals who are able-bodied and able to perform military service if either drafted into a federal army, or if called into an organized militia.

It’s the organized militia that can be called into the federal service, and that is the National Guard.

Harry A. Blackmun:

The unorganized, you do not have in Minnesota?

John R. Tunheim:

Well, the unorganized militia by statute exists everywhere, in states and under federal law, but it really is… is nothing.

It’s just a pool of eligible individuals, and that’s all it is.

It doesn’t, it’s not armed, it’s not trained, and it’s not part of the fighting force at all.

Antonin Scalia:

There’s nothing in the nature of things that requires it to be that way, I suppose.

I mean, if the Governor wants to be able to prohibit his military force from training abroad, or wants to be able to direct it in all respects at all times, I suppose that he could expend the money to make the unorganized militia a full-fledged fighting force, buy them tanks and planes, which now the Federal Government supplies.

John R. Tunheim:

Well, Justice Scalia, currently under federal law there’s no authority for a state to keep an organized militia, other than the National Guard, and the National Guard must be federally recognized, so there really is not an alternative for states.

It’s a choice between accepting the federal funding and participating as the National Guard or not having an organized militia.

William H. Rehnquist:

Don’t you think the… it seems to me a less extreme application of the militia clause of the Constitution to say that it reserves to the states the right to draft able-bodied people and call them the state guard, if you will, than the contention that you’re construing… the construction you’re contending for it?

John R. Tunheim:

The National Guard is the organized militia.

It is–

William H. Rehnquist:

Well, but I mean supposing the Governor wants to have a militia there in Minnesota to put down disturbances 365 days a year.

Is there any provision of existing law that would prevent him, or the Minnesota legislature, from passing an act creating a state guard, drafting people into it and making them available?

John R. Tunheim:

–Federal law currently does not permit states to maintain an organized militia, other than the federally recognized National Guard.

That’s the requirement of federal law at this time.

Antonin Scalia:

What do you mean by organized militia?

I mean, you’re talking about it as though you can’t have tanks if you’re an organized… if you’re an unorganized… is the term defined, “unorganized militia”?

John R. Tunheim:

Unorganized… the unorganized militia is defined under federal law, and I think the laws of most states.

It’s simply defined as every able-bodied person between the ages of 18 and 45.

It’s a pool of individuals that’s available for military service at some point in time, but they are not trained.

They are not part of an organized militia in any sense.

William H. Rehnquist:

Is there some provision in the law that would prevent the State of Minnesota from setting out to train those people?

John R. Tunheim:

There’s a provision of federal law that says that states may not maintain an organized militia, other than the National Guard.

John R. Tunheim:

It’s… the National Guard is the organized militia.

William H. Rehnquist:

But what if the states were to draw on this unorganized militia?

Would that violate the federal law, do you think?

John R. Tunheim:

I think it would, because that would be organizing the unorganized militia, and federal law says that you cannot keep an organized militia, other than the National Guard.

Antonin Scalia:

Define the term “organized”.

I mean, I think we’re playing with words here.

It seems to me all the federal statute says is that a state can have two kinds of militia, one which we’ll call the “organized militia”, can be called up and it’s the United States National Guard, and the other, if the state wants to have another one, the states can do with what they want.

But is there any federal definition of “organized”?

John R. Tunheim:

There… there is a federal definition in federal law.

The organized militia means the National Guard.

It is defined as the National Guard.

Antonin Scalia:

Well, if that’s all it means, then you can create one that isn’t the National Guard, and that will be the unorganized militia.

John R. Tunheim:

But there’s another provision of federal law that says you cannot keep an organized militia other than the National Guard, Justice Scalia, or something called state defense forces, which are not militia, they’re not defined as militia, they can’t be called forth into the federal service, they can’t be paid, and they simply are not an organized militia under the–

William H. Rehnquist:

But they can’t be paid by the federal government?

John R. Tunheim:

–That’s correct.

William H. Rehnquist:

Well, but what’s wrong with the State of Minnesota paying them if they want to have them serve the purposes of the State of Minnesota?

John R. Tunheim:

Because the militia under the Constitution can be called forth into the federal service.

That’s an essential element of the definition of “militia” in the Constitution as understood by the framers.

And the defense forces by federal law cannot be called forth into the federal service.

They can be used only within the borders of the states, and as a practical matter they… they simply don’t exist.

They were created to… to… to help within states during World War II when National Guard members were in the federal service for the duration of the war.

William H. Rehnquist:

But… but they don’t exist, I… I suggest to you because the states haven’t chosen to call them into existence.

What… Mr. Tunheim, what do you make of footnote 5 in the Solicitor General’s plea where he says 24 states have statutes providing for a state defense force or a state guard that is separate from the National Guard, listing Minnesota law appears to recognize a state guard in addition to the National Guard, citing the statute?

I think these later questions have all been directed toward this kind of thing, and you keep turning around to speaking of militia.

What do you make of footnote 5?

John R. Tunheim:

Well, certainly there exists statutory authority in each of these states for creation of something called a defense force, but it’s carefully not described as an organized militia in any sense–

Harry A. Blackmun:

This is what I meant by my part of the question that Minnesota hasn’s chosen to… to go along this line yet.

John R. Tunheim:

–The… the provisions in Minnesota law allow for creation of this home defense force, and it… it was used during World War II.

It’s not currently used at all, even though the provisions remain on the books.

But again, the defense forces are carefully referred to as not militia because that… that constitutes a different definition within the Constitution.

