Full opinion text
MAGILL, Circuit Judge. In this opinion, we address a challenge to the constitutionality of the Montgomery Amendment, which restricts the power of state governors to withhold consent to federal deployment of the National Guard of the United States. We hold that the Constitution does not require gubernatorial consent to active duty for training of the National Guard of the United States. Based on the statutory system of dual enlistment and the relationship between the Constitution’s army and militia clauses, we find the Montgomery Amendment to be a constitutional exercise of congressional power. I. In 1985 and 1986, several governors objected to deployment of National Guard personnel to Central America. The governors withheld (or threatened to withhold) their consent to federally ordered active duty missions by their States’ National Guards. 10 U.S.C. § 672(b), (d) (1982). In response, Congress enacted the Montgomery Amendment, which prohibits the governors from withholding consent to active duty outside the United States because of objections to the location, purpose, type, or schedule of active duty. Id. § 672(f) (Supp. IV 1986). Members of the Minnesota National Guard participated in three active duty training missions in Central America in January 1987. After the Guard returned, Governor Rudy Perpich, the Commander in Chief of the State’s military forces, objected to defendants’ ordering the Guard to active duty for training in Honduras. Because Perpich wanted to withhold consent to further orders, the Governor and the State of Minnesota filed this suit. Perpich sought a declaration of the governors’ constitutional authority to withhold consent to peacetime training of the Guard outside of the United States. Perpich asked specifically for a declaration that the Montgomery Amendment infringes “the Authority of training the Militia” reserved to the States by the Constitution. U.S. Const. art. 1, § 8, cl. 16. Perpich also sought to enjoin any federal order commanding members of the Minnesota unit of the National Guard to active duty for training outside of the United States without Perpich’s consent. The district court, in a well-reasoned opinion, held that the dual enlistment system, under which Guard members enlist and serve in both the state National Guard and the federal National Guard of the United States, was a necessary and proper exercise of Congress’ power to raise and support armies. Perpich v. United States Department of Defense, 666 F.Supp. 1319, 1323 (D.Minn.1987). The court also held that the States’ authority to train the militia did not inhibit Congress’ power to provide for active duty training of the National Guard of the United States without the governors’ consent. Perpich, 666 F.Supp. at 1325; accord Dukakis v. United States Department of Defense, 686 F.Supp. 30, 38 (D.Mass.), aff'd, 859 F.2d 1066 (1st Cir.1988) (per curiam), cert. denied, — U.S. -, 109 S.Ct. 1743, 104 L.Ed.2d 181 (1989). The court granted summary judgment to defendants, and Perpich appealed. A divided panel of this court reversed, holding that the Montgomery Amendment violated the constitutional reservation of state authority to train the Militia, and that National Guard personnel could not be ordered to active duty for training without the consent of the States unless the Congress or the President first declared a national security emergency or exigency. Perpich v. United States Department of Defense, No. 87-5345, slip op. (8th Cir. Dec. 6, 1988). On January 11, 1989, this court granted rehearing en banc, thus vacating the opinion of the panel. We now affirm the judgment of the district court upholding the constitutionality of the Montgomery Amendment. II. This case involves conflicting assertions of sovereignty by the state and national governments. Perpich claims the constitutional authority to withhold consent for National Guard training outside the United States in peacetime. The Department of Defense contends that, when Congress acts under its constitutional power to raise and support armies, it may authorize active duty to train reserve forces without infringing the States’ authority over militia training. The Department of Defense also contends that a governor’s decision to withhold consent based on objections to the location or purpose of Guard training would infringe the national government’s exclusive authority to conduct the national defense. Today, the militia (with a number of exceptions of no importance here) consists of all able-bodied male citizens ages 17 to 45 and of female citizens who are commissioned officers of the National Guard. 10 U.S.C. § 311(a). The militia is divided into two classes, the organized militia and the unorganized militia. Id. § 311(b). The National Guard is the organized militia of the several States. Id. § 101(10), (12). The National Guard of the United States (NGUS) consists of the members of the National Guard or organized militia who are also enlisted in a reserve component of the United States Army or Air Force. Id. § 261. In 1933, Congress established the National Guard of the United States as a component of the Army of the United States. Act of June 15, 1933, ch. 87, § 5, 48 Stat. 155. The National Guard of the United States consisted of the federally recognized members and units of the National Guard of the several States. Id. The 1933 Act created a dual enlistment system, id., §§ 7-11, 48 Stat. 156-57, whereby “an incoming guardsman joined both the National Guard of his home state and the National Guard of the United States, a reserve component of the U.S. Army.” Johnson v. Powell, 414 F.2d 1060, 1063 (5th Cir.1969). The President was authorized to order any or all units or members of the National Guard of the United States into active military service, if Congress first declared a national emergency and authorized the use of armed land forces in excess of the number of regular troops. Act of June 15, 1933, ch. 87, § 18, 48 Stat. 160. In establishing the National Guard of the United States, Congress invoked its army clause powers. H.R.Rep. No. 141, 73d Cong., 1st Sess. 3-4 (1933); see generally Weiner, The Militia Clause of the Constitution, 54 Harv.L.Rev. 181, 187 (1940). In 1952, Congress enacted the legislative forerunners of 10 U.S.C. § 672(b) and (d) as part of a comprehensive strengthening of the armed forces’ reserve components. Armed Forces Reserve Act of 1952, ch. 608, § 233(c), (d), 66 Stat. 481, 490. See S.Rep. No. .1795, 82d Cong., 2d Sess. (1952), reprinted in 1952 U.S.Code Cong. & Admin. News 2005. The Army National Guard of the United States and the Air National Guard of the United States were designated as reserve components in the Ready Reserve of the Army and Air Force, respectively. Armed Forces Reserve Act of 1952, §§ 202, 208(c), 66 Stat. at 483-84. Today, Congress authorizes active reserve duty for the National Guard of the United States in a variety of circumstances. The Army and Air National Guard of the United States, established and maintained under Congress’ army power, function as reserves in the United States Army and Air Force “to provide trained units and qualified persons available for active duty in the armed forces, in time of war or national emergency and at such other times as the national security requires.” 