RUDY PERPICH, GOVERNOR OF MINNESOTA, ET AL., PETITIONERS V. UNITED
STATES DEPARTMENT OF DEFENSE, ET AL.

   No. 89-542

   In The Supreme Court Of The United States

   October Term, 1989

   On Writ Of Certiorari To The United States Court Of Appeals For The
Eighth Circuit

   Brief For The Respondents

            TABLE OF CONTENTS
   Question presented
   Opinions below
   Jurisdiction
   Constitutional and statutory provisions involved
   Statement
   Introduction and summary of argument
   Argument:
      The Montgomery Amendment, which limits the
      grounds upon which a state governor can object to
      active duty overseas of units of the National Guard
      of the United States from his State, is a permissible
      exercise by Congress of its plenary power under the
      Army Clause and does not violate the Militia
      Clauses
      A. The Constitution does not forbid the federal
         government and the States from entering into
         a cooperative arrangement such as the
         dual enlistment system
      B. None of the reasons advanced for creating a
         rule that the NGUS is a militia for constitutional
         purposes are persuasive
      C. Nothing in the history or structure of the
         Army or Militia Clauses suggests that Congress
         can exercise power over the NGUS
         only in accordance with the limitations of
         the Militia Clauses
      D. The history of the NGUS/National Guard
         system demonstrates Congress's intent to
         create a national reserve force, in reliance
         upon this Court's holding in the Selective
         Draft Law Cases
         1. The Militia Act of 1792
         2. The Dick Acts of 1903 and 1908
         3. The National Defense Act of 1916
         4. The National Defense Act of 1933
         5. The Armed Forces Reserve Act of
            1952
         6. The Montgomery Amendment
      E. Petitioners' suggestion that the federal
         government may contravene the limitations
         of the Militia Clauses only after declaration
         of a war or national emergency has no support
         in the Constitution's text or history
   Conclusion

                            OPINIONS BELOW

   The en banc opinion of the court of appeals (Pet. App. A1-A62) is
reported at 880 F.2d 11.  The opinion of the panel (Pet. App.
A63-A141), which was vacated by the court of appeals en banc (Pet.
App. A62.1), is unreported.  The opinion of the district court (Pet.
App. A141-A153) is reported at 666 F. Supp. 1319.

                             JURISDICTION

   The judgment of the court of appeals (J.A. 31-32) was entered on
June 28, 1989.  The petition for a writ of certiorari was filed on
September 26, 1989, and was granted on January 8, 1990.  The
jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

           CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

   The relevant constitutional and statutory provisions are reproduced
as an Appendix, infra, 1a-2a.

                          QUESTION PRESENTED

   Whether the Montgomery Amendment, 10 U.S.C. 672(f), is a
constitutional exercise of Congress's plenary authority to provide for
the national defense under the Army Clause, U.S. Const. Art. I,
Section 8, Cl. 12, and thus not violate of the Militia Clauses, U.S.
Const. Art. I, Section 8, Cls. 15-16, which reserve to the States the
authority to train the militia.

                               STATEMENT

   This case involves a challenge by the Governor of Minnesota to the
constitutionality of the Montgomery Amendment, 10 U.S.C. 672(f).
Passed in 1986, that Amendment provides that when members of the
National Guard of the United States are ordered to active duty outside
the United States, the governor of a State may not withhold his or her
consent to such duty based upon the governor's objections to its
location, purpose, type or schedule.  In passing the measure, Congress
relied on the broad powers conferred on it by the Constitution to
provide for the Nation's defense and security.

   1. The United States Constitution contains a number of provisions
conferring authority on Congress to "provide for the common defence"
of the nation.  U.S. Const. Preamble.  Section 8 of Article I grants
Congress power "(t)o raise and support Armies" (Cl. 12).  Section 8 of
Article I also includes provisions giving Congress power "(t)o provide
and maintain a Navy" (Cl. 13), "(t)o make Rules for the Government and
Regulation of the land and naval Forces" (Cl. 14), and to collect
taxes to "provide for the common Defence" (Cl. 1).  Other provisions
indicate that the power of the federal government in matters of
national defense is plenary.  Section 10 of Article I provides that
"(n)o State shall, without the Consent of Congress, * * * keep Troops,
or Ships of War in time of Peace, * * * or engage in War, unless
actually invaded, or in such imminent Danger as will not admit of
delay" (Cl. 3).  Article II provides that "(t)he President shall be
Commander in Chief of the Army and Navy of the United States" (Section
2, Cl. 1).  Finally, a number of provisions grant exclusive power to
the federal government over the closely related areas of war and
foreign relations.  /1/

   In two neighboring clauses in Section 8 of Article I, the
Constitution also grants Congress extensive power over "the Militia,"
while reserving other authority to the States.  The first of these
clauses -- Clause 15 -- gives Congress the power to "provide for
calling forth the Militia" for three specific purposes:  "to execute
the Laws of the Union, suppress Insurrections and repel Invasions(.)"
U.S. Const. Art. I, Section 8, Cl. 15.  The second clause -- Clause 16
-- grants Congress the power

         (t)o provide for organizing, arming, and disciplining, the
      Militia, and for governing such Part of them as may be employed
      in the Service of the United States, reserving to the States
      respectively, the Appointment of the Officers, and the Authority
      of training the Militia according to the discipline prescribed
      by Congress(.)

U.S. Const. Art. I, Section 8, Cl. 16.

   Aside from the Militia Clauses, the militia are mentioned in the
original Constitution only once:  Article II provides that "(t)he
President shall be Commander in Chief * * * of the Militia of the
several States, when called into the actual Service of the United
States." Art. II, Section 2, Cl. 1.  The Second Amendment also
mentions the militia, providing that "(a) well regulated Militia,
being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be infringed."

   2. a. Congress has exercised its extensive constitutional powers
over matters of national defense by establishing the armed forces of
the United States, which consist of the Army, Navy, Air Force, Marine
Corps, and Coast Guard.  10 U.S.C. 101(4);  32 U.S.C. 101(2).  Each of
these services has a reserve component, 10 U.S.C. 261, the purpose of
which is to provide trained military units to supplement the armed
forces "in time of war or national emergency and at such other times
as the national security requires." 10 U.S.C. 262.

   The reserve components of the Army are the Army National Guard of
the United States, 10 U.S.C. 261(a)(1), and the Army Reserve, 10
U.S.C. 261(a)(2).  The reserve components of the Air Force are the Air
National Guard of the United States, 10 U.S.C. 261(a)(5), and the Air
Force Reserve, 10 U.S.C. 261(a)(6).  /2/ The Army and Air National
Guard of the United States (collectively "NGUS") are in the "Ready
Reserve," 10 U.S.C. 269(b) -- the units whose availability for active
duty are most relied upon.  10 U.S.C. 268(a), 672, 673.

   The Army NGUS is defined by statute as "the reserve component(s) of
the Army all of whose members are members of the Army National Guard."
10 U.S.C. 101(11);  32 U.S.C. 101(5).  See also 10 U.S.C. 101(13);  32
U.S.C. 101(7) (same definition for Air NGUS).  To become a member of
the NGUS, a person must enlist in, and be federally recognized as a
member of, the National Guard of a particular state.  10 U.S.C.
591(a), 3261, 8261.  /3/ Under this "dual enlistment" system
established in 1933 (which we shall presently describe in fuller
detail), Guardsmen, when not on active duty in the NGUS, are
administered as members of their respective state National Guard
units.  10 U.S.C. 3079, 8079.  When on active duty as NGUS members,
however, Guardsmen are relieved of duty in their state National Guard
units.  32 U.S.C. 325.

   As a reserve component of the armed forces, the NGUS is ordinarily
not on active duty.  However, the NGUS may be ordered to active duty
by federal authorities in a variety of circumstances.  Congress, for
example, may order the NGUS to active duty and "retain() (it) as long
as so needed" whenever Congress determines that "more units * * * are
needed for the national security than are in the regular components of
the ground and air forces." 10 U.S.C. 263.  There is no restriction as
to the purpose for which such units may be used.

   Executive Branch officials may also order reserve forces to active
duty under a number of circumstances.  10 U.S.C. 672-675.  In times of
war or national emergency, the appropriate official may order any
member of a reserve component into active duty for any purpose other
than training.  10 U.S.C. 672(a).  When the President determines "that
it is necessary to augment the active forces for any operational
mission," the appropriate Executive Branch officials may order up to
200,000 members of the reserve to active duty for a period of not more
than 90 days, subject to certain restrictions as to use and certain
reporting requirements.  10 U.S.C. 673b.  In the event of "national
emergency declared by the President" or in some other circumstances,
the appropriate official may order up to 1,000,000 reservists to
active duty, again subject to certain restrictions as to use and
certain reporting requirements.  10 U.S.C. 673.

   b. At issue in this case are two further provisions for ordering
reservists to active duty.  Pursuant to 10 U.S.C. 672(b), the
appropriate official may order any reservist to active duty for up to
fifteen days for any purpose.  Pursuant to 10 U.S.C. 672(d), the
appropriate official may order any consenting reservist to active duty
indefinitely for any purpose.  These two provisions are the only
provisions for activating reserve forces that distinguish in any way
between the NGUS and other reserve components.  They provide that an
NGUS unit or member, unlike members or units of other reserve
components, may not be ordered into active duty "without the consent
of the governor of the State" in which the unit or member is located.
Pursuant to the provision at issue in this case -- the Montgomery
Amendment, 10 U.S.C. 672(f) -- such consent "may not be withheld (in
whole or in part) with regard to active duty outside the United States
* * * because of any objection to the location, purpose, type, or
schedule of such active duty."

   c. The NGUS receives all of its funding from Congress, and forms an
integral part of the total armed forces of the United States.  See
Pet. App. A116.  In 1986, the Army NGUS provided 46% of the Army's
combat units and 28% of its support forces.  In the event of full
mobilization, 18 of the 28 Army divisions would be provided wholly or
in part by the Army NGUS.  For its part, the Air NGUS operates and
maintains more than 1,700 aircraft.  In fiscal year 1987, it provided,
inter alia, 73% of the Nation's air defense interceptor forces, 52% of
tactical air reconnaissance, 34% of tactical airlift, 25% of tactical
fighters, 17% of aerial refueling, and 24% of tactical air support
forces.  J.A. 12-13.  NGUS personnel participated in the Grenada
mission and the air strike on Libya. Pwt. App. A120-A121 n.41.  They
also played a vital role in the recent operation in Panama.