John R. Tunheim:

It calls into play the requirements of the Constitution, and… and it really… they have carefully not identified the defense forces as organized militia because of that.

Antonin Scalia:

Oh, I don’t think they are or are not a militia simply because Minnesota chooses to call them or not to call them a militia.

I mean, a militia is a militia.

Surely by simply not giving them a name Minnesota doesn’t deprive them of that character.

John R. Tunheim:

Justice Scalia, it is federal law that doesn’t define these home defense forces as organized militia.

Federal law identifies “organized”, right.

Antonin Scalia:

But they can be militia but not organized militia.

And certainly, organized really doesn’t mean that they have no organization because, as you say, even Minnesota in World War II had a home guard which was, I assume, organized.

They had officers and subordinates and so forth?

John R. Tunheim:

It was, but it wasn’t militia in the sense–

Antonin Scalia:

So it was organized in some sense.

John R. Tunheim:

–It… it was organized by the state, but it wasn’t militia in the sense given to it by the Constitution which allows the militia of the states to be called into the federal service, and this is where the National Guard has come from.

The National Guard was organized out of the state militia, and our argument is that you simply cannot take the Constitutional limitations that come along with the National Guard and take them away simply by calling them a different name.

That’s the essence of–

Anthony M. Kennedy:

Are you questioning the constitutionality of the dual enlistment system?

John R. Tunheim:

–We are not, Justice Kennedy.

The dual enlistment system, properly interpreted, is… is a… is useful and, I think, constitutional.

What we are challenging is the use of dual enlistment to avoid the militia clause limitations.

The… when dual enlistments were created–

Anthony M. Kennedy:

Well, it’s rather odd to say that Congress has the authority, as you just conceded, to have dual enlistment and then not permit the federal government to make that choice an effective one and to use all of its powers to make sure that the dual enlistment system works.

John R. Tunheim:

–Well, I think the answer to that lies in the purpose of the dual enlistment system, Justice Kennedy.

It was created in 1933 for… for one particular reason, and that was so that the… that National Guard units as trained units could be federalized quickly in case of an emergency or wartime situation.

The problem in World War I was that… that the National Guard units were disbanded.

The individuals were drafted as individuals, and then once they were in the federal army the federal government tried then to recreate these… these organized units.

That was the purpose of dual enlistment, to provide for a quick mobilization of organized units.

It had nothing to do with training; and also, it was expressly limited to use during a national emergency or wartime.

Congress, in 1933 when dual enlistment was created, in no way intended to divest from states the training authority over the National Guard, and Congress didn’t understand in 1933 that it was divesting such training authority.

There wasn’t federal training of the National Guard that went on at that time.

Sandra Day O’Connor:

Well, Mr. Tunheim, in this particular case were the troops federalized and ordered to Honduras for training?

John R. Tunheim:

Yes.

John R. Tunheim:

They were… they were federalized for purposes of Section 672, which is the training procedures, the training section for two-week purposes.

Sandra Day O’Connor:

Is it possible that the term “discipline” in the militia training clause includes the concept of location of the training?

John R. Tunheim:

Justice O’Connor, I think the term “discipline” clearly means the standards to be applied to training.

The framers, in fact, feared this very problem of confusing the authority of discipline and the authority of training.

One of the delegates proposed that… that the training reservation to the states simply be eliminated because, of course, the states would have that authority because it wasn’t being expressly given to the new federal government, and the delegate was talked out of it because of the fear that discipline might someday be read and interpreted broadly enough to include training.

The framers were very concerned about maintaining an effective state control over the militia except during times of emergency, and the reservation of training clause really has to be viewed in that light along with the appointment of officers clause.

William H. Rehnquist:

Does the militia clause speak of… of emergency?

I mean, Section 16 which you say has been violated, the authority of training militia going to discipline, does it… is it qualified in any way by the existence of an emergency?

John R. Tunheim:

Not in clause 16, Mr. Chief Justice.

clause 15 sets forth three purposes for which the militia can be called into the federal service.

Those are, in essence, emergency situations, and the State’s argument is also that Congress has the power under the army clause during an emergency to call the… to federalize the militia, to call the National Guard into the federal service based on this Court’s decision in the Selective Draft Law cases.

Now let me just explain in a nutshell the State’s position.

As I said, when… when the nation faces a national emergency, it is our view that Congress has complete power to federalize the National Guard under the army clause, or Congress can utilize the three purposes in clause 15 for calling the National Guard into the federal service.

In either case, state authority is completely removed; but, absent those circumstances, states retain basic control over the National Guard, particularly with respect to training which is expressly reserved to states.

This position harmonizes the army clause with the militia clauses instead of reading out of existence the militia clauses, which is the ultimate effect of Respondents’ position.

The National Guard is really a quintessential state organization.

The state militias, which every state had and has had since the beginning, were organized into the National Guard pursuant to Congress’ power to organize the militia.

They have remained state organizations of vast importance to the states throughout the years.

The National Guard is relied on very heavily–

Antonin Scalia:

Excuse me.

You say they were organized pursuant to Congress’ power.

Is there anything that would have prevented the Governor of Minnesota from simply issuing an order saying that henceforth what has been the… the state national guard is now denominated the state unorganized militia?

Could he do that?

John R. Tunheim:

–The State… unorganized–

Antonin Scalia:

He just gives it a new name.

He says this is no longer Minnesota’s organized militia.