10 U.S. C. § 262. Under the “Total Force” structuring of American military forces, reserve components, including the National Guard of the United States, are fully integrated with regular active forces in the national defense. See H.R.Rep. No. 1069, 94th Cong., 2d Sess. 325, reprinted in 1976 U.S.Code Cong. & Admin.News 1034, H.R.Rep. No. 107, 98th Cong., 1st Sess. 202 (1983). For example, the Army National Guard of the United States provides forty-six percent of the combat units and twenty-eight percent of the support forces of the total Army. The Army National Guard of the United States would provide eighteen of the twenty-eight army divisions, wholly or in part, in the event of full mobilization. The Air National Guard of the United States provides seventy-three percent of air defense interceptor forces, fifty-two percent of tactical air reconnaissance, thirty-four percent of tactical air lift, twenty-five percent of tactical fighters, seventeen percent of aerial refueling, twenty-four percent of tactical air support, and other forces. Supp.Jt.App. at 5 (reprinting Hearings On Federal Authority Over National Guard Training Before the Subcommittee on Manpower and Personnel of the Senate Committee on Armed Service, 99th Cong., 2d Sess. (1986) (testimony of James H. Webb, Jr.)). Article 1, section 8, clause 12 gives Congress the power “to raise and support Armies * * Clause 16 “reserves] to the States respectively the Authority of Training the Militia according to the discipline prescribed by Congress.” Minnesota asserts its sovereignty over the organized militia, legally constituted as the Minnesota Units of the Army and Air National Guards. Defendants assert their authority over enlisted members of the National Guard of the United States. We consider whether Congress’ qualification of the governor's consent provisions in section 672 infringes the States’ “Authority of training the Militia according to the discipline prescribed by Congress.” The issue, simply put, is this: when the State claims a right' to control Militia training, and Congress claims ‘We’re training the Army, not the Militia,’ who wins? The authority given to Congress by the army clause is plenary and exclusive. Tarble’s Case, 80 U.S. (13 Wall.) 397, 408, 20 L.Ed. 597 (1872). In the Selective Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349 (1918), the Court observed that “complete authority” over the “army sphere” was “conferred in all its plenitude” to Congress, with the exertion of that power “wisely left to depend upon the discretion of Congress as to the arising of the exigencies which would call it in part or in whole into play.” 245 U.S. at 382-83, 38 S.Ct. at 163. More recently, the Court has observed that “the constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping.” United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). The dual enlistment system, under which Guard members enlist and serve in both a state National Guard and the federal National Guard of the United States, is a necessary and proper exercise of Congress’ army power. Perpich, 666 F.Supp. at 1323. See also Dukakis v. United States Department of Defense, 686 F.Supp. 30 (D.Mass.), aff'd, 859 F.2d 1066 (1st Cir.1988) (per curiam); Johnson v. Powell, 414 F.2d 1060, 1063 (5th Cir.1969); Drifka v. Brainard, 294 F.Supp. 425 (W.D.Wa.1968). Congress’ establishment of the ready reserve and authorization of active duty, for training or otherwise, also falls within the lawful scope of the army power, as an exercise of congressional discretion in prescribing the exigencies of military training and discipline. See Chappell v. Wallace, 462 U.S. 296, 300, 103 S.Ct. 2362, 2365-66, 76 L.Ed.2d 586 (1983). Here Guard units were ordered into federal service for training in Central America in their role as the National Guard of the United States, a ready reserve component of the United States Army. The statutes authorizing this federal action are statutes grounded upon the army clause. These actions are beyond the reach of the militia clause. While we could well conclude at this point, the vigorous argument of Perpich makes it proper that we further consider the scope of the militia clause. III. In the Selective Draft Law Cases, the Supreme Court upheld Congress’ authority to draft individuals into the United States Armed Services, notwithstanding their status as National Guard members already in the service of the United States. The Court held that Congress’ power to conscript for the army under its authority to raise and support armies and to declare war was not confined to the express provisions for calling forth the militia. The Court reasoned that the one delegation of power to Congress (to call forth the militia) did not circumscribe the operation of another delegated power (to raise armies). 245 U.S. at 384, 38 S.Ct. at 163. Thus, the Supreme Court has made clear that the army clause is not limited by the militia clause: There was left therefore under the sway of the States undelegated the control of the militia to the extent that such control was not taken away by the exercise by Congress of its power to raise armies. This did not diminish the military power or curb the full potentiality of the right to exert it but left an area of authority requiring to be provided for (the militia area) unless and until by the exertion of the military power of Congress that area had been circumscribed or totally disappeared. This, therefore, is what was dealt with by the militia provision. * * * But because under the express regulations the power was given to call [the Militia] for specified purposes without exerting the army power, it cannot follow that the latter power when exerted was not complete to the extent of its exertion and dominant. Because the power of Congress to raise armies was not required to be exerted to its full limit but only as in the discretion of Congress it was deemed the public interest required, furnishes no ground for supposing that the complete power was lost by its partial exertion. Because, moreover, the power granted to Congress to raise armies in its potentiality was susceptible of narrowing the area over which the militia clause operated, affords no ground for confounding the two areas which were distinct and separate to the end of confusing both the powers and thus weakening or destroying both. 245 U.S. at 383-84, 38 S.Ct. at 163. Cox v. Wood, 247 U.S. 3, 6, 38 S.Ct. 421, 421-22, 62 L.Ed. 947 (1918), further explained the relationship between the two clauses: [T]he constitutional power of Congress to compel the military service which the assailed law commanded was based on the following propositions: (a) That the power of Congress to compel military service and the duty of the citizen to render it when called for were derived from the authority given to Congress by the Constitution to declare war and to raise armies, (b) That those powers were not