7 States Fight U.S. National Guard Orders

Governors were attempting to intervene in foreign policy when they tried to stop their National Guard units from training in Central America, the Bush Administration argued today before the Supreme Court.

Solicitor General Kenneth Starr urged the justices to uphold a 1986 law that stripped governors of their veto power over National Guard training missions.

But a Minnesota official said the Founding Fathers feared a large standing army and believed state control could serve as a check on the federal government.

Minnesota Gov. Rudy Perpich, who objected to his state’s National Guard being sent to Honduras, contends in a lawsuit against the Defense Department that states have the constitutional authority to direct or consent to peacetime training of their state militia.

But, “what the governor has sought to do is to play a role in the foreign policy and defense policy of the United States,” Starr said in oral arguments before the high court.

Perpich says the issue is one of states’ rights rather than foreign policy.

The Founding Fathers “greatly feared the effect of a large standing army,” said John Tunheim, chief deputy attorney general for Minnesota. “They believed that state control would be a very important check on the federal government.”

The 1986 law, known as the Montgomery Amendment, barred governors from stopping a National Guard unit from serving on active duty outside the country because they don’t like the location, purpose or schedule of the mission.

Named for Rep. G. V. (Sonny) Montgomery (D-Miss.), the law was enacted after several governors said they opposed the Reagan Administration’s Central American policy and did not want National Guard troops assigned to train in the region.

The U.S. 8th Circuit Court of Appeals upheld the law last June, saying that the state’s power to organize militias “cannot constrain Congress’ authority to train the guard as it sees fit.”

Since members of the National Guard are enlisted in the U.S. armed forces as well as a state government, the President can order them to train anywhere he sees fit, Starr argued.

“They wear two hats. When they were going to Honduras, they were wearing their federal hat,” Starr said.

Justice Anthony M. Kennedy questioned how the federal government could properly prepare National Guard units for battle without deciding where to train them.

Twenty-nine states filed a brief siding with the Administration, saying that Perpich was “seeking to arrogate to himself a role in foreign affairs.”

Six other states--Iowa, Maine, Massachusetts, Montana, Ohio and Vermont--took Minnesota’s side, arguing that the Founding Fathers wanted state control of the militia to prevent abuses by the federal government.