Now the consequence of that will be that we would get no federal assistance, no tanks, planes and so forth, no firearms from the federal government, but it would be our… our own unorganized militia that we can train wherever we want.

Is there anything in law that would prevent him from doing that if he did not want a federally funded state national guard?

John R. Tunheim:

–Justice Scalia, if the governor wanted to do that he would not be able to maintain under federal law any other organized militia other than these defense forces.

Antonin Scalia:

Fine.

Antonin Scalia:

It wouldn’t be called an organized militia, but it would be the same unit, the same officers, the same enlisted personnel.

He could do that, couldn’t he?

Just give it a different name.

You are henceforth an unorganized militia.

And the only consequence of that would be he’d get no federal money.

John R. Tunheim:

They would not participate at all in… in the federal system?

Antonin Scalia:

That’s right.

John R. Tunheim:

That’s true; but, of course, federal law would not allow any organized militia.

You say an unorganized militia–

Antonin Scalia:

But this is… he’s called it an unorganized militia.

John R. Tunheim:

–Okay.

Well, the unorganized militia really is nothing.

It’s not organized at all.

It’s just a group of citizens.

Antonin Scalia:

Well, he’s chosen to do that.

He’s chosen otherwise.

So, really, all you’re complaining about is you want the federal money but you don’t want to be subject to federal training orders.

Yeah.

John R. Tunheim:

I don’t think that’s the issue, Justice Scalia.

The issue is that the states were reserved the authority of training the National Guard, and that authority is now being taken away in the Montgomery Amendment.

It’s express language in the Constitution in clause 16 that training authority is reserved to the states and just by–

Anthony M. Kennedy:

For… for the organized militia, which is your point?

John R. Tunheim:

–For… for the organized militia, right.

William H. Rehnquist:

But in the Selective Draft Law Cases the court said that the power of Congress to raise armies could narrow the effect of a militia clause.

John R. Tunheim:

During an emergency or wartime situation.

William H. Rehnquist:

Well, it did, but the language doesn’t say that.

John R. Tunheim:

Well, I think… I think, Mr. Chief Justice, in reviewing the Selective Draft Law cases you really can’t separate that case from the context in which it was written.

The issue in that case was whether the militia clauses somehow immunized an ordinary citizen from mandatory conscription during a world war and, of course, the answer to that was no.

Congress would not have any power to raise an army without conscription other than by volunteers.

That case did not involve the National Guard.

John R. Tunheim:

It did not involve the organized militia.

It did not involve the states or the states’ reserved power under clause 16.

It did not involve training, either peacetime or wartime.

In fact, the Solicitor General in arguing that the Selective Draft Law was constitutional assured the court that had had no impact on peacetime training of the National Guard which was reserved to the states.

And that really in that case if you look at it properly, there was no conflict between the clauses because the militia clauses do not give rights to individuals.

They give rights to Congress and to the states in this balance of power that… that the framers created.

To the extent that I think Selective Draft Law cases is relevant here, they recognize that Congress has very strong powers during wartime and during emergency situations.

Congress understood that in 1933 when it codified this emergency power into… in… and created the dual enlistment system.

The court also warned in the Selective Draft Law cases against an interpretation that would effectively destroy the militia clauses.

I think that case has to be limited to the context in emergency, and that’s completely consistent with the states’ position in this case that Congress does have the army… army clause power during an emergency to federalize the National Guard.

Let me talk just briefly about… about the framers and what they intended here.

To the framers the militia were really the citizen soldiers belonging to the various states, an issue of… of extreme controversy and… and substantial debate in the summer of 1787 was how much control to take away of the militia, to take away from the states and give to the new federal government.

Many wanted to retain plenary state control over the militia because they greatly feared, the framers greatly feared, the effect of a large standing federal army, and they believed that state control would be a very important… a very important check on misuse of the federal… federal army.

They rejected Alexander Hamilton’s proposal to make the militia totally subject to the federal government.

They were also concerned, however, with providing the federal government enough authority during an emergency situation to be able to have access to the militia, and so they reached a compromise.

The militia would remain a state organization, but in an emergency for limited purposes Congress would have power to call the militia into the federal service.

Anthony M. Kennedy:

Could Congress have had power to call the militia of Minnesota what we call the National Guard to Honduras for a year to execute the laws of the United States under clause 15?

John R. Tunheim:

If that were the purpose of the call, to call forth into the federal service to execute the laws of the United States, yes.

Anthony M. Kennedy:

And the governor would have no veto power with reference to that?

John R. Tunheim:

Absolutely none if there’s a call pursuant to clause 15.

Sandra Day O’Connor:

But your position is that this call was under the training provision–

John R. Tunheim:

This was clearly–

Sandra Day O’Connor:

–not… not under any of the three purposes in clause 15?

John R. Tunheim:

–Yes, Justice O’Connor.

This clearly was a call for training purposes, or federalization for training purposes, and nothing more.

Anthony M. Kennedy:

So that means we are in a position where we can’t train them to do some of the things that we have to call them forth to do?

John R. Tunheim:

The Constitution, Justice Kennedy, gives to states the power to train, the authority over training the… the militia.

Congress can prescribe the discipline so that the militias, the National Guards of the various states can work together and can fire the same weapons, can read out of the same drill manuals, can drive the same tanks or bulldozers.

That’s Congress’ power to specify the discipline.

But the power, the… the authority over the training, which is the precise words in the Constitution, is reserved to the states.