qualified or restricted by the provisions of the militia clause, and hence the authority in the exercise of the war power to raise armies and use them when raised was not subject to limitations as to use of the militia, if any, deduced from the militia clause. And (c) that from these principles it also follows that the power to call for military duty under the authority to declare war and raise armies and the duty of the citizen to serve when called were coterminous with the constitutional grant from which the authority was derived and knew no limit deduced from a separate, and for the purpose of the war power, wholly incidental, if not irrelevant and subordinate, provision concerning the militia, found in the Constitution. Looking particularly to the Selective Draft Law Cases, the district court here, as well as that in Dukakis, concluded that the states’ authority reserved in the militia clause does not apply to the period during which members are on active duty as a part of the National Guard of the United States. The Dukakis court made it clear that it did not read the Selective Draft Law Cases as a sweeping declaration that Congress is, in all circumstances, authorized by the army clause to bypass the reservation of power to the states in the militia clause. Faced with circumstances identical to those here, however, Dukakis held: Nevertheless, guided by the decisions in the dual-enlistment cases as well as Selective Draft Law Cases, I conclude that the reservation of power to the states over “the Authority of training the Militia according to the discipline prescribed by Congress,” expressed in the Militia Clause, does not override the legitimately exercised power of Congress “[t]o raise and support Armies.” 686 F.Supp. at 37. As in Dukakis, the district court in Perpich held that the dual enlistment system is a valid exercise of congressional power under the army clause and the necessary and proper clause. Because the authority to provide for national defense is plenary, the militia clause cannot constrain Congress’ authority to train the Guard as it sees fit when the Guard is operating pursuant to the army clause. Perpich v. United States Dep’t of Defense, 666 F.Supp. 1319, 1323-24 (D.Minn.1987). As the militia clause does not limit Congress’ authority to train the National Guard of the United States while it is in active service, the gubernatorial veto is not constitutionally required. Id. at 1324. We are satisfied that the district court was correct in this holding. 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. The judgment of the district court is affirmed. .Reserve units and members of the National Guard of the United States may be activated "at any time * * * for not more than fifteen days a year,” but not without the governor’s consent: 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, Puerto Rico, or the Canal Zone, or the commanding general of the District of Columbia National Guard, as the case may be. 10 U.S.C. § 672(b) (emphasis added). An individual reservist may be ordered to and retained on active duty "at any time” with the consent of both the reservist and the governor of his state guard: 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, the Canal Zone, or the District of Columbia, whichever is concerned. Id. § 672(d). . The Montgomery Amendment, section 522 of the Defense Authorization Act for Fiscal Year 1987, provides: The consent of a Governor described in subsections (b) and (d) 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. 10 U.S.C. § 672(f) (Supp. IV 1986). . The defendants, the Departments of Defense, Army, and Air Force and their Secretaries, and the National Guard Bureau and its Chief, are the individuals and entities authorized to order reserves to active duty under § 672(b) and (d). We take judicial notice that other members or units of the Minnesota Guard have been or may be ordered to active duty for reserve training in Central America. . The Honorable Donald J. Alsop, United States District Judge for the District of Minnesota. . The States of Colorado, Maine, Massachusetts, Ohio and Vermont appear jointly as amici curiae in support of appellants. The National Guard Association of the United States (supported by the states of Alabama, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Nevada, New Mexico, Oklahoma, Rhode Island, South Carolina, South Dakota, Texas, Utah, Wisconsin, and the Adjutants General Association of the United States and the Enlisted Association of the National Guard of the United States), the Firearms Civil Rights Legal Defense Fund, and the Military Order of the World Wars appear separately as amici curiae in opposition to appellants. . "The term 'National Guard’ means the Army National Guard and the Air National Guard." Id. § 101(9). “Army National Guard” means: that part of the organized militia of the several States and Territories, Puerto Rico, the Canal Zone, and the District of Columbia, active and inactive, that— (A)is a land force; (B) is trained, and has its officers appointed, under the sixteenth clause of section 8, article I, of the Constitution; (C) is organized, armed, and equipped wholly or partly at Federal expense; and (D) is federally recognized. Id. § 101(10). "Air National Guard” defines a like air force. Id. § 101(12). Parallel definitions are found at 32 U.S.C.A. § 101(4) (Army National Guard), (6) (Air National Guard). In this opinion we use “the Guard” to refer generally to the dually enlisted organized militia, adhering elsewhere to current statutory definitions in referring to the National Guard of the several States and the National Guard of the United States. ." ‘Army National Guard of the United States’ means the reserve component of the Army all of whose members are members of the Army National Guard.” 10 U.S.C. § 101(11). ‘"Air National Guard of the United States’ means the reserve component of the Air Force all of whose members are members of the Air National Guard.” Id. § 101(13). . In addition to the provisions of § 672(b) and (d), Reserves may be ordered to active duty in the following circumstances: reserves may he ordered to active duty "in time of war or national emergency declared by Congress," for up to six months beyond the duration of the war or emergency, 10 U.S.C. § 672(a); active duty for up to twenty-four months is authorized if the President declares a "national emergency,” id. § 673(a); the President may order a reservist to active duty for up to twenty-four months, if performance of his statutory reserve obligation has been delinquent or unsatisfactory, id. § 673a(a); active duty for up to ninety days is authorized if the President "determines it is necessary to augment active forces for any operational mission,” id. § 673b(a); and commissioned officers of the Army National Guard of the United States may be ordered, with their consent, to active duty in the National Guard Bureau, id. § 3496(a).
