RUDY PERPICH, GOVERNOR OF MINNESOTA, ET AL., PETITIONERS V.
DEPARTMENT OF DEFENSE, ET AL.

   No. 89-542

   In the Supreme Court of the United States

   October Term, 1989

   On Petition for a Writ of Certiorari to the United States Court of
Appeals for the Eighth Circuit

   Brief for the Respondents in Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinions below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The en banc opinion of the court of appeals (Pet. App. A1-A62) is
reported at 880 F.2d 11.  The opinion of the panel (Pet. App.
A63-A141), which was vacated by the court of appeals en banc (Pet.
App. A62.1), is unreported.  The opinion of the district court (Pet.
App. A141-A153) is reported at 666 F. Supp. 1319.

                             JURISDICTION

   The judgement of the court of appeals was entered on June 28, 1989.
 The petition for a writ of certiorari was filed on September 26,
1989.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether the Montgomery Amendment, 10 U.S.C. 672(f), which prohibits
a State's governor from withholding consent to a National Guard unit's
being ordered to active duty outside the United States on the ground
that the governor objects to the location, purpose, type, or schedule
of that duty, is a constitutional exercise of Congress's power under
the Army Clause, U.S. Const. Art. I, Section 8, Cl. 12.

                               STATEMENT

   1. In 1933, Congress established the "dual-enlistment system" for
the National Guard.  Under this system, each National Guardsman
enlists simultaneously in two distinct organizations:  (i) the Army or
Air National Guard of a particular State, each of which is a part of
the organized militia of that State (see 32 U.S.C. 101(3)-(4), 101(6),
304) and (ii) the Army or Air National Guard of the United States,
each of which is a reserve component of the national armed forces (see
10 U.S.C. 101(11), 261, 3261, 8261;  32 U.S.C. 101(5) and (7)).  /1/
The National Guard of the United States (NGUS) is a wholly federal
organization;  when serving on active duty, NGUS personnel are
relieved from duty in their respective state National Guards.  32
U.S.C. 325.

   Congress has prescrbed the situations in which members of the NGUS
may be ordered to active duty.  E.g., 10 U.S.C. 672-675.  For
instance, in the event of a war or a national emergency declared by
Congress, federal authorities may order any NGUS unit to active duty
(other than for training) for the duration of the war or emergency and
for six months thereafter.  10 U.S.C. 672(a).

   This case involves units ordered to active duty under 10 U.S.C.
672(b) and (d).  Under 10 U.S.C. 672(b), a unit of the NGUS may be
ordered to active duty for any purpose, with the consent of the
governor of the State from which that unit comes, for up to 15 days a
year.  /2/ Under 10 U.S.C. 672(d), any member of the NGUS may be
ordered to active duty indefinitely, with his consent and the consent
of the governor of the State of whose National Guard he is a member.
/3/

   In 1986, after several governors expressed opposition to the
Administration's Central American policy and indicated that they would
withhold their consent to NGUS training missions in that region,
Congress enacted the Montgomery Amendment, 10 U.S.C. 672(f).  This
provision prohibits a governor from withholding consent to an NGUS
unit's active duty outside the United States because of any objection
to the location, purpose, type or schedule of that duty (10 U.S.C.
672(f)):

         The consent of a Governor described in subsections (b) and
      (d) (of 10 U.S.C. 672) may not be withheld (in whole or in part)
      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.

   2. Petitioners, the State of Minnesota and its governor, Rudy
Perpich, commenced this action after the Secretary of Defense ordered
NGUS units from Minnesota to active duty for three training missions
in Central America.  Pet. App. A3-A4.  The complaint sought a
declaratory judgment that the Montgomery Amendment violates the
Militia Clause, U.S. Const. Art. I, Section 8, Cl. 16;  in addition to
specifying Congress's powers with respect to state militias, that
clause "reserv(es) to the States * * * the Authority of training the
Militia according to the discipline prescribed by Congress." Pet. App.
A4.  /4/ Petitioners also sought an injunction prohibiting federal
authorities from ordering any unit of the Minnesota National Guard to
active duty for training abroad without Governor Perpich's consent.
Ibid.