John R. Tunheim:

The framers thought it was so imperative to reserve this power to the states that they wrote it into the Constitution.

A document that writes in very little express reserved powers for states because it’s a document that gives limited powers to a new federal government, it was so imperative for maintaining this control, this balance of power, the checks and balances which are inherent in the Constitution that they wrote it in, and it is the language of the Constitution.

Byron R. White:

The power of training reserved to the state was to be exercised according to the discipline prescribed by Congress.

What does that mean?

John R. Tunheim:

The discipline, Justice White–

Byron R. White:

You mean, does that–

John R. Tunheim:

–means the standards.

Byron R. White:

–The standards and what they’re supposed to teach them?

John R. Tunheim:

What they’re supposed to teach them.

Byron R. White:

What they’re supposed to learn?

John R. Tunheim:

The… the… originally it was a drill manual.

Byron R. White:

So the states would just be… would just be… sort of a, just carrying out what Congress says they must do.

John R. Tunheim:

That’s… that’s precisely correct.

The states, though, have the authority over the training.

I think that that–

Byron R. White:

What is that… what is that authority over the training?

What if the Congress says twice a year you will train, and here’s what you will… here’s the routine you will go through, and the state has absolutely no discretion about either time or place or what they are supposed to do when they train.

John R. Tunheim:

–Well, if you read discipline–

Byron R. White:

Is that right?

John R. Tunheim:

–I… I don’t think that’s right, Justice White.

If you read the term discipline that broadly, it encompasses a good part of what’s involved in the authority of training.

There’s not… it’s difficult to find a bright line in here between discipline and training, but I think it is that the discipline is the generalized commands that are given by Congress to the states, and the particularized application of those general commands are what training is and what is reserved for the authority of the states.

I will reserve my remaining time if there are no further questions.

William H. Rehnquist:

Very well, Mr. Tunheim.

General Starr.

Kenneth W. Starr:

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

The army clause of the United States Constitution provides in broad terms that the Congress shall have power to raise and support armies, and consistent with the breadth of the text of the Constitution this Court has broadly construed this clause and the powers that are granted under this clause.

The Court has described the powers granted under it as plenary, as broad and sweeping and, importantly for purposes of this case, as not limited by the militia clauses.

Coupled with the necessary and proper clause, there is little doubt… and we have heard today… that there is no dispute that Congress had the power under the army clause to create an entity.

That entity is the National Guard of the United States, and it created it as a component of the armed forces of the United States.

Kenneth W. Starr:

When it created the National Guard of the United States in 1933, Congress was very clear.

It relied expressly on this Court’s World War I decisions in the Selective Draft Law cases and Cox against Wood.

And the theory of those cases is that to the extent that Congress exercises its powers under the army clause the efficacy, the sweep of the militia clause is thereby limited.

Sandra Day O’Connor:

Well, General Starr, in the statutes when Congress created this National Guard of the United States, as I understand it the statutes did provide that the Secretary of Defense could order any national guard unit into active duty for not more than 15 days a year with the consent of the governor.

Now I guess it’s your position that that provision wasn’t necessary.

Kenneth W. Starr:

That’s correct.

That is our position.

Sandra Day O’Connor:

That Congress didn’t have to say we’ll give the governor a voice.

Kenneth W. Starr:

That is precisely our position because of what this entity is.

Sandra Day O’Connor:

Would you… would you be so kind as to tell me in this case whether you claim that the President called the guard to Honduras under one of the three purposes of the militia clause?

Kenneth W. Starr:

No, it did not.

The President did not, or the Secretary, and the authority did not.

This is not–

Sandra Day O’Connor:

Well, were they called under the training clause of the militia clause?

Kenneth W. Starr:

–No, they were not.

They were called under the army’s clause.

They were called in their capacity as part of the Army and Air Force of the United States.

Anthony M. Kennedy:

Well, when… when the National Guard was created, was Congress acting pursuant to its power to organize the militia?

Kenneth W. Starr:

Congress was acting in 1933 under its army clause powers, not under its organization–

Anthony M. Kennedy:

Well, but Section 310 says that there is the organized militia, which is the National Guard.

And it seems to me very odd for you to say that the militia clause, the organization clause, is not being relied upon when they create the National Guard.

I just can’t square that with Section 310.

Kenneth W. Starr:

–This is critical, Justice Kennedy.

Section 311 speaks of the national guard.

You’re quite right.

What I’m speaking of is the National Guard of the United States.

There are two separate entities.

That is the thrust, that is the essence of the dual enlistment concept.

If I leave nothing else today, I want to leave the Court with that clear distinction.

An individual who serves in his or her national guard unit serves in two capacities.

Kenneth W. Starr:

That individual is, indeed, a state militia person, but that person also since 1933 takes an oath of allegiance under the Constitution of the United States to obey the orders of the President, and the Congress has seen fit to give powers both unto itself in its exercise of army clause powers to make use of this reserve component, and it’s a critical part of the reserves.

The National Guard of the United States, when it goes to Honduras, when it goes as it is now–

As we speak, approximately 4,000 national guardspersons are in training operations in South Korea.

Some of those individuals who have been involved in that exercise are from Minnesota.

They are not there in their militia hats.

They do wear those hats when they return to Minnesota and the other states, but when they have been summoned under the authority of 672(b), they are summoned in their capacity as members of the reserves of the United States Armed Forces.