HEANEY, Senior Circuit Judge, with whom McMILLIAN, Circuit Judge, joins, dissenting. I. Introduction With a few strokes of the word processor, the majority has written the Militia Clause out of the United States Constitution. In so doing, it contradicts the clear intent of the founding fathers, who believed that state control over elements of the military was essential to a free and peaceful republic. To this end, they gave the states a degree of power over the militia, which they intended to be a significant element of our national defense. The majority ignores the unambiguous language of the Constitution, and disregards the historical construction given to the Militia Clause and the Army Clause by the three branches of the federal government and the states. The plain and unassailable fact is that, until Congress tacked the Montgomery Amendment on to a defense appropriations bill, it was not responsibly asserted that Congress had the power under the Constitution to require the National Guard to participate in peacetime training missions without the consent of the governor of the affected state. The majority relies on the Selective Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349 (1918), for the proposition that the Militia Clause imposes no limits on the power of Congress to declare war and raise armies. It neglects to note, however, that in those cases the Supreme Court merely held that Congress could require compulsory military service during wartime. The Supreme Court neither held nor suggested in that or any other ease that Congress could require the National Guard to engage in training missions during peacetime without gubernatorial consent. The majority places great reliance on the 1933 amendments to the National Defense Act. In that legislation, Congress determined that the Army of the United States would consist of the regular Army, the National Guard of the United States, the state National Guard while in the service of the United States, the Officer Reserve Corps, the organized Reserve and the enlisted Reserves. It adopted the amendments to alleviate the necessity of drafting individual members of the National Guard into the army by allowing them to be called into service in whole units in the “event of war or other national emergency so declared by Congress.” The act states in section 111 that: When Congress shall have declared a national emergency and shall have authorized the use of armed land forces * * * the President may * * * order into the active military service of the United States, to serve therein for the period of the war or emergency, * * * any or all units and the members thereof of the National Guard of the United States. 48 Stat. at 160. In the absence of war or national emergency, Congress left state control over the militia intact. The majority’s final argument is that the requirements of the modern Army are such that the Defense Department must have absolute power to order the National Guard to participate in peacetime training without gubernatorial consent. This assertion is not supported by any facts. To the contrary, the record shows that the efficiency of the National Guard has not been affected at all by the refusal of one or more governors to consent to a particular mission. Moreover, if in the future there is a danger that non-consent would affect our national security, a national emergency may be declared, as President Reagan did during the recent raid on Libya. See Exec. Order No. 12,543, reprinted in Dept.St. Bull. 37-38 (March 1986). This is a small price to pay for compliance with the Constitution. I initially turn to the intent of the framers. II. The Intent of the Framers A. The Militia Clauses The military power of the United States is based on a system of checks and balances. The Framers divided authority over the military, not only between the coordinate branches of the federal government, but also between the federal and staté governments. The latter division is emphasized in several ways. First, because of the Framers’ fear that a large standing army would lead to military abuses by the federal government, state militias were intended to comprise the bulk of the nation’s defensive force. Second, control over these militias was explicitly shared between the federal government and the states. (The states were to appoint the militia’s officers and to control the actual training of militiamen.) Third, while the Framers did not want the states to make positive national policy in the areas of defense or foreign relations matters, they did intend the states to use their control over the militia to prevent the federal government, except in circumstances where national security was threatened, from using state troops in military undertakings objectionable to the states and their citizenry. Under the Articles of Confederation, the states were required to “keep up a well regulated and disciplined militia * * U.S. Arts, of Confed. art. VI. The central government had the power to declare war and the supervisory authority to order the states to produce quotas of armed and trained troops. Id., art. IX. This system proved unworkable. The states had too much independent power to resist the requests of the central government. The troops provided were often inadequately trained and equipped and thus difficult to coordinate into a cohesive and effective force. Thus, as the delegates assembled during the summer of 1787 to draft a more viable instrument of government, a pressing objective was the creation of a stronger, more reliable armed force. This aim was widely shared. The effort to find a specific solution, however, proved extremely divisive. From the outset, it was agreed that the problem would not be solved by the creation of a large, federally controlled standing army. The Framers identified such a force with British tyranny, potential oppression of states and individual citizens, and expensive, unpopular military adventures. Thus, while the Framers would ultimately provide for a standing army, they would limit its power by declaring that military appropriations had to be approved every two years. U.S. Const, art. I, § 8, cl. 12. More importantly, for the purposes of this discussion, the Framers stated their intent to have state militias provide for the nation’s basic defense, with reliance on a standing army only as a last resort. As a corollary to the decision to rely largely on the militia for the nation’s defense, it was believed necessary to provide a degree of federal control over these forces in order to achieve military effectiveness. The Convention rapidly agreed that the state militias would be placed under the control of the federal government in emergency situations, such as when insurrection or invasion was threatened, or when the militias were needed to enforce the laws of the country. See U.S. Const. art. I, § 8, cl. 15 (Clause 15) (“Congress shall have the power * * * [t]o provide for calling forth the Militia to execute the laws of the Union, suppress Insurrections and repel Invasions * * *.”). However, in other cases, the degree of control the federal government would exercise over state militias was a point of contention. Nationalist delegates believed in strong federal control of the state militias in order to create a