   3. As currently defined, the militia of the United States includes
all able-bodied males between the ages of 17 and 45, with some
exceptions, see 10 U.S.C. 312, who are, or have declared the intention
of becoming, citizens of the United States, as well as all female
citizens who are commissioned officers of the National Guard.  10
U.S.C. 311(a).  The President may call the militia of any State into
federal service when civil unrest in that State is such that it has
become "impracticable to enforce the laws of the United States * * *
by the ordinary course of judicial proceedings," 10 U.S.C. 332, or
when there is an insurrection in another State against its government,
10 U.S.C. 331.  See note 17, infra.

   The militia is divided into two classes:  the organized militia,
which consists of the National Guard and the Naval Militia, and the
unorganized militia, which includes all other members of the militia.
10 U.S.C. 311(b).  The Army and Air National Guard (collectively the
"National Guard") are defined separately from the Army and Air NGUS
(reserve components of the Army and Air Force).  The Army and Air
National Guard are "that part of the organized militia of the several
States * * * that:

         (A) is a land (air) force;

         (B) is trained, and has its officers appointed, under the
      sixteenth clause of section 8, article I, of the Constitution;

         (C) is organized, armed and equipped wholly or partly at
      Federal expense;  and

         (D) is federally recognized."

10 U.S.C. 101(10) and (13);  32 U.S.C. 101(4) and (6).  Although
States are not required to maintain National Guard units, every State,
in addition to the District of Columbia, Puerto Rico, and certain
territories, has a National Guard.

   Aside from the statutes cited above permitting the President to
call "the militia" into federal service, Congress has enacted
legislation specifically exercising the federal government's authority
over the state National Guard.  The President may call the National
Guard into federal service for the three purposes listed in the
Militia Clauses:  to repel a foreign invasion, suppress a rebellion
against the authority of the United States, or to enforce the laws of
the United States.  10 U.S.C. 3500, 8500.  /4/ When the National Guard
is called into federal service, the orders "shall be issued through
the governors of the States." 10 U.S.C. 3500.

   Congress has also exercised its constitutionally granted authority
to organize, arm, and discipline the National Guard.  In general, the
organization and composition of the National Guard is required to be
the same as that prescribed for the Army and Air Force.  32 U.S.C.
104(b).  Congress has also set forth eligibility criteria for
membership in the National Guard, see 32 U.S.C. 313, and has required
those who qualify for service to take an oath to support and defend
the Constitutions of the United States and their own State and to obey
orders of the President and their respective governors.  32 U.S.C.
304, 312.  In addition, Congress requires each National Guard unit to
assemble for drill instruction at least 48 times per year and to
participate in annual, 15-day training camps.  32 U.S.C. 502.

   Congress also provides the bulk of the funding for the National
Guard.  32 U.S.C. 107.  The Department of Defense currently pays more
than 90% of the National Guard's expenses.  J.A. 13.  The President,
however, may deny federal funding to any State whose National Guard
does not comply with federal rules and regulations.  32 U.S.C. 108.

   4. In addition to its National Guard, a State may organize and
maintain a separate state defense force.  32 U.S.C. 109(c).  A state
defense force may be used as the State's chief executive sees fit, but
may not, by statute, be called or drafted into the armed forces of the
United States.  32 U.S.C. 109(c).  Currently at least 30 States have
enacted statutes providing for the organization of such defense
forces.  /5/ We are informed that at least 10,000 individuals are
currently enrolled in such organizations.  /6/

   5. This case concerns NGUS units ordered to active duty under 10
U.S.C. 672(b) and (d).  Both of those provisions generally require the
consent of the governor of the State in which the NGUS units are
located.  See App. infra, 1a-2a.  In 1985 and 1986, several governors,
including Governor Perpich, expressed opposition to the
Administration's Central American policy and either withheld their
consent to NGUS training missions in that region or indicated that
they would do so.  J.A. 24-26.  In response, Congress in 1986 enacted
the Montgomery Amendment.  10 U.S.C. 672(f);  see 132 Cong. Rec.
21,660-21,663 (1986).  /7/ That Amendment provides:

         The consent of a Governor described in subsections (b) and
      (d) may not be withheld (in whole or in part) with regard to
      active duty outside the United States, its territories, and its
      possessions, because of any objection to the location, purpose,
      type, or schedule of such active duty.

The Montgomery Amendment did not, however, eliminate the consent
provisions altogether.  A governor may still withhold his consent
based upon other grounds, for example, that the state National Guard
is needed to deal with a local emergency.  See H.R. Conf. Rep. No.
1001, 99th Cong., 2d Sess. 475 (1986);  132 Cong. Rec. 21,633 (1986)
(remarks of Rep. Montgomery).

   Petitioners, the State of Minnesota and its governor, Rudy Perpich,
commenced this action after the Secretary of Defense ordered members
of an NGUS unit from Minnesota to active duty pursuant to 10 U.S.C.
672(b) or (d) for three missions in Central America.  J.A. 6.
Governor Perpich asserted that he would have objected to one of those
orders had it not been for the limitations imposed by the Montgomery
Amendment on his power to veto the federal government's decision to
order an NGUS unit from his State into active duty.  Ibid.  Such
limitations were unconstitutional, Governor Perpich claimed, because
they violated Art. I, Section 8, Cl. 16 of the Constitution, which
"reserv(es) to the States * * * the Authority of training the Militia
according to the discipline prescribed by Congress." Petitioners
sought a declaratory judgment that the Montgomery Amendment was void
and injunctive relief barring the United States from ordering any NGUS
unit from Minnesota to active duty for training abroad without
Governor Perpich's consent.  J.A. 7.

   6. The district court granted summary judgment for the United
States.  Pet. App. A141-A153.  In sustaining the constitutionality of
the Montgomery Amendment, the court first noted that "(a)ll authority
to provide for the national defense resides in Congress, and state
governors have never had, and never could have jurisdiction in this
area." Pet. App. A149.  Accordingly, the court found that "the dual
enlistment system, under which National Guard members serve as members
of both a state national guard and of the National Guard of the United
States, is a valid exercise of Congressional power under the Army and
Necessary and Proper clauses." Pet. App. A149-A150.

   Relying on the Selective Draft Law Cases, 245 U.S. 366 (1918), the
district court reasoned that "(b)ecause Congress' authority to provide
for the National defense is plenary, the Militia clause * * * cannot
constrain Congress' authority to train the Guard as it sees fit when
the Guard is called to active federal service." Pet. App. A150.  The
court found that the gubernatorial consent provisions in 10 U.S.C.
672(b) and (d), which the Montgomery Amendment restricted, were "not
constitutionally required," but were rather "an accommodation to the
states" that "Congress may withdraw * * * without violating the
Constitution." Pet. App. A150.

   7. A divided panel of the court of appeals reversed.  Pet. App.
A63-A141.  The panel majority (Judge Heaney and Senior Judge
Fairchild, sitting by designation) held that the Montgomery Amendment
"contravenes the intent of the Framers" and "violates the plain
language of the Constitution." Pet. App. A66.  The panel also ruled
that the Montgomery Amendment is at odds with this Court's decisions
in the Selective Draft Law Cases, supra, and Cox v. Wood, 247 U.S. 3
(1918).  The panel interpreted those decisions to establish that "the
army power could supersede reserved state authority over the militia
only when Congress had determined that there was some sort of exigency
or extraordinary need to exert federal power." Pet. App. A92.  Judge
Magill dissented.  Pet. App. A123-A141.

   8. Sitting en banc, the court of appeals granted rehearing, vacated
the panel's decision, and affirmed the district court. Pet. App.
A1-A62.1.  The en banc court described the basic issue as, "when the
State claims a right to control Militia training, and Congress claims
'We're training the Army, not the Militia,' who wins?" Pet. App. A9.
It resolved that question in favor of the federal government, noting
that "(t)he authority given to Congress by the army clause is plenary
and exclusive." Ibid.  Like the district court, the court of appeals
determined that the dual enlistment system and the authority conferred
on federal officials to order NGUS units to active duty for training
were valid exercises of Congress's power under the Army Clause.  Pet.
App. A9-A10.  The Court held that the Selective Draft Law Cases,
supra, and Cox v. Wood, supra, "made clear that the army clause is not
limited by the militia clause." Pet. App. A11.  The majority
concluded:

         Congress' army power is plenary and exclusive.  The
      reservation to the States of authority to train the Militia does
      not conflict with Congress' authority to raise armies for the
      common defense and to control the training of federal reserve
      forces.  The Montgomery Amendment is a constitutional exercise
      of Congress' army powers.