Antonin Scalia:

General Starr, is it within the power of a governor of a state to say I want to have my own militia that works for me full-time, I am willing to fund them, to buy their arms or they will fight with karate if necessary, but I do not want them to be part of the national guard, and, therefore, I am establishing a state militia that will be an unorganized militia, we will have no organized militia.

Can a governor do that?

Kenneth W. Starr:

Several points.

There is no obligation on the part of any state to maintain a national guard.

The federal statutes–

Antonin Scalia:

Why don’t you answer yes or no and then go on and tell me?

Can a governor do that?

Kenneth W. Starr:

–The governor cannot violate Article I, Section 9 of the Constitution with respect to maintaining troops in peacetime without Congress’ consent.

Congress has consented, as we have heard today, to the creation of state defense forces, and we see that in federal… I’m sorry?

Antonin Scalia:

I thought the Constitution allows the state to have a militia.

They can’t have a militia without Congress’ consent?

Kenneth W. Starr:

In terms of maintaining… it depends on whether they are troops.

If they are… your hypothetical, other than karate training, contemplated equipping these individuals with arms.

Antonin Scalia:

Well, I assume militia have arms.

Don’t you think that–

Kenneth W. Starr:

Not at the time of the founding.

They supplied their own, and for over 100 years the individuals in the militia were obliged to supply their own arms.

Therein lies the purpose of the Second Amendment, to maintain the right of the people to bear their arms so they can serve in the militia.

Under your hypothetical, the governor is seeking to create an armed force.

That he can only do with the consent of Congress.

Antonin Scalia:

–I see.

Well, this is a harder case than I thought, then.

You… you are saying, then, that the state cannot have a… a militia that it arms unless… any militia it arms will automatically be subject to this dual system.

It cannot avoid it.

Kenneth W. Starr:

Unless it comes within 109(c), which is the provision for state defense forces.

Congress has consented to the creation of–

Antonin Scalia:

That’s a matter of grace.

Kenneth W. Starr:

–Exactly.

Antonin Scalia:

And you’re saying that Congress can set it up in such fashion that the state cannot have any militia of its own which it arms that cannot be subject to the beck and call of… of the United States?

Kenneth W. Starr:

It cannot equip individuals without the consent of Congress.

May I… may I, however, add this very critical point?

The militia is contemplated by the founders.

This is clear as can be.

I don’t think there is any dispute that the militia was viewed as it is used in the Constitution, as the able-bodied populace, able to pick up and bear arms to defend.

It did not mean those individuals who are serving in a particular unit.

Anthony M. Kennedy:

But the framers, General Starr, were very careful to say that Congress has the authority to organize that militia?

Kenneth W. Starr:

That is true.

Anthony M. Kennedy:

And you have been very careful to say that that isn’t what’s happening here.

Kenneth W. Starr:

In this respect, that is exactly right, that Congress has not been exercising its militia powers, which it does have under clause 15, to organize, and we think that includes defining who is serving in the militia.

Sandra Day O’Connor:

Well, is it… is it clear that the framers thought that Congress could prevent the states from setting up their own militia and giving them equipment?

Kenneth W. Starr:

In terms of giving them equipment, I don’t think the record is clear on that, but what we do know is that the Congress in 1792 determined that the individuals who would in fact be serving in the militia, all able-bodied persons, would supply their own, and it certainly was–

William H. Rehnquist:

What… what provision of the Constitution is it that you rely on to say that a state may not have its own militia that it arms?

Kenneth W. Starr:

–Oh, I’m sorry, not militia, but may not maintain troops in peacetime without the consent of Congress.

William H. Rehnquist:

What provision is that?

Kenneth W. Starr:

That is Article I, Section 9, which limits the powers of the states.

“No state shall, without the consent of Congress, lay in a duty of tonnage, keep troops or ships of war in time of peace. “

and so forth.

Antonin Scalia:

That means full-time troops, isn’t that the meaning?

The militia, you know, the Minuteman, he’s a farmer and then he’s called to service, but when he’s called to service it doesn’t mean he can’t use a tank.

I don’t know how you read that to say that the state can’t arm them, as opposed to meaning that the state cannot have a full-time army, but that’s not what we’re talking about here.

Kenneth W. Starr:

As long as the individuals do not rise to the level of troops, there is no question that the Governor… first of all, the Governor enjoys–

Anthony M. Kennedy:

But that’s not involved here, is it, Mr. Starr?

Kenneth W. Starr:

–It is not involved here, at all.

That is correct, Justice Kennedy.

Kenneth W. Starr:

What is involved here–

Anthony M. Kennedy:

What troubles me is that the Congress of the United States has authority to organize and arm the militia, not to create it, and the state has the right to create it, and there’s a reserved right of the state to control it.

There is reserved power in the Governor to control the militia, is there not, under the Constitution?

Kenneth W. Starr:

–The only control is that of the appointment of officers, clause 16, and the authority of training the militia according to the discipline prescribed by Congress.

That is to say, Congress could, if it saw fit, summon forth all able-bodied persons into service of the country.

It could authorize the President to do that.

That is precisely what the President did, and that’s what Congress has authorized it to do, in providing for military training for those persons who wear their twin hats, their double hats.

These individuals are being trained in Honduras or South Korea or Europe or elsewhere as members of the reserves of the United States Armed Forces, and this is critical.

This is absolutely critical, that as a practical matter, since the 1970s, U.S. strategic doctrine is such that the use of the National Guard of the United States as members of the reserve component of the Armed Forces is critical.

