Court Rules for State Control of National Guard : Says Law Stripping Governors of Power Is Unconstitutional

A federal law that stripped governors of their power to veto National Guard training missions dictated by the federal government is unconstitutional, a federal appeals court ruled Tuesday.

However, another federal appeals court has ruled just the opposite and the two rulings presumably will have to be considered by the Supreme Court.

A panel of the U.S. 8th Circuit Court of Appeals ruled 2 to 1 Tuesday that the so-called Montgomery Amendment, taking away a governor’s control over National Guard units, is unconstitutional.

Objections by Governors

The amendment was challenged by Minnesota Gov. Rudy Perpich, who objected to the Defense Department’s ordering Minnesota Guard units to Central America. Governors of other states also have objected, and the states of Massachusetts, Ohio, Colorado, Vermont and Maine supported Minnesota’s lawsuit.

The U.S. 1st Circuit Court of Appeals in October rejected a similar challenge to the amendment filed by Massachusetts Gov. Michael S. Dukakis.

“Today’s ruling by the 8th U.S. Circuit Court of Appeals is a victory for common sense, the Constitution and the governors of the United States,” Dukakis said Tuesday.

Massachusetts Atty. Gen. James Shannon said the state was now more likely to appeal the 1st Circuit ruling.

“Today’s ruling in the Minnesota case was what we argued here in Boston. So our position has been vindicated by one court of appeals,” Shannon said.

No Decision on Appeal

Justice Department officials said Tuesday’s ruling would apply only to states within the 8th Circuit. A Guard official in Washington said no decision had been made on whether to appeal.

The amendment was attached to the Defense Authorization Act of 1987 by Rep. G. V. (Sonny) Montgomery (D-Miss.). Prior to its passage, state units could not be sent on federal training missions without a governor’s consent.

The 8th Circuit concluded that the Montgomery Amendment contravenes the intent of the framers of the U.S. Constitution, who they said designed the militia--or National Guard--”to serve as a check on the potential abuse of military power by the federal government.”

” . . . The government has not demonstrated that the effectiveness of either the national defense or the National Guard will be diminished by adherence to the constitutional principle of basic state control over National Guard forces, absent a declaration of war or national exigency,” the 8th Circuit majority held.

The opinion was released in St. Paul and at the court’s headquarters in St. Louis.

At the Defense Department in Washington, National Guard Bureau spokesman Dan Donohue said the ruling suggests further legal action is likely. “But no decisions have been made officially on an appeal,” he said.

Donohue said the ruling in the Minnesota case would have little immediate effect.

“From our point of view, the training of the National Guard continues to be our primary responsibility,” he said. “And the Montgomery Amendment is still the law of the land except in the affected case (Minnesota). We will continue to deploy and train soldiers in accordance with the federal law.”

Amy Brown, a spokeswoman for the Justice Department in Washington, said the states covered by the ruling are the seven in the 8th Circuit--Arkansas, Iowa, Minnesota, Missouri, Nebraska and North and South Dakota. However, she said, the ruling does not take effect immediately and if the federal government appeals it probably would be put on hold.

About 115,000 men and women serve in the Air National Guard and 460,000 in the Army National Guard, Donohue said.

The Pentagon is planning to send about 6,000 Guard members from across the country to Honduras next year for road-building and engineering exercises, Donohue said. No exercises are now under way because of the rainy season in Central America, he added.