Pet. App. A13.

   Judges Heaney and McMillian dissented.  They adhered to the views
expressed in the panel opinion.  Pet. App. A14-A62.

                 INTRODUCTION AND SUMMARY OF ARGUMENT

   This case challenges the constitutionality of the dual enlistment
concept, the basis upon which major portions of the armed forces
reserves of this Nation have been organized for more than fifty years.
 Acting in express reliance upon this Court's holdings in the
Selective Draft Law Cases, 245 U.S. 366 (1918), and Cox v. Wood, 247
U.S. 3 (1918), Congress created two organizations -- the National
Guard of the United States (NGUS) and the state National Guard -- that
make use of the same individual members for complementary federal and
state purposes.  The question in this case is whether a cooperative
arrangement of this nature, largely funded by the federal government,
is constitutional.

   The federal government relies on the federal element of the system
-- the NGUS -- as an essential reserve component of this Nation's
armed forces.  Under the "Total Force" doctrine, which has governed
national strategic defense planning since the early 1970's, the
regular (or active duty) armed forces are intentionally maintained at
smaller levels than would be necessary to assure our security.  For
virtually any important military mission, the national security
depends upon the immediate availability of trained NGUS troops to
supplement the regular forces.

   For their part, State governments make use of the members of the
NGUS in their status as members of the state National Guard where, by
statute, they function as a compoment of the militia.  In this status,
the Guardsmen are available to their respective state governments to
assist in a wide variety of situations, including civil disorder and
natural disasters.  In their status as members of the state National
Guard, Guardsmen may be called into federal service only for the three
purposes enumerated in the Militia Clauses -- executing the laws of
the union, repelling invasions, and suppressing insurrections.  States
need not maintain National Guard units.  Given the substantial
financial incentive provided by federal funding of the NGUS/National
Guard system, however, all States have chosen to maintain National
Guard units and thus to participate in the dual enlistment system.

   Petitioners instituted this case seeking an injunction against use
of the federal component of the dual enlistment system, the NGUS, for
a purpose -- training -- that is alleged to exceed the federal
government's authority under the Militia Clauses.  Essentially, their
claim is that, despite Congress's intent to create the NGUS as a
federal military force outside the limitations of the Militia Clauses,
Congress succeeded only in creating a militia organization under the
primary control of the States.

   This Court squarely rejected petitioners' theory seventy years ago
in the Selective Draft Law Cases and Cox v. Wood.  In those cases, the
Court established unequivocally that Congress enjoys broad authority
to raise a national army and that this power is not limited in any way
by the Militia Clauses.  Even if creation of the NGUS could be seen to
"narrow() the area over which the militia clause operate(s),"
Selective Draft Law Cases, 245 U.S. 366, 384 (1918), these cases
squarely hold that Congress may achieve this result through exercise
of its Army Clause powers.

   If accepted at this late date, petitioners' theory would have
severe consequences for the ability of our armed forces to meet the
Nation's defense needs.  Each of 50 state governors would have veto
power over use of NGUS troops from his or her State outside the three
purposes set forth in the Militia Clauses.  Moreover, training of the
NGUS, whether for these three purposes or for any other purpose, would
be under exclusive control of the States.

   Petitioners advance no persuasive reason to support their
contention that the Constitution requires that the NGUS be treated as
a "Militia" organization, rather than as a component of the national
armed forces.  Although it is true that all members of the NGUS are
members of the corresponding state National Guard unit, this defining
trait of the dual enlistment system provides substantial benefit to
the States by providing them with an organized militia largely at
federal expense.  Inasmuch as no State is required to maintain a state
National Guard, the system does not in any respect require the States
to cede reserved powers to the federal government.

   Nor does the system render the Militia Clauses devoid of
application.  The Militia Clauses remain fully applicable to the state
National Guard.  Under the current statutory scheme, the States are
assured of the use of their National Guard units for any legitimate
state purpose.  They are simply forbidden to use their control over
the state National Guard to thwart federal use of the NGUS for
national security and foreign policy objectives with which they
disagree.

   The history of the framing and ratification of the Army and Militia
Clauses confirms that Congress may use its broad Army Clause powers to
organize and maintain the NGUS as a component of the national armed
forces, outside the limitations of the Militia Clauses.  While the
Militia Clauses divide powers between the state and federal
governments in a careful compromise between those who supported and
those who opposed federal power over the militia, the federalists
succeeded in securing for Congress virtually unrestricted powers to
raise and employ the armed forces.  There is no reason to believe that
the Framers intended that state power over the militia was to be the
sole exception to their decision to vest exclusive power in the
federal government with respect to foreign affairs and the national
security.

   Recognizing that their argument entails the unacceptable conclusion
that the NGUS may be used only to execute federal law, repel
invasions, and suppress insurrections as provided by the Militia
Clauses, petitioners advance a novel constitutional theory that the
federal government may ignore the limitations on federal power in the
Militia Clauses in the event of a "national exigency" declared by
Congress or the President.  This theory finds no support in the text
or history of the relevant constitutional provisions.  In essence, it
amounts to a suggestion that, because the Selective Draft Law Cases
arose during the "national exigency" of World War I, the holding and
reasoning of those cases should be confined to situations in which
such an "exigency" has been declared.  This misguided suggestion is
particularly inappropriate in light of Congress's express reliance on
this Court's decisions in creating and employing the National Guard of
the United States as an essential link in this country's armed forces.

                               ARGUMENT

   THE MONTGOMERY AMENDMENT, WHICH LIMITS THE GROUNDS UPON WHICH A
STATE GOVERNOR CAN OBJECT TO ACTIVE DUTY OVERSEAS OF UNITS OF THE
NATIONAL GUARD OF THE UNITED STATES FROM HIS STATE, IS A PERMISSIBLE
EXERCISE BY CONGRESS OF ITS PLENARY POWER UNDER THE ARMY CLAUSE AND
DOES NOT VIOLATE THE MILITIA CLAUSES

   A. The Constitution Does Not Forbid The Federal Government And The
States From Entering Into A Cooperative Arrangement Such As The Dual
Enlistment System

   The issue in this case is whether the Constitution permits the
federal government and the States to enter into a cooperative
arrangement whereby the same individuals are enlisted as both NGUS
troops -- reserve members of the United States Army and Air Force
constitutionally indistinguishable from any other members of the
national armed forces -- and state National Guard members -- members
of the "militia" in constitutional terms -- over whom federal
authority is constitutionally limited.  We submit that the "dual
enlistment" system, as currently embodied in federal statutes
governing the NGUS and the National Guard, is scrupulously faithful to
all relevant constitutional provisions.  The system was adopted by
Congress in express reliance on this Court's decisions in the
Selective Draft Law Cases, 245 U.S. 366 (1918), and Cox v. Wood, 247
U.S. 3 (1918), holding that the Militia Clauses do not act as a
limitation on Congress's plenary authority under the Army Clause.  The
dual enlistment system permits -- but does not require -- the States
to utilize federally funded reserve troops as state militia, thus
avoiding the costly burden of funding and maintaining entirely
separate state militias.  Far from oppressing the States or depriving
them of a prerogative granted by the Constitution, the system is in
the highest tradition of cooperative federalism and should be upheld.

   1. Two types of military forces, both expressly recognized by the
Constitution, are at issue.  In Article I, Section 8, Clause 12,
Congress is granted authority "(t)o raise and support Armies."
Petitioners do not dispute that, pursuant to authority granted by the
Army Clause, Congress may provide for armies composed of any
combination of volunteers and draftees, regular soldiers and
reservists.  See Selective Draft Law Cases, supra;  Cox v. Wood,
supra.  Nor do petitioners dispute that armed forces raised pursuant
to the Army Clause may constitutionally be employed by the federal
government for virtually any purpose seen by Congress and the
President to be in the national interest.

   In contrast to the plenary power granted by the Army Clause, the
Constitution defines carefully circumscribed zones of federal and
state authority over the Militia, the other type of military force
identified in the Constitution.  Congress may call forth the militia
only to "execute the Laws of the Union, suppress Insurrections and
repel Invasions." Art. I, Section 8, Cl. 15.  Moreover, although
Congress may "provide for organizing, arming, and disciplining" the
militia, for "governing" them while in federal service, and for
prescribing "discipline" for them while in training, Art. I, Section
8, Cl. 16, the Constitution reserves to the States "the Appointment of
the Officers, and the Authority of training" the militia.  Ibid.