As we outline in our brief at a time of full mobilization, 18 of the Army’s combat divisions, 18 of the 28, would be National Guard of the United States units.

A very substantial part of the United States Air Force is the United States National Guard Air Force, the National Guard of the United States.

Anthony M. Kennedy:

Is it fair to say that the war power here is being used, in effect, to override a reserved power given to the states under Article 16?

Kenneth W. Starr:

I don’t think so.

I think this is… I would say, it’s an exercise of the army’s clause power.

I don’t think there’s any override, because the state interest that is involved here is a very strange one.

What the Governor is seeking to do is not to forbid overseas training of the Armed Forces of the United States.

There’s no objection to their being trained in South Korea and Europe.

What the Governor has sought to do is to play a role in the foreign policy and defense policy of the United States, to say they should not be trained in Central America, even though troops are employed in Central America and National Guard of the United States troops are employed and were employed in the Panamanian operation, they were employed in the Grenadan operation, they were employed in the Libyan air strike, and they have been employed in all major activities of the Nation’s Armed Forces since the creation of the National Guard in ’33.

Anthony M. Kennedy:

Did any governors object to any of those instances you mentioned?

Kenneth W. Starr:

No.

There was no gubernatorial–

Anthony M. Kennedy:

Well, then there was no constitutional problem.

Kenneth W. Starr:

–There was no gubernatorial objection, because I think until quite recently there was no sense at all that there was any basis for objecting to the training of individuals in their capacities as the Armed Forces of the United States.

Again, that is what these individuals are.

John Paul Stevens:

General Starr, can I ask you a question?

I just want to be sure I understand your position.

Kenneth W. Starr:

Yes.

John Paul Stevens:

On the basic notion of the dual enlistment system, do I correctly understand you to say that the states really have no alternative, they cannot operate a separate militia as contemplated by the militia clause, if Congress says the only militia you can have has to have this dual status?

Do they have any kind of option under the Constitution?

Kenneth W. Starr:

They certainly have the option not to participate in the National Guard system, that is clear.

John Paul Stevens:

But can they have… if they don’t participate in the National Guard system, may they have their own separate militia?

Kenneth W. Starr:

They may have their own state defense forces–

John Paul Stevens:

No.

Kenneth W. Starr:

–that are carrying out militia functions.

John Paul Stevens:

Can they have the militia… whatever that term means in the militia clause of the Constitution, can they have that animal without having that animal become part of the United States Army?

Kenneth W. Starr:

Yes, they can.

I don’t see any reason constitutionally that they cannot.

John Paul Stevens:

I thought earlier you said that they couldn’t.

That’s why I’m really puzzled.

Kenneth W. Starr:

The concern I have is with respect to consent with respect to maintaining troops.

It has to do with what the function is.

If the function of the state defense forces, as it is, is to maintain law and order and to respond in terms of emergencies and the like, then they certainly do have that power to maintain that sort of entity.

John Paul Stevens:

Well, they want to have a militia that would be available to become part of the United States if war should be declared.

They want to train their own people, and so forth, according to the discipline prescribed by Congress.

But you say they cannot do that, because that would be maintaining troops in violation of–

Kenneth W. Starr:

Well, in addition, what Congress has seen fit to do is to define in federal law the militia of the United States, and it is indicated that that consists of all able-bodied males of a certain age.

It then breaks the militia into two classes.

John Paul Stevens:

–What section is this?

Kenneth W. Starr:

This is 10 United States Code Section 311, and the organized militia is then defined as the National Guard and the naval militia.

Now, Congress has seen fit, as I say, to provide for the creation of state defense forces, but Congress has the power given to it at the founding in the Constitution to provide for organizing and arming and disciplining the militia, so Congress can, in fact, organize it and has done so.

Sandra Day O’Connor:

The Petitioner says that Congress has also forbidden the states to have an organized militia except under the terms that Congress has provided, which also makes them part of the national reserve component.

Is that correct?

Kenneth W. Starr:

Well, I take issue with that in terms of the definition in the Constitution of the militia.

That is to say, the militia is not defined, and it was understood… it was understood at the founding that the militia consisted of a body of persons.

Those individuals may, in fact, be called into the service of the United States.

That has the effect of preempting any state functions that those individuals might in fact otherwise be carrying on.

John Paul Stevens:

Yes, but they can only be called, according to the Constitution, into the service of the United States for the three purposes that are specified: to execute the laws of the Union, suppress insurrection and repel invasion.

Kenneth W. Starr:

That’s quite true.

They can only be called… the militia can only be called into service–

John Paul Stevens:

That’s quite different from calling them into duty for the purposes of training in Honduras.

Kenneth W. Starr:

–That’s quite right, and that’s why Congress in fact exercised army clause powers in 1933.

It did not exercise militia clause powers.

If one looks at the background of what Congress did, Congress did not say, we are exercising our rights to organize the militia, clause 16.

We’re doing that in order to prepare for the exercise of clause 15 powers.

Not at all.

They said, we’re exercising our army clause powers.

That’s what we’re exercising, and these individuals are becoming members of the reserves, of the Armed Forces of the United States.

Antonin Scalia:

Well, Mr. Starr, when Section 311 says that… in 311(b)… the classes of the militia are (1) the organized militia, which consists of the National Guard and the naval militia, (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the naval militia, does “organized” and “unorganized” have any objective meaning, or is it just a convenient term to refer to those militia that are the National Guard and those militia that aren’t?