dependable, coordinated defensive force. States-rights delegates profoundly opposed such federal power. These delegates voiced fears that powerful federal authority over the state militias would, like the existence of a large standing army, lead to military abuses by the new government. They particularly feared that such authority would allow the federal government to tyrannize defenseless individual states and their citizens and could leave the states without the means to meet their own public needs. The debate between these factions was vigorous, for neither extreme had sufficient support at the Convention for its position to prevail. After several months of discussion and many days of hard-fought exchange on the floor of the Convention, delegates, such as George Mason, began to seek a compromise which would provide the federal government with sufficient control over the militia to meet its defensive needs, while at the same time assuring the states sufficient authority to check the potential abuse of military power by the federal government. On August 21, 1787, the Convention was presented with a workable compromise. The new proposal provided the federal government the authority “[t]o make laws for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the U.S.,” while concurrently “reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by the U.States.” This compromise, with minor stylistic changes, was ultimately approved by the Convention. U.S. Const. art. I, § 8, cl. 16 (Clause 16). Delegate Hamilton declared that the authority to appoint officers was given to the states in order to secure for them “a preponderating influence over the militia.” The Federalist No. 29, at 185 (A. Hamilton) (J. Cooke ed. 1961) (Cooke). Moreover, the debates indicated that the training clause was retained in the text of the Constitution to ensure that the power to “organize, arm, and discipline” state forces given the federal government by the Militia Clauses did not surreptitiously extend federal control over the actual training of the militia. While this compromise would ultimately win the approval of a majority of the states present at the Convention, many states-rights advocates believed that the plan still granted the federal government too much authority. A recurrent claim was that the proposed clause allowed the federal government to abuse its military power by sending citizens far from home for indefinite periods in furtherance of military schemes objectionable to the states. Supporters of the compromise, in response, assured potential opponents that the national government would only send the militia away from home in emergencies, such as when invasion or rebellion was threatened, or when there was a need to execute the laws. See The Federalist No. 29, Cooke at 187. In other situations, they asserted, the states and the people would assure that the federal government did not abuse its control of the militia. Hamilton emphasized that the militia were under the “preponderating influence” of the states. Id. at 186. Thus, he continued, “What shadow of danger can there be from men who are daily mingling with the rest of their countrymen, and who participate with them in the same feelings, sentiments, habits, and interests?” Id. Hamilton concluded that, if the federal government attempted to send state troops on such adventures, its action would be based not on authority granted in the Constitution but rather on “imagined intrenchments of power.” He believed that the states and the people would not tolerate such clear violations of the law. Madison, in like manner, declared that the authority of the states “as coequal sovereigns,” together with the political power of the people, would form a significant check on the potential use of state militias for military adventures by the federal government. He stated: Can we believe that a government of a federal nature, consisting of many coequal sovereigns, and particularly having one branch chosen from among the people, would drag the militia unnecessarily to an immense distance. This, sir, would be unworthy of the most arbitrary despot. They have no temptation whatever to abuse this power; such abuse could only answer the purpose of exciting the universal indignation of the people, and drawing on themselves the general hatred and detestation of their country. 3 Elliot, supra note 2, at 381-82. B. The Guarantee of Republican Government Clause The Guarantee of Republican Government Clause provides: The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence. U.S. Const. art. IV, § 4. During the ratification debates, many of the delegates to the state conventions feared that the federal power to suppress domestic violence in individual states provided by this clause, together with the federal power over the militia set forth in Clauses 15 and 16, posed a serious threat to the states in the form of unchecked federal military power. James Madison responded forcefully to these suggestions and, in so doing, provided clear support for the principle that reserved state authority over the militia was designed as an explicit check on the potential abuse of military power by the federal government. In the Virginia convention, Madison stated: The authority of training the militia, and appointing the officers, is reserved to the states. Congress ought to have the power to establish a uniform discipline throughout the states, and to provide for the execution of the laws, suppress insurrections, and repel invasions: these are the only cases wherein they can interfere with the militia * * *. 3 Elliot, supra note 2, at 90 (emphasis added). Several days later, Patrick Henry declared that Clauses 15 and 16, together with the Guarantee of Republican Government Clause, gave the federal government “unbounded control over the national strength” and “unequivocally relinquished” the states’ control over their militias. Id. at 422-24. In like manner, William Gray-son repeatedly argued that under the proposed Constitution, Congress could call out the militia whenever it desired and thus there was “no check” on federal control over the militia. Id. at 417-18, 421. In response, Madison reasoned that practical necessities required dividing power over the militia between the federal government and the states. Following from this, he continued: If [power over the militia] must be divided, let him [Henry] show a better manner of doing it than that which is in the Constitution. I cannot agree with the other honorable gentleman [Grayson], that there is no check. There is a powerful check in that paper. The state governments are to govern the militia when not called forth for general national purposes; and the Congress is to govern such part only as may be in the actual service of the Union. Nothing can be more certain and positive than this. It expressly empowers Congress to govern them when in the Service of the United States. It is, then, clear that the states govern them when they are not. Id. at 424 (emphasis added). C. The Second Amendment The second amendment to the Constitution