   2. The statutes governing the NGUS demonstrate that it is a force
over which the federal government exercises the plenary control that
is a characteristic of bodies raised as "Armies" under the Army
Clause.  /8/ The statutory scheme that has evolved constitutes the
NGUS as a "reserve component" of the Army and Air Force, 10 U.S.C.
101(11), 101(13);  32 U.S.C. 101(5), 101(7), and thus the NGUS is part
of the "armed forces" of the United States.  10 U.S.C. 101(4);  32
U.S.C. 101(2).  With a single exception -- the gubernatorial veto
power of 10 U.S.C. 672(b) and (d), which is at issue in this case --
the circumstances under which the NGUS may be ordered to active duty,
see 10 U.S.C. 672-675, are in no way different from those in which
other reserve components of the armed forces, see 10 U.S.C. 261 et
seq., may be so ordered.  Most significantly, the uses to which the
NGUS may be put once in active duty are identical to the uses to which
other reserve components may be put or, indeed, to the uses to which
the armed forces may generally be put in protecting national security.
 In all these respects, the statutory scheme embodies Congress's
determination that the NGUS must be generally available on the same
basis as other components of the armed forces, pursuant to the Army
Clause of the Constitution.

   The federal statutes governing state National Guard units differ
dramatically from the legal framework governing the NGUS.  In each
case, the difference demonstrates that the state National Guard is a
Militia Clause, not an Army Clause, organization.  /9/ The state
National Guard is defined as "that part of the organized militia"
which, inter alia, has officers appointed pursuant to the Militia
Clauses of the Constitution.  10 U.S.C. 101(10), 101(12);  32 U.S.C.
101(4), 101(6).  The state National Guard may be called into federal
service for the three purposes set forth in the Militia Clauses --
executing federal law, suppressing insurrections, and repelling
invasions.  See, e.g., 10 U.S.C. 331-333, 3500, 8500.  In addition,
much of Title 32 of the U.S. Code is concerned with the organization,
arming, and discipline of the state National Guard -- functions
expressly vested in the federal government by the Militia Clauses.

   3. Petitioners have no quarrel with the statutory scheme governing
the state National Guard.  As is evident from their Complaint, their
sole contention is that the NGUS may not be "trained" by the federal
government without their consent.  See J.A. 7, Paragraph 1.  But if
the NGUS is constitutionally an "Army," as it manifestly is, then
petitioners have no more constitutional right to control its training
overseas -- or its use for any other purpose -- than they would to
control similar use of any other regular or reserve unit of the United
States armed forces.  In short, petitioners' argument hinges entirely
on their contention that, although Congress created and funded the
NGUS with the objective of creating a reserve "Army," Congress in fact
succeeded only in creating a "Militia" organization subject to limited
federal control as specified in the Militia Clauses.

   This Court squarely repudiated the premise underlying petitioners'
argument in the Selective Draft Law Cases, supra, and Cox v. Wood,
supra.  In the Selective Draft Law Cases, the Court rejected numerous
challenges to the draft law of 1917, including the claim that persons
could not be drafted into the Army except for the three purposes
specified in the Militia Clauses.  245 U.S. at 381-382.  /10/ Four
months later, in Cox v. Wood, 247 U.S. 3 (1918), it was argued that,
"although Congress had the power to call the citizens of the United
States, the national militia, to compulsory service in virtue of the
militia clause of the Constitution (Article I, Section 8)," that power
was limited to use for the three purposes specified in the Militia
Clauses.  247 U.S. at 4.  Holding that this argument rested upon a
"fundamental mistake" (id. at 5), the Court reaffirmed its holding in
the Selective Draft Law Cases.  /11/

   The Court's decisions in the Selective Draft Law Cases and Cox v.
Wood established unequivocally that Congress has plenary authority to
raise a national army, not limited by provisions of the Militia
Clauses.  In the Selective Draft Law Cases, the Court noted that,
under the Articles of Confederation, the power to raise armies was
divided between Congress and the States;  Congress had the right to
call on the States to provide forces and the States had the duty to
comply.  245 U.S. at 382.  The Constitution, however, united the two
parts of this power and vested it in Congress.  When this occurred,
"all governmental power on the subject was conferred." Ibid.  The
result was that "(t)he army sphere therefore embraces such complete
authority." This holding was reaffirmed in Cox v. Wood, 247 U.S. at 6.
 /12/

   This holding alone is dispositive in this case.  The NGUS, like the
regular army whose composition was at issue in the Selective Draft Law
Cases, is defined and treated as a component of the national army;  in
consequence, Congress has plenary power to train, organize, and
utilize it.  To be sure, the NGUS is a reserve component composed of
volunteers, whereas the force being raised in the Selective Draft Law
Cases was a regular army composed of conscripts.  Those differences,
however, do not alter the result.  If anything, because conscription
of members of the militia into a standing army is a far greater
intrusion on state autonomy than a provision for voluntary enlistment
into a reserve force, the result in this case follows a fortiori.

   Moreover, the Court's opinion in the Selective Draft Law Cases
addressed the specific argument advanced by petitioners here -- that
the Militia Clauses must prevail when their specific limitations upon
federal power clash with Congress's exercise of its broad powers under
the Army Clause.  See Pet. Br. 11-13.  /13/ Indeed, the Court
repeatedly explained that, although the Militia Clauses left control
over the militia in the hands of the States in the absence of
congressional action to the contrary, this "did not diminish the
military power," but simply left "an area of authority" to the States
"unless and until by the exertion of the military power of Congress
that area had been circumscribed or totally disappeared." 245 U.S. at
383.  /14/ In Cox v. Wood, the Court added the coda to this
exposition:  the powers of Congress to raise an army "were not
qualified or restricted by the provisions of the militia clause." 247
U.S. at 6.

   The Court's reasoning is directly applicable in this case.  As
explained above, petitioner's argument is that the NGUS, understood by
Congress to be an Army Clause organization, must be classified for
purposes of constitutional analysis as a "Militia" organization.  That
contention flies in the face of Congressional intent.  Congress
expressly created the NGUS as "a reserve component of the Army," 10
U.S.C. 101(13);  32 U.S.C. 101(5).  What is more, the Article I branch
carefully structured the Nation's armed forces upon the understanding
that the NGUS would be available for any military purpose.
Petitioners nonetheless assert that the specific commands of the
Militia Clauses dictate that Congress cannot so structure the armed
forces.  The Court's reasoning in the Selective Draft Law Cases --
founded in the text of the Constitution -- provides the answer to this
assertion.

   4. If accepted, petitioner's argument would have serious
consequences for the Nation's defense policy.  The Nation relies on
the NGUS for 46% of its combat units and 28% of its support forces.
The Air Force is even more dependent on the NGUS, relying on NGUS
units for 73% of its air defense interceptor forces, 52% of its
tactical air reconnaissance capability, 34% of its tactical air lift
capacity, and a substantial portion of its other duties.  See J.A.
12-13.

   If, as petitioner would have it, NGUS units were fully subject to
the Militia Clauses, these forces could be trained only as authorized
by each of the fifty state governors -- each with his or her own
vision of sound foreign and defense policy.  Equally important, NGUS
units could be put into service only for the three purposes enumerated
in the Militia Clauses -- executing federal law, repelling invasion,
and suppressing insurrections.  Although the scope of these three
phrases has never been judicially construed, an attempt to employ the
NGUS in a way arguably not included within these purposes -- for
example, the recent operation in Panama, the 1986 raid on Libya, the
1983 operation in Grenada, or even the Vietnam conflict, the Korean
conflict, or World War II /15/ -- could lead to litigation at a time
when the Nation could least afford it.  /16/ Even if litigation could
be avoided, see Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827), the
constitutional bar -- even if not judicially enforceable -- would
remain.  /17/

   5. Ultimately, petitioners' argument represents a challenge to
state as well as federal authority.  Although every State has chosen
to organize a National Guard unit under the dual enlistment system, no
federal statute requires the States to do so.  See 32 U.S.C. 109(c)
(referring to state National Guard "if any").  Yet each State has
independently concluded that the advantages of this cooperative dual
system -- in terms of federal funding and training -- far outweigh the
slightly reduced availability of its organized militia entailed by the
need to permit the members of its National Guard to perform their
federal obligations as members of the NGUS.  If the NGUS is
constitutionally a "Militia" organization despite Congress's best
efforts to organize and constitute it as a reserve "Army," then the
decisions of each State to accommodate the federal interest would be
rendered wholly ineffective.  Regardless of the State's intent, the
State's participation in a federal-state partnership structured along
the lines of the NGUS/National Guard system would inevitably,
according to petitioners, render the NGUS a constitutional "Militia"
organization.  /18/ Because of the constitutional limitations on the
use of such an organization, the future of what has been a generally
successful form of cooperative federalism would be called into doubt.

   B. None Of The Reasons Advanced For Creating A Rule That The NGUS
Is A Militia For Constitutional Purposes Are Persuasive

   In light of the decisions in the Selective Draft Law Cases and Cox
v. Wood, it is not surprising that petitioners' specific contention --
that the NGUS must be governed by the Militia Clauses, rather than the
Army Clause -- has been rejected by every court to which it has been
presented, including the district court and the en banc court of
appeals in this case.  See Johnson v. Powell, 414 F.2d 1060 (5th Cir.
1969);  Dukakis v. United States Dep't of Defense, 686 F. Supp. 30 (D.
Mass.), aff'd, 859 F.2d 1066 (1st Cir. 1988), cert. denied, 109 S. Ct.
1743 (1989);  Drifka v. Brainard, 294 F. Supp. 425 (W.D. Wash. 1968).
/19/ Although petitiones and their supporting amici advance a number
of reasons why, in their view, the unanimous judgment of these courts
is mistaken, none of those arguments are persuasive.