Kenneth W. Starr:

I think it means Item (2), (b)(2), means that part of the pool of able-bodied persons defined in (a), the militia of the United States consists of all… in fact, it’s–

Antonin Scalia:

What does “unorganized” mean?

I mean, does it mean that they can’t be organized?

Kenneth W. Starr:

–No.

What it means is, they have not been organized.

Antonin Scalia:

They haven’t been federally organized?

Kenneth W. Starr:

They haven’t been organized at all.

Antonin Scalia:

So a state cannot have any organized militia that isn’t part of the National Guard.

They can also–

Kenneth W. Starr:

No, that’s not true.

Cannot have a militia–

Antonin Scalia:

–Well, they have to be federally organized?

Kenneth W. Starr:

–Our definitional difficulties are arising by virtue of different uses of the term “militia”.

The term “militia” as used in the Constitution, as I see it, has to do with those able-bodied persons who can in fact be summoned by the state, by the Governor… and the Governor has that power.

This is important.

The Montgomery Amendment does not… does not… even if one were to say this is the militia, the Montgomery Amendment simply says, Governor, you can’t object to their training as Armed Forces of the United States on these four enumerated grounds.

If you need them… if you need them in Minnesota, you can keep them in Minnesota.

Antonin Scalia:

I’m trying to get back to whether the Governor can organize them.

I mean, surely the… surely the state’s ability to train them includes the ability to organize them.

The state cannot have an organized militia, it can only have… you know, able-bodied men out there who may have their own rifles, and it can’t even appoint officers and… I mean, the appointment of the officers is left to the state.

That implies organization, doesn’t it?

Kenneth W. Starr:

It certainly implies that those individuals who are in the unorganized militia may become organized.

Kenneth W. Starr:

Now, Congress has been given the power to organize.

Antonin Scalia:

So you really think the unorganized militia means… in this statute means unorganized, that the state has no independent authority to organize a militia, all it can do is designate a bunch of people who we say, you are militia, but we can’t organize you without federal consent.

Is that the government’s position?

Kenneth W. Starr:

In terms of maintain… as long as they do not run afoul… it’s not involved in this case, but as long as they do not run afoul of the maintaining troops in wartime… in time of peace.

I see… there’s nothing specific that says, you cannot take certain actions.

What we do have in federal law are authorizations to establish state defense forces, and 30 states have availed themselves of that, and that is completely outside the ambit of the National Guard.

Antonin Scalia:

I think you’ve said they can organize, so long as they don’t run afoul of the maintaining troops clause, whatever that might mean.

Right?

Kenneth W. Starr:

That is correct.

They can… they can organize, but that power can in fact, it seems to me, be overridden, if Congress sees fit to exercise its clause 16 power.

William H. Rehnquist:

There are a lot of questions that are kind of lurking on the edge of this case–

Kenneth W. Starr:

Yes.

William H. Rehnquist:

–that we really don’t have to decide in writing an opinion one way or the other.

Kenneth W. Starr:

I fully agree with that.

[Laughter]

And many of those questions have been discussed at length here.

If one reads the Court of Appeals opinion en banc, one sees, it seems to me, a very clear and correct opinion.

When Judge Magill, in writing for the overwhelming majority of the en banc court, comes to the conclusion, at that part where he says, Congress was exercising its army clause powers here, and that power is sufficient to establish the armed forces of the United… to include in the armed forces of the United States, these individuals, that is the end of this case.

Congress’ power is plenary.

There is no question.

Getting back to Justice O’Connor’s earlier questions.

There is no question that these individuals were in federal status.

Whatever the limits of power, there is no question that they were in federal status.

Indeed, they need to be in federal status in order to enjoy federal benefits, in order to enjoy federal protections under status of forces agreements.

Antonin Scalia:

General Starr, I have no doubt that Congress’ power is plenary, but I’m not sure that we’re going to read Congress’ power to totally eliminate another power, namely, the power of the states to maintain militia, any more than we would enable Congress to… to draft all state governments, and say all members of state governments are automatically members of the National Guard, and we may send them abroad at our will.

That would be destroying another governmental institution that’s in the Constitution.

And what I’m concerned about is the position you’re taking is indeed, in fact, that that’s what the government can do.

That by simply waving a wand over the state militia and saying you are now federal militia, the government, you are saying, I think, can eliminate the power that was reserved to the states to have their own militia and to train them.

Kenneth W. Starr:

I think, Justice Scalia, that, although not involved in this case, I must state that that is not involved in this case.

This is an extremely limited regulation.

Kenneth W. Starr:

This is a system of cooperative federalism that works very well.

It worked extraordinarily well until governors sought to play a role on the stage of foreign policy, and then Congress stepped in.

It stepped in narrowly; it stepped in precisely.

But, to get to your theory, I think that is the theory of the case in selective draft law cases.

Anthony M. Kennedy:

Do you know of any authority for the proposition that an express power given to Congress can override an express limitation on Congress’ power under some other provision of the Constitution?

Kenneth W. Starr:

When these individuals… the answer is… is no.

But when these individuals have been summoned to serve their country, I don’t think there is any doubt that Congress has the power to pass a law that has the effect of summoning all able-bodied persons to serve their country.

That has the effect… and that’s what Chief Justice White recognized in Selected Draft Law cases, he recognized it again in Cox against Wood, that that has the inevitable effect of shrinking the compass, shrinking the operation of the militia clauses.