provides: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. U.S. Const. amend. II. This amendment was intended to reassure states-rights advocates who feared that the power of a large federal standing army would diminish the “security of a free state.” The second amendment guaranteed the perpetual existence of a viable militia as a continued check on the military power of the federal government. As the Supreme Court stated, “With the obvious purpose to assure the continuation and render possible the effectiveness of [the militia] the declaration and guarantee of the Second Amendment were made. [The second amendment] must be interpreted and applied with this in view." United States v. Miller, 307 U.S. at 178, 59 S.Ct. at 818 (emphasis added). D. The Framers’ View of the Interplay of the Army and Militia Powers The Constitution provides Congress with the power “To Raise and support Armies * * *,” U.S. Const. art. I, § 8, cl. 12, and the power “To make all Laws which shall je necessary and proper to carry into Execution [these powers] * * Id., cl. 18. In terms of the militia, Clause 15 provides that Congress shall have the power: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions * * *. Clause 16 gives Congress the further 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, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress. Id. (emphasis added). In The Federalist No. 23, Alexander Hamilton discussed the scope of the Constitution’s Army Clause in the following terms: The authorities essential to the care of the common defence are these — to raise armies — to build and equip fleets — to prescribe rules for the government of both — to direct their operations — to provide for their support. These powers ought to exist without limitation: Because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite; and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be co-extensive with all the possible combinations of such circumstances; and ought to be under the direction of the same councils, which are appointed to preside over the common defense. Whether there ought to be a Federal Government intrusted with the care of the common defence, is a question in the first instance open to discussion; but the moment it is decided in the affirmative, it will follow, that that government ought to be clothed with all the powers requisite to the complete execution of its trust. And unless it can be shown, that the circumstances which may affect the public safety are reducible within certain determinate limits; unless the contrary of this proposition can be fairly and rationally disputed, it must be admitted, as a necessary consequence, that there can be no limitation of that authority which is to provide for the defence and protection of the community, in any matter essential to its efficacy; that is, in any matter essential to the formation, direction or support of the NATIONAL FORCES. The Federalist No. 23, Cooke at 147-48 (emphasis modified). The government asserts, and the majority implicitly accepts the view, that this passage indicates the Framers believed the power to raise armies could supersede reserved state authority over the militia at will. I am unable to find a word in discussions leading to the adoption of the Militia Clause that supports this interpretation. First, in this essay, Hamilton was writing of the “army power.” There is no reference — of any kind — in The Federalist No. 23 to the interaction of the army power with the militia power. There is no reference to the militia or to the Militia Clauses at all. Second, when Hamilton discusses the militia power in The Federalist No. 29, he directly contradicts the interpretation the government gives The Federalist No. 23. Strange as it may now seem, the Framers feared that if the militia did not exist to protect state interests, the army might be used by the federal government to oppress the states and their citizens. Thus, Hamilton, in The Federalist No. 29 (along with Madison in The Federalist No. 46), declared that an essential purpose behind the states’ reserved authority over the militia was to guard against the dangers of the federal army. Hamilton could not have meant that the Army Clause has the power to supersede the reserved state authority over the militia at will. If the federal government could use the army power at will to make the militia a federal force under its plenary control, then the Militia Clauses could not serve their intended purpose to protect the states against potential oppression by the federal army. Given the basic nature of this contradiction (and the fact that The Federalist No. 23 does not even discuss the militia), it is likely that Hamilton was simply writing about the broad authority of the army power to serve the national defense, without reference to the militia power. Alternatively, The Federalist Nos. 23 and 29 can be read together to allow the army power to supersede the militia power in more tightly confined circumstances. Hamilton, in The Federalist No. 23, speaks of the broad and unhindered sweep of the army power very clearly in the context of unforeseeable “national exigencies,” or, phrased in other ways, in terms of the “circumstances that endanger the safety of nations,” or “circumstances which may affect the public safety.” Clearly, these phrases are significant to Hamilton, and by reading such a “national exigency” as a necessary requirement before the Army Clause can supersede state authority over the militia in peacetime, the seemingly contradictory messages of The Federalist No. 23 and The Federalist Nos. 29 and 46 are harmonized. If the authority of the Army Clause to supersede the reservation of state authority in the Militia Clauses is limited to “national exigencies” or “circumstances that endanger the safety of the nation,” federal power over the militia can only “trump” the state power when the whole union, or the national interest, is in some way threatened. If such a threat did not exist, the states would then be protected from the oppressive exercise of federal authority by the Militia Clauses. Certain powers, such as reserved state authority over the militia, were enumerated in the Constitution in order to be insulated from uncontrolled and potentially irresponsible short-term political reaction. Such powers represented fundamental structural decisions by the Framers, based on their view of political society. They realized that, unless insulated, these powers could be eliminated in the heat of the moment by ill-considered political reactions. See The Federalist No. 10 (J. Madison). III. The Text of the Constitution The plain language of Article I, Section 8, Clause 16 of the Constitution “reserves] to the States respectively * * * the Authority of Training the Militia * * *.” This is an unambiguous command in the text of the Constitution which we cannot ignore. The second amendment to the Constitution provides that, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms is not infringed.” This amendment mandated the states to keep troops as a check on the power of the federal government as a matter of constitutional law. United States v. Miller, 307 U.S. at 178, 59 S.Ct. at 818; see also, Should I Stay or Should I Go, supra note 15 at 176, 203. When read together with Clause 16, the second amendment clearly opposes the power of Congress to raise armies at will. The clauses, however, can be readily harmonized if we accept the concept that the power of Congress over the National Guard is supreme only in times of war or a declared national emergency. IV. The Decided Cases A. The Supreme Court The majority reads the Selective Draft Law Cases, supra, and Cox v. Wood, 247 U.S. 3, 38 S.Ct. 421, 62 L.Ed. 947 (1918), to permit, if not to require, its holding. I find no support for the majority’s view in these cases. The Selective Draft Law of May 18,1917, ch. 15, 40 Stat. 76, was passed shortly after Congress had declared war on Germany. The act unambiguously recites that the country was faced with an “emergency, which demands the raising of troops in addition to those now available.” 