   1. Petitioners argue that the Constitution requires the NGUS to be
treated as a "Militia" organization because the NGUS "does not exist
apart from the state National Guards" and does not have "separate
membership" from the state Guard.  Pet. Br. 37 n.26.  Both of these
statements, although accurate in the main, are irrelevant.  Although
the NGUS and National Guard have common membership, the fact that both
units share the same members is nothing more than a defining feature
of the dual enlistment system.  It is not a reason for requiring that
both organizations be deemed to be "militias" subject to the Militia
Clauses.

   The NGUS is defined by statute as a "reserve component of the Army
(or Air Force) all of whose members are members of the Army (or Air
Force) National Guard." 10 U.S.C. 101(11), 101(13);  32 U.S.C. 101(5),
101(7).  Under this definition, a State that chose not to maintain a
National Guard would thereby preclude formation of an NGUS unit in
that State.  Similarly, the definition makes clear that all members of
the NGUS are also members of the state National Guard.

   The principal significance of these provisions is not that the NGUS
must be regarded as subject to the Militia Clauses, but simply that
Congress has permitted the States to "piggyback" on the federally
funded NGUS units at virtually no cost to themselves.  Far from being
an argument for state control of the NGUS, the common membership of
the two organizations distinguishes the current system from a system
in which the NGUS and National Guard would have distinct memberships
and in which the States would be required to maintain the National
Guard units at the States' own expense.  The membership overlap
between the NGUS and the National Guard represents an obvious --
indeed central -- benefit to the States flowing from the dual
enlistment system.  But membership overlap provides no basis for
refusing to recognize federal control over the NGUS.

   2. Amici States appear to argue that the dual enlistment system is
tantamount to a system in which "the federal government can force
state officers and employees to have federal status, and then use the
federal status to avoid express constitutional limits on federal
authority." Br. of Amici States 35.  The factual premises of this
argument are mistaken.

   First, because the NGUS/National Guard system is voluntary, not
mandatory, no State is required to cede any officer or employee to the
federal government.  Members of the state National Guard are members
of the federal NGUS not because of any coercion on the part of the
federal government, but because the state government has decided that
the manifest benefits of the system justify cooperation with federal
authorities.  Cf. South Dakota v. Dole, 483 U.S. 203 (1987).

   Second, amici's description of the dual enlistment system as one in
which the federal government co-opts state employees is particularly
inapt.  All the costs of the NGUS and virtually all costs of the
various state National Guards are paid by the federal government.
J.A. 13.  /20/ Thus, although the system is based on federal-state
cooperation, it could more accurately be characterized as making
federal employees available at no charge to the States.  No
constitutional problem is posed by this type of cooperative
federalism.

   3. Finally, petitioners argue that the court of appeals' decision
"emptied the militia training clause of any significant meaning." Pet.
Br. 10;  see also Brief of Amici States at 42.  Under the current
statutory scheme, however, the States retain their ability to
maintain, use, and train their militia organizations -- as well as
other state defense forces, if they so chose -- even if, pursuant to
the statutes at issue here, 10 U.S.C. 672(b) and (d), the federal
government seeks to employ the same individuals in their NGUS status.
/21/

   Under the dual enlistment system, the Militia Clauses continue to
limit federal control over the state National Guard.  The only
restriction on the State's ability to make use of the state National
Guard is the obvious one -- that the state Guard becomes unavailable
for state service when the individuals in the state units are
activated as NGUS troops.  See 32 U.S.C. 325. But this restriction is
without constitutional significance.  It results not from an improper
extension of federal power over the militia, but from the State's
decision to participate in the NGUS/National Guard system.

   In any event, federal use of the NGUS has virtually no impact on a
State's ability to use its National Guard.  Although the Montgomery
Amendment removes the power of a state governor to veto use of NGUS
troops from his or her State pursuant to 10 U.S.C. 672 on the basis of
the "location, purpose, type, or schedule" of such use, the Amendment
does not withdraw the gubernatorial veto power altogether.  A governor
may still withhold his consent to activation of NGUS troops from his
State "if he or she thinks the guardsmen are needed at home for local
emergencies." 132 Cong. Rec. 21,660 (1986) (statement of Rep.
Montgomery);  see also H.R. Conf. Rep. No. 1001, 99th Cong., 2d Sess.
475 (1986).  The limited -- but still important -- effect of the
Montgomery Amendment is thus to preclude a governor from objecting to
the active-duty use of federal forces on the basis of political
disagreements with the federal government as to foreign or defense
policy.  Not surprisingly, amici have come forward with no evidence
that the Framers intended to permit a governor, through employment of
the State's militia, to interfere in such exclusively federal areas.
See, e.g., United States v. Pink, 315 U.S. 203, 233 (1942);  Hines v.
Davidowitz, 312 U.S. 52, 63 (1941);  United States v. Curtiss-Wright
Export Corp., 299 U.S. 304, 315-22 (1936).  /22/

   Finally, insofar as the Militia Clauses were intended to assure
that States would retain forces for use in maintaining civil order,
the current system fully protects that interest.  Congress has
expressly recognized that "(i)n addition to its National Guard, if
any, a State * * * may * * * organize and maintain defense forces." 32
U.S.C. 109(c).  These state defense forces may be used "within the
jurisdiction concerned, as its chief executive * * * considers
necessary." Ibid.  The state defense force units themselves "may not
be called, ordered, or drafted into the armed forces." 32 U.S.C.
109(c).  Pursuant to this authorization, at least 30 States have
enacted statutes providing for the organization of such defense
forces.  See note 5, supra.

   The States thus maintain the ability to have forces available for
use to maintain order or to perform any other function ordinarily
assigned to the state National Guard.  Under 10 U.S.C. 672(b) or (d),
a governor may continue to refuse to consent to the activation of NGUS
members from his State if they are needed in their status as state
National Guard members.  In cases in which NGUS members are ordered to
active duty pursuant to a provision not requiring gubernatorial
consent, e.g., 10 U.S.C. 672(a), 673(a), 673b(a), or in cases in which
the governor consents to federal activation pursuant to 10 U.S.C.
672(b) or (d), a State may maintain a state defense force to carry out
functions that would ordinarily be assigned to the state National
Guard.  The current statutory scheme thus provides several layers of
protection -- including the limited gubernatorial veto and the ability
to maintain state defense forces -- for any State's legitimate
interest in having a force available to maintain order.

   C. Nothing In The History Or Structure Of The Army Or Militia
Clauses Suggests That Congress Can Exercise Power Over The NGUS Only
In Accordance With The Limitations Of The Militia Clause

   1. Petitioners elaborately canvass the history of the framing and
ratification of the Militia Clauses to indicate that the Clauses
"embody a fundamental structural decision by the Framers concerning a
core function of government." Pet. Br. 17.  The Militia Clauses indeed
reflected a compromise, resolving a dispute between those who favored
state control over the militia /23/ and those who sought to subject it
to federal control to assure national security.  /24/ However,
recounting the decision to limit the federal government's power over
the militia does not address the central issue in this case:  whether
this compromise created a constitutional definition of "militia"
applicable to the NGUS and superior to Congress's assertion of its
Army Clause powers.  /25/

   The Army Clause too was a subject of debate at both the Convention
itself and during the ratification process.  As with the Militia
Clauses, some were suspicious of federal power:  Elbridge Gerry, for
example, "thought an army dangerous in time of peace and could never
consent to a power to keep up an indefinite number." 2 Farrand 329.
/26/ Others, however, believed that the Nation would not be able to
defend itself if the federal government were not given broad power to
create an army and navy.  Alexander Hamilton, who had served on
Washington's staff during the Revolutionary War, persuasively argued
in The Federalist No. 25 that maintenance of a standing Army was
essential to the Nation's survival.  Although the militia "by their
valor on numerous occasions, erected eternal monuments to their fame,"
reliance on them as the "natural bulwark" of the "national defense * *
* had like to have lost us our independence." /27/ The Federalist No.
25, at 166 (C. Rossiter ed. 1961).  Hamilton further noted that,
because "(w)ar * * * is a science to be acquired and perfected by
diligence, by perseverance, by time, and by practice," it can be
conducted "against a regular and disciplined foe only by a force of
the same kind." Ibid.

   Ultimately, the federalist view prevailed in the drafting and
ratification of the Army Clause.  In contrast to the carefully
delineated division of powers of the Militia Clauses, the Army Clause
contained only a single qualification -- the requirement that
appropriations for the Army be for no more than two years.  Even that
provision conferred no powers over the national defense on the States.
 /28/

   In view of the broad powers granted to Congress by the Army Clause,
petitioners must advance some persuasive reason why those powers may
not be used to create and maintain the NGUS.  Repetition of the
limitations embodied in the Militia Clauses is not enough to justify
the wholesale limit on Congressional power to create an armed forces
reserve that petitioners advocate.

