Commanding the National Guard

Commanding the National Guard

The Commander in Chief Clause reaches the state militia only on a condition: the President commands it "when called into the actual Service of the United States."¹ That condition moves the whole inquiry to the moment of federalization, because before that moment the militia belongs to the state and after it the militia answers to the President. Two questions follow, namely who controls that moment and whether a state governor may stand in its way. Article I supplies the textual answer. It gives Congress the power to provide for calling forth the militia to execute the laws, suppress insurrections, and repel invasions, and it also gives Congress the power to provide for organizing, arming, and disciplining the militia and for governing the part of it employed in the service of the United States.² The National Guard sits where those congressional powers meet each state's claim to its own militia, and a dispute over peacetime training missions abroad forced the Supreme Court to say how they fit together.

In Perpich v. Department of Defense the Governor of Minnesota challenged the "Montgomery Amendment" of 1986, which provided that a governor may not withhold consent to a Guard member's active duty outside the United States, its territories, and its possessions because of any objection to the location, purpose, type, or schedule of that duty.³ The amendment had kept the Governor from blocking a January 1987 training mission in Central America for members of the Minnesota Guard, and the Governor argued that it violated the Militia Clauses.⁴ Before 1986, a consent requirement enacted in 1952 had given governors a veto, so the real dispute was whether the veto was something the Constitution demanded or an accommodation Congress had granted and could take back. The question presented was whether Congress may authorize the President to order Guard members to active duty for training outside the United States during peacetime without either a governor's consent or a declaration of national emergency.⁵

The lower courts had divided over the answer. The district judge treated the gubernatorial veto as an accommodation to the states rather than a constitutional mandate, so Congress could withdraw it without violating the Constitution.⁶ A divided Eighth Circuit panel read the Militia Clauses as preserving state authority over training unless Congress determined that some exigency or extraordinary need required federal power, but the en banc court vacated that decision and agreed with the district judge that Congress's army power was plenary.⁷ The Supreme Court reached the same result. Congress may authorize the President to order Guard members into active federal service for training abroad in peacetime, without the governor's consent and without a national emergency.⁸ The reasoning has three links: the Guard's dual structure, the suspension of state status during federal duty, and the way the Militia Clauses add to Congress's power.

The structure of the Guard explains how a single person can answer to both a governor and the President. Federal statutes make every member of a state National Guard also a member of the National Guard of the United States, a reserve component of the national armed forces, and this arrangement is called the dual enlistment system.⁹ The district judge described the result as two overlapping but legally distinct organizations. One is the National Guard of the United States, which Congress created under its power to raise armies and which is made up of state units and their members. The other is each state's Guard, which is part of the militia described in Article I.¹⁰ The Court stressed that the dual system is a product of congressional choice: Congress is the source of the organized units into which the available pool of citizens has been formed, and its current dual-enlistment design is just as permissible as its 1792 choice to have militia members arm themselves.¹¹

Because each member holds both roles, the question becomes which role controls at a given moment, and the Court's answer is that the federal role controls once the member is ordered to active duty. During that period the member's state affiliation is suspended in favor of an entirely federal affiliation.¹² The reasoning follows from what the governor's claim rests on. A governor's authority over Guard members comes from their status as state militia, so when that status is suspended the authority has nothing to attach to for the length of the order. The member never serves two commanders on the same mission, and the training of a federal reserve force does not wait on the agreement of the state where the member happens to live.

A governor may reply that, before 1952, Guard members were traditionally not ordered into active service in peacetime or for duty abroad. The Court treated that tradition as at least partly the product of political debate and compromise. It added that even if the Constitution's text had compelled the tradition, its constitutional dimension would reach only service by state Guard personnel who retain their state affiliation, and dual enlistment presents a wholly different situation because that affiliation is suspended during active duty.¹³ The usual error is to treat the old practice as a constitutional rule that survives dual enlistment, when the practice described a world in which a Guard member entering service was still a state militiaman.