   The district court granted summary judgment for the federal
government.  Pet. App. A141-A153.  The court found that the dual
enlistment system is "a valid exercise of Congressional power under
the Army and Necessary and Proper clauses" of the Constitution, U.S.
Const. Art. I, Section 8, Cls. 12, 18, and that the Militia Clause
"does not inhibit this power." Pet. App. A149-A150.  /5/ "Because
Congress' authority to provide for the National defense is plenary,"
the court continued, "the Militia clause also cannot constrain
Congress' authority to train the Guard as it sees fit when the Guard
is called to active federal service," "the gubernatorial veto found in
Sections 672(b) and 672(d) is not constitutionally required," and
"Congress may withdraw the veto without violating the Constitution."
Id. at A150.  The district court concluded that "Congress acted within
its authority in providing for the active duty training of the
Minnesota National Guard in Central America without plaintiff
Perpich's consent, and plaintiffs' challenge to the Montgomery
amendment's constitutionality must fail." Id. at A152-A153.

   4. A divided panel of the court of appeals reversed.  Pet. App.
A63-A141.  The majority of the panel-Judge Heaney and Senior Judge
Fairchild, sitting by designation-held that the Montgomery Amendment
"contravenes the intent of the Framers" and "violates the plain
language" of the Militia Clause by encroaching upon the States'
reserved power to train the militia.  Id. at A66.  The majority also
ruled that the Montgomery Amendment is at odds with this Court's
decisions in the Selective Draft Law Cases, 245 U.S. 366 (1918), and
Cox v. Wood, 247 U.S. 3 (1918);  the majority read those decisions to
establish that "the army power could supersede reserved state
authority over the militia only when Congress had determined that
there was some sort of exigency or extraordinary need to exert federal
power." Pet. App. A92.  Judge Magill dissented.  Id. at A123-A141.

   5. Acting en banc, the court of appeals granted rehearing, vacated
the panel's decision, and affirmed the district court's decision.
Pet. App. A1-A62.1.  The majority of the court described the issue
presented by the parties' positions as follows:  "when the State
claims a right to control Militia training, and Congress claims "We're
training the Army, not the Militia,' who wins?" Id. at A9.  It
resolved that question in favor of federal authority, noting that
"(t)he authority given to Congress by the army clause is plenary and
exclusive." Ibid.  Like the district court, the majority of the court
of appeals determined that the dual-enlistment system -- and the
authority conferred on federal officials to order NGUS units to active
duty for training -- were valid exercises of Congress's power under
the Army Clause.  Id. at A9-A10.  The majority also noted that, in the
Selective Draft Law Cases, supra, this Court "made clear that the army
clause is not limited by the militia clause." Pet. App. A11.  The
majority concluded (id. at A13):

         Congress' army power is plenary and exclusive.  The
      reservation to the States of authority to train the Militia does
      not conflict with Congress' authority to raise armies for the
      common defense and to control the training of federal reserve
      forces.  The Montgomery Amendment is a constitutional exercise
      of Congress' army powers.

   Judges Heaney and McMillian dissented.  The dissenting opinion
adhered to the views expressed in the panel majority opinion.  Pet.
App. A14-A62.

                               ARGUMENT

   The court of appeals' decision is consistent with a recent First
Circuit decision that upheld the Montgomery Amendment in the face of a
constitutional challenge indistinguishable from petitioners'.  Dukakis
v. United States Dep't of Defense, 859 F.2d 1066 (1st Cir.) (per
curiam), aff'g 686 F. Supp. 30 (D. Mass. 1988), cert. denied, 109 S.
Ct. 1743 (1989).  No other court has reached a different conclusion.
This Court denied certiorari in Dukakis, and there are no
circumstances that would support a different disposition of this case.