   2. Petitioners assert that the NGUS should be subject to the
Militia Clauses because those Clauses were "intended as a check
against the possibility of federal oppression." Pet. Br. 20.  For
support, they cite Madison's argument in The Federalist No. 46 that,
if a "regular army, fully equal to the resources of the country, be
formed" and set against the people of a State, the State would be able
to defend itself with "a militia * * * , officered by men chosen from
among themselves, fighting for their common liberties, and united and
conducted by governments possessing their affections and confidence."
The Federalist No. 46, at 299 (C. Rossiter ed. 1961).  /29/

   Fears that a federal standing army could be employed to conquer a
State were no doubt exaggerated at the time the Constitution was
ratified.  And unless one embraces the position that the Civil War was
wrongly decided, no incident in the Nation's subsequent history
suggests that protection of a State from conquest by the federal
government ought to be a guiding factor in interpreting the
Constitution's allocation of power between the States and the federal
government.  In any event, the hypothesized interest in state self
defense does not support petitioners' bold claim to protection of an
entirely separate interest -- a State's claimed interest in
participating in national foreign and defense policy.  This case does
not raise the spectre of federal "oppression" to which Madison
referred in The Federalist No. 46.  /30/

   3. Finally, petitioners assert that "state control over the
militias was designed as a check on federal military adventurism."
Pet. Br. 20.  Indeed, the threat that a state militia under federal
control might be sent to a distant State for an unidentified purpose
did surface in the ratification debates and was carefully answered by
Madison.  /31/ But it is noteworthy that, although a wide variety of
reasons were given for state control of the militia, there was no
recorded sentiment in favor of state control on the ground that States
ought to have a means to influence the Nation's foreign or defense
policy.  In short, there is no evidence that the "military
adventurism" feared was the training on foreign soil of federal troops
who may one day be called upon to fight there.  Nor is there any
reason to believe that state power over the militia was to be the sole
exception to the Framers' decision to vest power over foreign affairs
and national security exclusively in the federal government.  /32/ See
also United States v. Pink, 315 U.S. 203, 233 (1942) ("(p)ower over
external affairs is not shared by the States");  Hines v. Davidowitz,
312 U.S. 52, 63 (1941);  United States v. Curtiss-Wright Export Corp.,
299 U.S. 304, 315-22 (1936).

   D. The History Of The NGUS/National Guard System Demonstrates
Congress's Intent To Create A National Reserve Force, In Reliance Upon
This Court's Holding In The Selective Draft Law Cases

   Petitioners assert that the Montgomery Amendment is "a departure
from careful observance of the constitutionally mandated state
character of the militia by Congress." Pet. Br. 26.  This is a
revisionist understanding of the pertinent history.  Indeed, over a
half century ago, it had become clear to Congress that a reserve force
subject to the constraints of the Militia Clauses was inadequate for
national security purposes.  Thus, in 1933 Congress took decisive
steps to create a reserve force pursuant to its Army Clause powers and
in express reliance on this Court's decision in the Selective Draft
Law Cases.  Far from showing Congressional recognition of petitioners'
asserted constitutional imperative to structure the Nation's reserve
forces under the Militia Clauses, Congress's actions since at least
1933 reveal precisely the opposite intent -- to make use of its Army
Clause powers to create a reserve force not subject to the limitations
of the Militia Clauses.  In any event, Congress's unusually explicit
reliance on a particular source of authority -- the Army Clause -- and
on particular decisions of this Court in providing for the security of
this country give special force to the Court's recognition that
"judicial deference * * * is at its apogee when legislative action
under the congressional authority to raise and support armies * * * is
challenged," Goldman v. Weinberger, 475 U.S. 503, 508 (1986) (quoting
Rostker v. Goldberg, 453 U.S. 57, 70 (1981)).

   1. The Militia Act of 1792.  The Militia Act of 1792 (Act of May 8,
1792), ch. 33, 1 Stat. 271 -- the primary legislation concerning the
militia until 1903 -- represented Congress's first effort to organize
the militia.  The Act provided generally that every able-bodied white
man between 18 and 45 years of age was to be enrolled in the militia
and required to equip and arm himself at his own expense.  However,
the Act imposed no requirements as to training, drills, or musters.
An unfortunate consequence of these omissions was that during each
armed conflict through the Spanish-American War, the militia proved
militarily inadequate to meet the Nation's needs.  The militia tended
to be poorly organized, inadequately equipped, and insufficiently
trained.  Moreover, the worrisome possibility existed that the militia
might refuse to execute federal assignments if there was uncertainty
as to whether the limitations of the Militia Clauses applied.  See
H.R. Rep. No. 1066, 82d Cong., 1st Sess. 2-5 (1951);  Wiener, 54 Harv.
L. Rev. at 187-193;  note 16, supra.

   2. The Dick Acts of 1903 and 1908.  In 1903, Congress enacted the
Dick Act, Act of Jan. 21, 1903, ch. 196, 32 Stat. 775, to remedy some
of the deficiencies of the militia system.  See H.R. Rep. No. 1094,
57th Cong., 1st Sess. (1902);  S. Rep. 2129, 57th Cong., 2d Sess.
(1902).  See also H.R. Rep. No. 1066, supra, at 2-5;  Wiener, 54 Harv.
L. Rev. at 193-195.  The Dick Act provided for an organized militia,
to be known as the National Guard, that would be equipped through
federal funds, be trained by Regular Army instructors, and conform to
the Regular Army organization.  Under the Dick Act, the National Guard
could be ordered into federal service,however, only in the three
situations enumerated in the Militia Clauses.  The National Guard was
then, as it is now, a Militia Clause organization.  Like its
forerunner, the Act made no provision for an organization comparable
to the NGUS.

   In 1908, Congress passed the Second Dick Act (Act of May 27, 1908)
ch. 204, Section 4, 35 Stat. 400, which purported to make National
Guard units available for extraterritorial service.  By permitting the
President to summon the Guard for federal service "either within or
without the territory of the United States," Section 5, 35 Stat. 400,
the Act authorized the federal government to use Guardsmen to meet the
type of military situations that in 1846 (the Mexican-American War)
and again in 1898 (the Spanish-American War) had necessitated resort
to volunteers.  See H.R. Rep. No. 1067, 60th Cong., 1st Sess. (1908);
S. Rep. No. 630, 60th Cong., Sess. (1908).

   The constitutionality of the Second Dick Act was never judicially
tested.  Following its enactment, however, Attorney General Wickersham
rendered a formal opinion that, because the National Guard remained a
militia, there was no constitutional warrant for the Act's provision
permitting use of the National Guard for general military purposes
outside national boundaries.  See 29 Op. Att'y Gen. 322 (1912).  This
opinion remains as the basis for the view that the Militia Clauses do
not permit the militia to be ordered outside the United States.
Wiener, 54 Harv. L. Rev. at 188-189.

   3. The National Defense Act of 1916.  In 1916, in response to the
concerns articulated by Attorney General Wickersham, as well as
military events on the Mexican border and in Europe, see Wiener, 54
Harv. L. Rev. at 199, Congress passed the National Defense Act of 1916
(Act of June 3, 1916), ch. 134, 39 Stat. 166.  The 1916 Act
dramatically increased federal regulation of the National Guard by
dictating its organization and the qualifications of its personnel.
/33/ More significantly, however, the Act required Guardsmen to take
oaths to obey both the President and their state governor.  This dual
oath of allegiance was thought to enable the President to draft
individual Guardsmen into the army in time of war, thus making them
available for service beyond the continental borders.  See Act of June
3, 1916, Sections 70, 73, 112, ch. 134, 39 Stat. 201, 211.  /34/ As
previously noted, the Court in the Selective Draft Law Cases, 245 U.S.
366 (1918), and Cox v. Wood, 247 U.S. 3 (1918), upheld Congress's
power under the Army Clause to draft members of the militia into
active duty service on behalf of the United States.

   4. The National Defense Act of 1933.  The National Defense Act of
1933 ch. 87, 48 Stat. 153, created the NGUS and the dual enlistment
system.  The state National Guard remained subject to the Militia
Clause.  See H.R. Rep. No. 141, 73d Cong., 1st Sess. 4 (1933).
Congress, however, expressly exercised its Army Clause power in
creating the NGUS as a reserve component of the national armed forces.
 H.R. Rep. No. 141, supra, at 3.  In keeping with Congress's
assessment of the Nation's security needs in the mid-1930's, the NGUS
was to be available only in wartime.  /35/ Significantly, however, the
Act did not require the consent of any state authorities to order the
NGUS to active duty;  indeed, there is no discussion of such a
provision in the Congressional reports.

   Congress's stated purpose in creating the NGUS was to make it
available for federal duty outside the limitations of the Militia
Clauses -- as the Selective Draft Law Cases permit -- but in a manner
that obviated the need to draft National Guard members individually.
H.R. Rep. No. 141, supra at 4-5.  The legislative history shows
unusually explicit reliance by Congress on this Court's construction
of the Army and Militia Clauses in the Selective Draft Law Cases.  See
S. Rep. No. 135, 73d Cong., 1st Sess. 2 (1933);  H.R. Rep. No. 141,
73d Cong., 1st Sess. 1-6 (1933).  /36/ The basic assumption underlying
the current structure of the armed forces -- that the NGUS will be
available to assist in whatever military missions must be carried out,
regardless of the specific limitations in the Militia Clauses -- is
thus rooted in Congress's reliance on the broad interpretation of the
Army Clause in the Selective Draft Law Cases.

   5. The Armed Forces Reserve Act of 1952.  Following World War II
and during the Korean Conflict, Congress enacted the Armed Forces
Reserve Act of 1952 to strengthen the reserve components of the Armed
Forces.  See Act of July 9, 1952, ch. 608, 66 Stat. 481.  This Act
further integrated the NGUS into the structure of the armed forces.