40 Stat. at 76. In the Selective Draft Law Cases, the Court concluded: [T]he possession of authority to enact the statute must be found in the clauses of the Constitution giving Congress power “to declare war; ... to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; ... to make rules for the government and regulation of the land and naval forces.” Article I, § 8. And of course the powers conferred by these provisions like all other powers given carry with them as provided by the Constitution the authority “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” Article I, § 8. 245 U.S. at 377, 38 S.Ct. at 161 (emphasis added). The Supreme Court held that the conscription statute passed under the powers to declare war and to raise and support armies, together with all the other military powers available to the federal government, gave the federal government authority to conscript male citizens. Further, it held that this authority was not limited by the states’ reserved authority over the militia. The Court’s holding was succinctly summarized four months later in another opinion, on a closely related issue. Chief Justice White wrote: [0]n the face of the opinion delivered [in the Selective Draft Law Cases ] the constitutional power of Congress to compel military service * * * was based on the following propositions: (a) That the power of Congress to compel military service and the duty of the citizen to render it when called for were derived from the authority given to Congress by the Constitution to declare war and to raise armies. (b) That those powers were no qualified or restricted by the provision of the militia clause, and hence the authority in the exercise of the war power to raise armies and use them when raised was not subject to limitations as to use of the militia, if any, deduced from the militia clause. And (c) that from these principles it also follows that the power to call for military duty under the authority to declare war and raise armies, and the duty of the citizen to serve when called were coterminous with the constitutional grant from which the authority was derived and knew no limit deduced from a separate, and for the purpose of the war power, wholly incidental if not irrelevant and subordinate, provision concerning the militia, found in the Constitution. Cox v. Wood, 247 U.S. at 6, 38 S.Ct. at 422 (emphasis added). Neither of the cases supports the majority’s opinion. The Court simply declared that in war the federal government can use all its military powers combined to supersede the states’ reserved authority over the militia. The Selective Draft Law Cases are also distinguishable because the conscription statute at issue drafted the members of the National Guard (militia) into the army as citizens, not as militiamen. For this reason, the government argued that the power to draft citizens in no way infringed upon the reserved rights of the states over the militia, and thus the Court did not have to reach the militia clause arguments. See Selective Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, 352 (1918) (summary of oral argument). See also Friedman, supra note 2, at 1496 and Comment, supra note 2, at 624 & n. 157. The language in the Selective Draft Law Cases concerning the interplay of the army and militia powers begins with the Court noting that an improved understanding of the scope of these provisions can be gained oy comparing the powers of the federal government before and after the Constitution was ratified. Under the Articles of Confederation, Congress had the right “to call on the states for forces.” 245 U.S. at 382, 38 S.Ct. at 163. Correspondingly, the states had an inescapable duty to furnish troops when called. This “embraced the complete power of government over the subject.” Id. The Court analogized this power to the authority to raise armies under the Constitution. Following immediately on the heels of this description of “the army sphere,” however, the Court explicitly cautioned that this power was not controlling over the states. Rather, its use was confined to those “exigencies” in which Congress, in its discretion, saw fit to use the power. The Court stated: But the duty of exerting the power thus conferred in all its plentitude was not made at once obligatory but was wisely left to depend upon the discretion of Congress as to the arising of the exigencies which would call it in part or in whole into play. Id. at 382-83, 38 S.Ct. at 163 (emphasis added). The Court then continued its comparison of the Articles of Confederation to the Constitution. Under the Articles, the Court declared, there was an open area of authority that, in the absence of the proper exercise of the power to raise armies, left the states with control over the militia. This control was, in the Court’s view, analagous to the authority reserved to the states under the militia provisions of the Constitution. The Court next explained that the Militia Clauses also provided further positive powers to Congress. The Court noted that Clause 15 allowed Congress to make use of the militia when insurrection or invasion was threatened and to execute the laws. Clause 16 also provided Congress with some power over the organization and training of state militias. The Court carefully declared, however, that the Militia Clause left the specific “carrying out of’ (i.e., the specific authority over) the organization and training of the militia to the states. Id. at 383, 38 S.Ct. at 163 (emphasis added). The Court found that these “fine-tuned” powers given to Congress in the Militia Clauses were created to “diminish” or limit the use of the awesome army power — and its attendant dominance over state authority — to those situations in which the exercise of such vast power was strictly necessary. Id. at 383, 38 S.Ct. at 163. In concluding, the Court emphasized the care required in interpreting the conflicting authority of the army and militia provisions of the Constitution. It was true, said the Court, that the Militia Clauses provided Congress other ways, in addition to the Army Clause, to exert power over the militia. These other grants of