   As we demonstrated in our brief in opposition in Dukakis, /6/ and
as both the First and Eighth Circuits have now held, the
dual-enlistment system is a lawful exercise of Congress's authority
under the Army Clause and the Necessary and Proper Clause.  Moreover,
in the Selective Draft Law Cases, supra, and Cox v. Wood, supra, which
presented the question whether Congress could draft members of the
state militias into the federal armed forces, this Court rejected the
proposition on which petitioners rely here -- that the Militia Clause
limits Congress's plenary authority under the Army Clause.  That
resolution of the relationship between the Militia Clause and the Army
Clause cannot fairly be limited to wars or other declared national
"exigencies" (see Pet. 11-15), and it is dispositive of this case.
/7/

   Finally, even if it were not foreclosed by the Court's cases, the
accommodation between the Militia Clause and the Army Clause that
petitioners advocate would be untenable.  Under petitioners' view,
Congress could require units of the NGUS to fight a war abroad, a
mission that is not among those for which the Militia Clause permits
state militias to be used, /8/ but would lack the authority to prepare
and train them abroad for such an eventuality.  Nothing in the
language or history of the Militia Clause justifies attributing that
contradictory intention to the Framers.

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   STUART M. GERSON

      Assistant Attorney General

   ANTHONY J. STEINMEYER

   DEBORAH RUTH KANT

      Attorneys

   NOVEMBER 1989

   /1/ The history that led up to the adoption of this system is
summarized in Wiener, The Militia Clause of the Constitution, 54 Harv.
L. Rev. 181 (1940).

   /2/ Section 672(b) provides:

         At any time, an authority designated by the Secretary
      concerned may, without the consent of the persons affected,
      order any unit, and any member not assigned to a unit organized
      to serve as a unit, in an active status in a reserve component
      under the jurisdiction of that Secretary to active duty for not
      more than 15 days a year.  However, units and members of the
      Army National Guard of the United States or the Air National
      Guard of the United States may not be ordered to active duty
      under this subsection without the consent of the governor of the
      State or Territory or Puerto Rico or the commanding general of
      the District of Columbia National Guard, as the case may be.

   /3/ Section 672(d) provides:

         At any time, an authority designated by the Secretary
      concerned may order a member of a reserve component under his
      jurisdiction to active duty, or retain him on active duty, with
      the consent of that member.  However, a member of the Army
      National Guard of the United States or the Air National Guard of
      the United States may not be ordered to active duty under this
      subsection without the consent of the governor or other
      appropriate authority of the State or Territory, Puerto Rico, or
      the District of Columbia, whichever is concerned.

   /4/ The Militia Clause, a term customarily used to describe two
related enumerated powers, confers authority on Congress (U.S. Const.
I, Section 8, Cls. 15-16):

         To provide for calling forth the Militia to execute the Laws
      of the Union, suppress Insurrections and repel Invasions;  (and)

         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(.)

   /5/ The Army Clause gives Congress the power

         To raise and support Armies, but no Appropriation of Money to
      that Use shall be for a longer Term than two Years(.)

   /6/ We are providing petitioners' counsel with a copy of our brief
in opposition in Dukakis.

   /7/ In the Selective Draft Law Cases, 245 U.S. at 383, the Court
stated that the authority that the Militia Clause reserves to the
States "did not diminish the military power" conferred by the Army
Clause or "curb the full potentiality of the right to exert it";
thus, notwithstanding the Militia Clause, Congress's power under the
Army Clause is "complete to the extent of its exertion and dominant."
Similarly, in Cox v. Wood, 247 U.S. at 6, the Court reiterated that
Congress's powers to raise and support armies and to declare war "were
not qualified or restricted by the provisions of the militia clause."

   In reliance on these decisions, the Fifth Circuit held that units
of state national guards could be ordered to active duty in the NGUS
to serve abroad in Vietnam.  Johnson v. Powell, 414 F.2d 1060 (1969).

   /8/ Under the Militia Clause, U.S. Const. I, Section 8, Cl. 15, the
militia may be called forth only to "execute the Laws of the Union,
suppress Insurrections and repel Invasions."