The third link is the Court's reading of the Militia Clauses themselves. Relying on the Selective Draft Law Cases of 1918, the Court explained that those clauses do not constrain Congress's powers to provide for the common defense, to raise and support armies, to make rules for the government and regulation of the land and naval forces, or to make the laws necessary and proper for carrying those powers into execution. Far from limiting those powers, the Militia Clauses are additional grants of power to Congress.¹⁴ The Governor pointed out that the draft cases arose during an actual war, and the Court accepted that fact but held that the reasoning was not so limited.¹⁵ The 1916 statute behind those cases had written the National Guard into the Army of the United States while in federal service, and membership in the militia gave no exemption from a valid order to perform federal service, whether as combat duty or as training for it.¹⁶

Each Militia Clause adds federal power in its own way. The first lets Congress call forth the militia to execute the laws, suppress insurrections, and repel invasions, and the Court assumed that Attorney General Wickersham was correct that a Guard unit that retains its status as a state militia could not be impressed as a whole for any other purpose.¹⁷ Congress had nonetheless authorized the President to call the Guard's entire membership into federal service during World War I, even though the soldiers who fought in France were engaged in none of those three purposes, so the call-forth power supplements the broader army and defense powers and does not limit them.¹⁸ The second clause enhances federal power in three further ways. It authorizes Congress to provide for organizing, arming, and disciplining the militia. It authorizes Congress to provide for governing the part of the militia employed in federal service, which surely covers continued training on active duty. And it reserves to the states the appointment of officers and the authority of training the militia only "according to the discipline prescribed by Congress."¹⁹ If effective service in the armed forces of a global power requires training in distant lands, Congress may prescribe it, and the state's subordinate authority to train before active duty does not include a right to edit the discipline Congress sets once members are ordered into federal service.²⁰

The rule also has a practical logic that can be read off its structure. A Guard unit is part of the nation's reserve force, so its readiness for war depends on training that is uniform and that Congress can direct. If any governor could veto training missions abroad, preparedness would turn on fifty separate local judgments, and the federal government's ability to prepare for war would rest on decisions it does not control. Dual enlistment resolves the tension by dividing the two roles in time. The state keeps its Guard while the member serves the state, the federal government has the member once ordered to federal duty, and the constitutional protections for the state militia remain intact because they concern units that retain state status.

The two poles of the rule appear in the Court's own account. In Perpich, Minnesota Guard members were ordered, over the Governor's objection, to a peacetime training mission in Central America, and because they were called into federal service as members of the National Guard of the United States, the Militia Clauses required no gubernatorial consent.²¹ The other pole is the Guard unit that remains in state militia status, which the Court assumed Congress could not impress for a purpose outside the three the call-forth clause lists. Wickersham's analysis would have barred even a consensual call-forth for training abroad, and the Court noted that it assumed the units would keep their separate state status during federal service.²² Congress has kept the two routes apart by statute as well: separate provisions authorize activating the National Guard of the United States and calling forth the militia, including the state Guards, and when state Guard units are called forth the orders are issued through the governors.²³

The case belongs in this chapter because it shows who holds the key to the clause's condition. The President commands the militia only after it is called into actual federal service, and Perpich locates control of that moment in Congress, which decides by statute whether and how Guard members may be ordered into federal service and whether governors receive any veto at all. The decision is a congressional-power case. Its reasoning rests on Article I's grants for raising armies, providing for the common defense, and governing forces in federal service, and it never claims an inherent authority of the President as commander in chief. In the vocabulary of Youngstown, the President acts on authorization from Congress, the setting in which presidential authority is at its maximum, so the opinion has no occasion to ask how much command power the President holds alone. A reader who treats Perpich as an expansion of presidential power will misplace the source of the authority, and a reader who treats the Militia Clauses as shields for the states will miss the Court's holding that they add to federal power.