positive authority, however, did not diminish the strength of the army power which, once properly exerted — or in the Court’s words, exerted “only as in the discretion of Congress it was deemed the public interest required ” —was “complete and dominant.” Id. at 383-84, 38 S.Ct. at 163 (emphasis added). Following from this, the Court found that the army power, when properly exercised, could “potentially” narrow the power of the Militia Clauses. There was no suggestion, however, that, absent an exigency,, the integrity of the Militia Clauses could be compromised. The Court carefully emphasized that the army and militia powers were “distinct and separate,” that both comprised meaningful areas of authority, and that neither area was to be “weakened or destroyed” by construing the other power too broadly. Id. at 384, 38 S.Ct. at 163. B. The Lower Federal Courts The majority cites two cases, Johnson v. Powell, 414 F.2d 1060 (5th Cir.1969), and Drifka v. Brainard, 294 F.Supp. 425 (W.D.Wash.1968), in support of its view that the Montgomery Amendment is constitutional as a necessary and proper exercise of Congress’ army power. I doubt the validity of this view. Johnson and Drifka both arose during the Vietnam War where there was a declaration of national exigency. In Johnson, National Guardsmen challenged the constitutionality of Pub.L. No. 89-687, 80 Stat. 981 (1966). This statute, enacted in the midst of the Vietnam War, provided the President with temporary authority, based upon a determination of presidential necessity, to order a member of the National Guard of the United States to active duty for up to 24 months. The Guardsmen alleged, inter alia, that the statute violated Clause 15. Specifically, they asserted that, because the duty did not fall within the powers granted Congress in that clause (i.e., the duty did not involve insurrection, invasion, or the need to execute the laws), the statute was unconstitutional. The Court responded to this claim by stating that Pub.L. No. 89-687 was not enacted under the authority of Clause 15, but rather under the dual enlistment system which was based on the army power and the Necessary and Proper Clause. Congress, two years prior to the enactment of Pub.L. No. 89-687, had declared the presence of a “national exigency” in the “Gulf of Tonkin Resolution.” See Act of August 10, 1964, Pub.L. No. 88-408, 78 Stat. 384 (1964). In this resolution, Congress specifically found that the “deliberate and repeated” attacks on United State naval vessels in Southeast Asian water. “created a serious threat to international peace.” It further declared that the “United States regards as vital to its national interest * * * the maintenance of international peace and security in southeast Asia.” Therefore, the Congress declared its readiness, “[cjonsonant with the Constitution of the United States * * *, as the President determines, to take all necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its freedom.” Id. This statement of exigency, together with the exercise of the congressional powers to raise armies and to make laws under the Necessary and Proper Clause, provides a constitutional basis for Pub.L. No. 89-687. The Johnson court indirectly acknowledged that Pub.L. No. 89-687 was motivated by a threat to the national security. The Court stated that the “purpose” of the law was to make National Guard troops available to the federal government when the “national security” was threatened. 414 F.2d at 1063-64. V. The National Exigency Requirement Like the Supreme Court in the Selective Draft Law Cases, this Court is now faced with the interplay of two constitutional provisions which have the potential to conflict in their exercise. Both have power and purpose, and thus in harmonizing these provisions, we must attempt to preserve as much of the authority of each as we sensibly can. If the federal government can make the militia a federal force at will, the militia’s Atended purpose as a check on federal military power will be frustrated. Moreover, the Framers' intent — particularly in light of the structure of the Militia Clauses —cannot be fairly read to support plenary federal control of the militia, absent a threat to the national security. The majority declares that, under the Army Clause, the federal government can make the militia a federal force at will. It says that it can do this because the militia has been changed into: (1) the National Guard, and (2) the National Guard of the United States (NGUS). Thus, the majority argues that when the militia is ordered to put on its NGUS hat, it is available to the federal government any time the federal government wants, to do anything the federal government desires. This cannot be right. A power that the Constitution explicitly enumerates as a state power — a state power designed to check federal power and to protect the states from the exertion of federal power — cannot through “a mere form of words” be transformed into an unchecked instrumentality of federal power. Based on these considerations, I conclude, as did the Court in the Selective Draft Law Cases, that before the federal government can exercise its army power to supersede the reserved state authority over the militia, its actions must be motivated by a “national exigency.” Implied in this requirement, to assure its observance, is the necessity of an affirmative declaration. Thus, before the legislative or executive branch can use the authority of the Army Clause to overcome reserved state authority over the National Guard, Congress or the President must first affirmatively assert the existence of a national exigency or of a specific threat to the national security. The power to determine the existence of such circumstances belongs only to Congress or the President. Once this power is exercised, the substance of the determination cannot be challenged by the states or by individual National Guard members sent into federal service. See Martin v. Mott, 25 U.S. (12 Wheat.) 19, 30, 6 L.Ed. 537 (1827). Such a challenge would involve a central “political question,” see Baker v. Carr, 369 U.S. 186, 213, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962), and would hence not be justiciable. It might be argued that the necessity of an affirmative declaration is thus meaningless. I believe, however, it is a serious undertaking for the President or for Congress to declare a national emergency. Such a declaration alerts the coordinate branches of government, the states, the citizens of the nation, and the nations of the world that the United States believes its interests are threatened and that it is prepared to take appropriate steps. It may at times be politically distasteful to an incumbent administration or to Congress to declare a national emergency, but ours is an open society and experience teaches that in matters of great import, support of the citizenry is essential. VI. From the Militia to the National Guard Over the last eighty-five years, the federal government has gradually assumed greater control over the state militias. Congress has, however, consistently recognized th