   For present purposes, the most significant feature of the 1952 Act
was its modification of the circumstances under which the NGUS could
be ordered into active duty.  The provision of the 1933 Act limiting
activation of the NGUS to wartime was eliminated.  66 Stat. 505;  see
note 35, supra.  In its place, the statute added 10 U.S.C. 672(b) and
(d), the provisions at issue in this case.  These provisions permit
use of the NGUS for any purpose -- not merely training -- without
regard to the existence or declaration of a war or national emergency.
 These provisions thus contrasted sharply with the provisions
governing federalization of the National Guard, which are limited to
the situations enumerated in the Militia Clauses.

   The 1952 Act was the first statute governing the NGUS containing a
gubernatorial consent provision.  /37/ Although Congress had passed a
series of statutes between 1933 and 1952 governing activation of the
NGUS, none required gubernatorial consent.  /38/ In particular,
although one provision expressly authorized activation of the NGUS for
training, there was no mention of any right of a governor to consent
or veto activation of the NGUS for this purpose.  /39/ In light of
this provision, petitioners' assertion that the Montgomery Amendment
marked the first time that the "reserved authority for militia
training" was not observed is off target.  See, e.g., Pet. Br. 30.

   6. The Montgomery Amendment.  Between 1952 and 1986, when Congress
enacted the Montgomery Amendment, 10 U.S.C. 672(f), the role of the
NGUS in the Nation's defense structure became even more significant.
As the Nation's global responsibilities grew, reliance on non-active
duty forces, including the NGUS, increased.  As former Assistant
Secretary of Defense James Webb testified, under the "Total Force"
concept, which has governed strategic planning since the early 1970's,
the national security increasingly depends on the ability to
"mobilize, deploy and employ" NGUS units anywhere in the world where
military force is needed.  J.A. 13.  See also H.R. Rep. No. 1069, 94th
Cong., 2d Sess. 3-5 (1976).  Given the global responsibilities
assigned to the NGUS, "effective and realistic training throughout the
world is a necessity * * * owed to those guardsmen who will be
committed to the battlefield, to enhance their proficiency and ability
to fight and survive." J.A. 13.  Accordingly, by 1985, more than
39,000 NGUS troops annually were being trained overseas in more than
44 different countries.  J.A. 20.

   The Montgomery Amendment is simple and straightforward -- it
prohibits a governor from withholding consent to a NGUS member or unit
being ordered to active duty for service outside the United States
"because of any objection to the location, purpose, type, or schedule
of such active duty." By the time the Montgomer Amendment was enacted,
the role of the NGUS as a full-fledged component of the national armed
forces was well-established.  As Rep. Montgomery explained during the
debate, the NGUS cannot be assigned crucial overseas missions "(i)f
the Defense Department has to worry about whether a Governor is going
to block his or her units from going to training exercises in Europe
or elsewhere." 132 Cong. Rec. 21,660 (1986).  Far from marking a break
with past tradition, therefore, the Montgomery Amendment follows
directly from the decision to create the NGUS as an Army Clause
organization available for any mission that may be carried out by this
Nation's military forces.

   E. Petitioners' Suggestion That the Federal Government May
Contravene The Limitations Of The Militia Clauses Only After
Declaration Of A War Or National Emergency Has No Support In The
Constitution's Text or History

   The claim that the Constitution requires that the NGUS be treated
as a "militia" leads to the conclusion that the federal government may
use the NGUS only for the three purposes enumerated in the Militia
Clauses -- to execute federal law, repel invasions, and suppress
insurrections.  What is more, under this view the federal government
may not train the NGUS at all, even for use in the three Militia
Clause-sanctioned circumstances.  This is a pivotal deficiency of
petitioners' claim, since it essentially renders impossible the
objective of the dual enlistment system -- combining the federal need
to maintain a sizeable armed forces reserve at federal expense with
the States' desire to maintain state militia forces at virtually no
cost to themselves.  In short, if the federal government cannot
achieve its objective of maintaining the NGUS as a genuine armed
forces reserve, available for any military mission to which it may be
assigned, there would be no point to the creation of the NGUS and the
maintenance of the dual enlistment system.  /40/

   Apparently recognizing that this result of their position is
unacceptable, petitioners seek to escape it by adopting the view of
the dissent that "before the federal government can exercise its army
power to supersede the reserved state authority over the militia, its
actions must be motivated by a 'national exigency'" that must be
identified in an "affirmative declaration" by Congress or the
President.  Pet. App. A41-A42;  see also Pet. Br. 10, 21, 21 25-26,
33-37.  This is entirely made up.  Petitioners' novel constitutional
theory is without a shred of support in the text or history of the
Constitution.  It should be firmly rejected.

   Petitioners' theory has two components, both of which are
implausible.  First, the theory requires that the three purposes
enumerated in Clause 15 be construed merely as specific illustrations
of a generic "exigent circumstances" requirement for which the militia
could be called out.  Second, and even more unlikely, petitioners'
theory implies that the Constitution itself imposes a specific
procedural requirement -- "an affirmative declaration" -- that must be
met by Congress or the President before the full scope of federal
powers under the Army Clause can be exercised.

   1. The text of the Constitution lends no support to the theory that
the three enumerated purposes in Clause 15 should be read to refer
more generally to any "national exigency." Clause 15 refers in
specific terms to three particular circumstances.  There is no mention
of the word "exigency" or "emergency" in the Militia Clauses.
Although there is undoubtedly room for debate over the scope of the
specific terms used in Clause 15 -- and, in particular, over the scope
of use permitted under the category of "repelling invasions" -- there
is nothing in the text to suggest that the specific terms of the
Militia Clauses, which after all were a carefully crafted compromise
between those who feared national power and those who believed that
the national government must be in full control of all military
forces, ought to be ignored.

   Nor does the text of the Constitution lend any support to the
procedural requirement that a national emergency must be declared
before the militia may be used for a purpose not specified in Clause
15.  In the rare instances in which the Framers sought to impose
procedural requirements on the exercise of particular powers, they did
so in specific terms.  See Art. I, Section 3, Cl. 6 (Senate shall be
on oath when trying any impeachment);  Art. I, Section 9, Cl. 7
(statement of receipts and expenditures shall be published from time
to time);  Art. II, Section 1, Cl. 8 (oath prescribed for President).
In interpreting one of the Constitution's affirmative grants of power,
it is inappropriate for the Judiciary -- absent specific
constitutional warrant -- to require that Congress or the President
engage in a particular procedural exercise before they are permitted
to employ powers conferred upon them by the Constitution.

   2. In support of their creative position concerning the necessity
for a declared national emergency, petitioners quote a number of
passages from the Framers to the effect that the federal government's
authority would be "most extensive and important in times of war and
danger," The Federalist No. 45, at 293 (Madison) (C. Rossiter ed.
1961);  that the impossibility of foreseeing future "natural
exigencies" rendered it necessary that "there can be no limitation of
that authority which is to provide for the defense and protection of
the community," The Federalist No. 23 at 154 (Hamilton);  and that the
militia would be prepared "for every military exigency of the United
States," 12 J. Sparks, The Writings of George Washington 39 (1839).
See Pet. Br. 25-26, 43.

   Quotations of this kind are undoubtedly helpful in providing
guidance in the interpretation of problematic portions of the
constitutional text.  But general statements of purpose do not
supersede the particular terms of constitutional provisions.  None of
the passages invoked by petitioners addresses the question whether the
specific terms of Clause 15 should be ignored in favor of a general
"national exigency" requirement.  Moreover, it is mistaken to argue
that the Hamilton quotation, indicating that Congress's Army Clause
powers are broad in order to confront national emergencies, entails
the conclusion that Congress's Army Clause powers are weak in
instances in which no national emergency has been declared.  The
plenary power granted to Congress by the Army Clause, see, e.g.,
Rostker v. Goldberg, 453 U.S. 57, 70-72 (1981);  United States v.
O'Brien, 391 U.S. 367, 377 (1968), gives Congress the ability to deter
war by preparing for it in advance, not simply the power to respond to
aggression after the fact.

   3. Finally, petitioners assert that this Court's decision in the
Selective Draft Law Cases, 245 U.S. 366 (1918), requires that the
broad Army Clause power can be employed only in the event of declared
war or national emergency.  In support of this assertion, petitioners
seize upon the Court's statement that "(t)he duty of exerting the
(Army Clause) power * * * was wisely left to depend upon the
discretion of Congress as to the arising of the exigencies which would
call it in part or in whole into play." 245 U.S. at 382-383 (emphasis
added).

   Petitioners' reading of the Selective Draft Law Cases is mistaken.
The Court indeed referred to "exigencies," as did Hamilton in the
passage discussed above, to justify the breadth of the Army power.
But the Court, like Hamilton, did not believe that the Army Clause
powers were limited to such circumstances.  In the very passage cited,
the Court indicated that it was for Congress -- not the Judiciary --
to determine when the needs of national security justified exercise of
the Army Clause power.  In this case, Congress has determined that
national security interests require a broad delegation of authority to
the President to activate the NGUS for training or other purposes
under 10 U.S.C. 672(b) and (d), so that the "exigency" of aggression
may be deterred or, if deterrence is not possible, confronted.  There
is no warrant in the Selective Draft Law Cases to impose any
additional requirements on the exercise of the federal government's
powers.  /41/

   The Selective Draft Law Cases arose, of course, during World War I.
 The great conflagration thus provided the dramatic backdrop against
which the Court's opinion was fashioned.  Petitioners' effort to
interpret the Court's opinion in those cases to require the existence
and declaration of a national exigency before Congress may fully
employ its Army Clause powers is essentially an attempt to confine the
Selective Draft Law Cases to their facts.  That will not do.  Simply
as an interpretation of the Court's opinion, petitioners' suggestion
is implausible.  But in addition, it ignores the fact that Congress
has expressly relied on the broad reaffirmation of its Army Clause
powers in the Selective Draft Law Cases to structure the armed forces
on which the security of this Nation depends.  See pp. 38-39, supra.
In light of this reliance, it would be particularly inappropriate now
to reconsider this Court's settled precedents from over seventy years
ago.

