Judge Says States Must OK Guard’s Use Abroad

A federal judge, ruling in a suit filed by Minnesota and backed by 10 other states, said Tuesday that governors have no constitutional authority to withhold consent for National Guard training missions in Central America or elsewhere.

Congress may exercise authority over the training of the National Guard while the guard is on active federal duty and must share that authority with the states only when the guard is not “employed in the service of the United States,” U.S. District Judge Donald Alsop said in a 14-page opinion.

Gov. Rudy Perpich immediately asked state Atty. Gen. Hubert H. Humphrey III to appeal, and Humphrey said that an expedited hearing before the U.S. 8th Circuit Court of Appeals will be requested.

“We feel very strongly about the states rights issue, and that is why we will be appealing. . . . “ Perpich said in a statement. “This is a clear example of the federal government’s encroaching on state powers that have worked effectively in the past.”

Minnesota attorneys unsuccessfully argued that an amendment sponsored by Rep. G. V. (Sonny) Montgomery (D-Miss.) to a bill signed into law by President Reagan on Nov. 14 unconstitutionally infringed on the right of states to control their militias.

The amendment provides that governors may withhold consent for foreign National Guard assignments only when the units are needed for local emergencies.

Humphrey said Minnesota will argue on appeal that the Constitution grants the states authority to train the guard in times of peace. Alsop, in his ruling, dismissed the state’s argument that Congress had training authority over the guard only in war.

“There is no basis for this distinction in the language of the Constitution,” he said.

Alsop also said Congress created gubernatorial power over guard assignments as an accommodation to the states and could withdraw the authority.