Congress does not do that.

It does not do that because Madison saw it at the founding.

That there were protections… there were political protections, that states are represented in the Congress of the United States.

But in terms of pure theory, pure theory, the pure theory of Selective Draft Law cases is when it… and it stands to reason, that were we truly in a time of crisis, and the nation needed the help of every able-bodied person, then we ask the Congress–

John Paul Stevens:

Of course, those cases are easy when you get a time of crisis.

The question is what about training when you’re not in a time of crisis?

That’s what this case is about.

Kenneth W. Starr:

–That’s correct.

This is not the–

John Paul Stevens:

May I ask you?

What do you think the word militia means in the Constitution?

Kenneth W. Starr:

–I think it means the pool of able-bodied persons who are able to serve their country or to serve their state.

I think it means a pool of persons.

And that is the definition, in effect, that was given to the militia in 1792 by the initial Militia Act that remained in effect until 1903.

The militia is you and I, if we’re of a certain age category–

John Paul Stevens:

Which we aren’t–

Kenneth W. Starr:

–who can be–

[Laughter]

I am still in the militia.

John Paul Stevens:

–All right.

[Laughter]

Kenneth W. Starr:

Others, I suppose, are emeriti members of… of… of the militia.

Kenneth W. Starr:

[Laughter]

I think–

John Paul Stevens:

I don’t know what I was now.

[Laughter]

Kenneth W. Starr:

–But I think that’s what the militia clauses of the Constitution are getting at.

John Paul Stevens:

May I ask–

Kenneth W. Starr:

They’re talking about that pool of persons who can be summoned.

John Paul Stevens:

–May I ask one other question?

Is the argument you’re making today the same argument you submitted in your brief?

Have you changed your position at all?

I didn’t really… I had a different view of your position in your written brief than I do now.

Kenneth W. Starr:

No, and–

John Paul Stevens:

For example, I don’t think you relied at all on the troops… the prohibition–

Kenneth W. Starr:

–Oh, I did that only in response to questions about what is the authority of governors to go and organize militia units?

That’s correct.

This case is a very narrow case.

The argument has very been wide ranging.

But the case, the issue that is before the Court is exceptionally narrow, that does not require us to visit–

John Paul Stevens:

–It involves training in a time when there’s no emergency.

Kenneth W. Starr:

–That is correct.

But the critical point, Justice Stevens, is, what are these individuals when they are “being trained”?

They are troops of the United States.

They wear two hats.

When they went to Honduras, they were wearing their federal hats.

John Paul Stevens:

They wear two hats, and as I understand it now, and frankly I didn’t… but they must wear two hats, too.

That’s what I… that’s the impression I have from your whole argument.

Kenneth W. Starr:

The National Guard, since… that is correct.

To be in the National Guard of the United States one must be in the National Guard, the state National Guard.

There may be some individuals who are members of the National Guard but who are not members of the National Guard of the United States.

I understand there are a few persons in that category, but you’re quite right, since 1933, an individual to sign up, to enlist in the National Guard, enlists in both.

Harry A. Blackmun:

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.

We… we knew that we had to go to Camp Ripley… you won’t know where that is, but Mr. Tunheim 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.

[Laughter]

I’m delighted to learn about the Minnesota National Guard.

Kenneth W. Starr:

May I respond very briefly to that?

William H. Rehnquist:

No, that’s not a question, General Starr.

[Laughter]

Kenneth W. Starr:

I thank the Court.

William H. Rehnquist:

Mr. Tunheim, you have two minutes remaining.

John R. Tunheim:

Thank you, Mr. Chief Justice.

The essence in this case is really a dispute over what dual enlistment means.

And I remind the Court that these two entities are the same organization.

These are the same people.

Dual enlistment merely created a reserve force which relies completely on the states, on the National Guard, that the state organize militias for its members.

The Respondent tries to claim, somehow, that the National Guard of the United States and the National Guard are kind of like apples and oranges; you can switch the hats.

They really aren’t even apples and apples.

They are the same apple.

These are the same people, and you just cannot wave this magic wand and eliminate constitutional protections, constitutional limitations, which were the essence of a compromise that the framers made 200 years ago over the control over the… of the militia.

The–

John Paul Stevens:

May I ask you what you think the term militia means in the Constitution?

John R. Tunheim:

–I think the term militia in the Constitution refers to the militia organizations that the states had at the time that the framers sat down to write the Constitution.

It has been used in the sense of every able-bodied person who’s available, but once it is organized, it is organized as a militia.

John Paul Stevens:

But… but the power to organize the militia is given to Congress.

John R. Tunheim:

And Congress has exercised that power, has organized the militia, and has created the National Guard.

That is the entity that we’re talking about today.

Now they’ve gone beyond that to interpret dual enlistment, which has never been interpreted to… to eliminate constitutional protections to… to now require that… that to be done under the army clause.

In 1933, when dual enlistment was created, its use as a federal force, the National Guard of the United States was expressly limited to emergencies, relying on the Selective Draft Law cases.

When that was changed to bring the National Guard into federal training for the first time in 1952, it was done only pursuant to the governors’ consent.

John R. Tunheim:

State authority over training has been consistently recognized for 200 years, until the enactment of the Montgomery Amendment.

William H. Rehnquist:

Thank you, Mr. Tunheim.

John R. Tunheim:

Thank you, Mr. Chief Justice.

William H. Rehnquist:

The case is submitted.