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Copyright (c) 1990 The American Society of International Law
American Journal of International Law

DECISION: PERPICH v. DEPARTMENT OF DEFENSE. 110 S.Ct. 2418.

October, 1990

84 A.J.I.L. 914

Author

DAVID J. SCHEFFER, Senior Associate, Carnegie Endowment for International Peace

Excerpt

U.S. Supreme Court, June 11, 1990.

The Governor of Minnesota, Rudy Perpich, claimed that federal law unconstitutionally denies state governors the power to withhold their consent to federal training missions of state National Guard members outside the United States during peacetime. The district court dismissed the governor's action on three grounds: Congress created the federal National Guard pursuant to its Article I, section 8 power to raise and support armies; the separate identity of state guard units does not limit Congress's plenary authority to train the units as it sees fit when the guard is called into active federal service; and the Constitution neither requires gubernatorial consent for federal training nor prohibits Congress from withdrawing it. 1

The Court of Appeals for the Eighth Circuit initially reversed and held (2- 1) (per Heaney, J.) that the federal law in question violated the constitutional reservation of state authority to train the militia and that state National Guard personnel could not be ordered to federal active duty for training without the consent of the states unless Congress or the President first declared a national security emergency or exigency. 2 An en banc ruling by the court of appeals rejected this reasoning and affirmed (7-2) (per Magill,J.) the district court's decision. 3 On appeal to the Supreme Court, the Court (per Stevens, J.) unanimously affirmed the circuit court's en banc judgment. 4

In 1985 and 1986, the Defense Department faced a serious challenge to federal authority over the National Guard. ...
 
 
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