                              CONCLUSION

   The judgment of the court of appeals should be affirmed.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   STUART M. GERSON

      Assistant Attorney General

   THOMAS W. MERRILL

      Deputy Solicitor General

   JAMES A. FELDMAN

      Assistant to the Solicitor General

   ANTHONY J. STEINMEYER

   E. ROY HAWKENS

      Attorneys

   LT. COL. MARK A. STEINBECK

      Office of The Judge Advocate General Department of the Army

   MARCH 1990

   /1/ See Art. I, Section 8, Cl. 11 (Congress's power to declare
war);  Art. I, Section 10, Cl. 1 (States forbidden to enter into
treaties);  Art. I, Section 10, Cl. 3 (States forbidden to enter into
agreements with foreign powers);  Art. II, Section 3, Cl. 3 (President
shall receive ambassadors).

   /2/ The status of the Naval Reserve, see 10 U.S.C. 261(a)(3), which
is not a part of the NGUS/National Guard system, is not at issue in
this case.

   /3/ An individual enlisting in the National Guard also enlists in
the NGUS, see 32 U.S.C. 301.  However, because no statute requires
that all members of the National Guard be members of the NGUS as well,
there may be rare instances in which an individual's membership in the
NGUS is terminated, while his membership in the state National Guard
is not.  See Zitser v. Walsh, 352 F. Supp. 438, 440 (D. Conn. 1972).

   /4/ The authority to call the National Guard into federal service
pursuant to 10 U.S.C. 3500, 8500, overlaps substantially with the
authority to call the militia into federal service pursuant to 10
U.S.C. 331-333.

   /5/ Twenty-four States have statutes providing for a state defense
force or a state guard that is separate from the National Guard:
Alabama, Ala. Code Section 31-2-8 (1975);  Alaska, Alaska Stat.
Section 26.05.100 (1962);  California, Cal. Mil. & Vet. Code Section
120 (West 1988);  Georgia, Ga. Code Ann. Section 38-2-3(a)(3) (1982 &
Supp. 1989);  Indiana, Ind. Code Section 10-2-8-1 (1988);  Louisiana,
La. Rev. Stat. Ann. Section 29:5 (West 1989);  Maryland, Md. State
Guard Code Ann. art. 65, Section 62 (1983);  Massachusetts, Mass. Ann.
Laws ch. 33, Section 10 (Law. Co-op. 1983);  Michigan, Mich. Comp.
Laws Ann. Section 32.651 (West 1985 & Supp. 1989);  Mississippi, Miss.
Code Ann. Section 33-5-51 (1972 & Supp. 1989);  Montana, Mont. Code
Ann. Section 10-2-701 (1988);  Nebraska, Neb. Rev. Stat. Section
55-201 (1988);  New Mexico, N.M. Stat. Ann. Section 20-5-1 (1989);
New York, N.Y. Military Law Section 165 (McKinney 1953 & Supp. 1990);
Ohio, Ohio Rev. Code Ann. Section 5920.01 (Anderson 1977 & Supp.
1988);  Oregon, 1989 Or. Laws 361 (amending Or. Rev. Stat. Ann.
Section 396.105 (1987));  Rhode Island, R.I. Gen. Laws Section 30-5-5
(1982);  South Carolina, S.C. Code Ann. Section 25-3-10 (Law. Co-op.
1977);  Tennessee, Tenn. Code Ann. Section 58-1-402 (1980);  Texas,
Tex. Gov't Code Ann. Section 231.051 (Vernon 1988);  Utah, Utah Code
Ann. Section 39-4-1 (1988);  Vermont, Vt. Stat. Ann. tit. 20, Section
1151 (1987);  Virginia, Va. Code Ann. Section 44-1 (1986 & Supp.
1989), Washington, Wash. Rev. Code Section 38.16.040 (1964).
Governors from at least six other states have the statutory authority
to create a state defense force:  Colorado, Colo. Rev. Stat. Section
28-4-104 (1989);  Delaware, Del. Code Ann. tit. 20 Section 301 (1985);
 Hawaii, Haw. Rev. Stat. Section 122A-2 (1988);  Kentucky, Ky. Rev.
Stat. Ann. Section 37.170 (Michie 1985);  New Jersey, N.J. Rev. Stat.
Ann. Section 38A:9-1 (1968);  Wyoming, Wyo. Stat. Section 19-3-101
(1977).  Minnesota law appears to recognize a "state guard," in
addition to the National Guard.  See Minn. Stat. Ann. Sections 190.06,
191.09 (West 1962 & Supp. 1990).

   /6/ Cf. Preparedness Training in Va., Wash. Post, Aug. 9, 1987, at
B1, B10.

   /7/ Congress enacted the Montgomery Amendment three times with
identical language.  It was first enacted on October 18, 1986, as part
of the fiscal 1987 continuing appropriations resolution.  H.R.J. Res.
738, Pub. L. No. 99-500, Section 9122, 100 Stat. 1783-127.  It was
then included in the corrected version of that resolution enacted on
October 30, 1986.  Pub. L. No. 99-591, Section 9122, 100 Stat.
3341-127.  Finally, it was enacted on November 14, 1986, as part of
the National Defense Authorization Act for Fiscal Year 1987, Pub. L.
No. 99-961, Section 522, 100 Stat. 3871.

   /8/ Congress expressly stated its intent to create the NGUS as an
Army Clause organization when it passed the legislation first
establishing the dual enlistment system in 1933.  See pp. 38-39,
infra.

   /9/ Just as Congress expressly stated its intent to create the NGUS
as an Army Clause organization, it similarly was quite clear in
stating its intent to organize the National Guard pursuant to its
Militia Clause powers.  See pp. 38-39, infra.

   /10/ The draft law at issue in the Selective Draft Law Cases and
Cox v. Wood was enacted on May 18, 1917 (ch. 15, 40 Stat. 76), one
month after Congress declared war in World War I.  Act of Apr. 6,
1917, ch. 1, 40 Stat. 1, S. J. Res. 1, 65th Cong. 1st Sess.).  Section
1 (Second) of the draft law (40 Stat. 76) expressly authorized the
President "(t)o draft into the military service of the United States *
* * any or all members of the National Guard" to "serve therein for
the period of the existing emergency unless sooner discharged."
Section 1 (Third and Fourth) also authorized the drafting of 1,000,000
men other than National Guardsmen.  40 Stat. 76-77.  All draftees were
to serve "for the period of the war, unless sooner terminated by
discharge or otherwise." Act of June 15, 1917, ch. 29, Section 4, 40
Stat. 217.

   The 1917 draft depended upon the mechanism for drafting National
Guard members created by statute the previous year.  The National
Defense Act, ch. 134, 39 Stat. 166, had provided for drafting into
federal service of individual members of the National Guard at any
future time "(w)hen Congress shall have authorized the use of the
armed land forces of the United States, for any purpose requiring the
use of troops in excess of those of the Regular Army * * * to serve
therein for the period of the war unless sooner discharged." Section
111, 39 Stat. 211.

   /11/ Petitioners correctly state (Pet. Br. 33-34) that the
Selective Draft Law Cases did not involve challenges by members of the
organized militia or National Guard.  See Brief for the United States
at 52, 60, Selective Draft Law Cases, 245 U.S. 366 (1918).  Nor did
Cox v. Wood.  The point is irrelevant, however, because those cases
did involve members of the unorganized militia, and the Militia
Clauses make no distinction between the two classes of the militia.
The power to draft into the Army members of the organized militia --
who then as now consisted of members of the state National Guard --
was upheld in Ex parte Dorstal, 243 F. 664 (N.D. Ohio 1917).

   /12/ In numerous other cases, this Court has established that
Congress enjoys plenary authority under the Army Clause to provide for
the national defense.  E.g., Rostker v. Goldberg, 453 U.S. 57, 65
(1981);  Schlesinger v. Ballard, 419 U.S. 498, 510 (1975);  United
States v. O'Brien, 391 U.S. 367, 377 (1968);  Tarble's Case, 80 U.S.
(13 Wall.) 397, 408 (1871);  Houston v. Moore, 18 U.S. (5 Wheat.) 1
(1820).  Moreover the Necessary and Proper Clause (U.S. Const. Art. I,
Section 8, Cl. 18) grants Congress broad power to select any means to
achieve the ends within the scope of the enumerated powers under
Article I of the Constitution.  M'Culloch v. Maryland, 17 U.S. (4
Wheat.) 316 (1819).  Taken together, these two Clauses compel the
conclusion that Congress's authority to provide for the national
defense is plenary and unlimited by the Militia Clauses.

   /13/ Indeed, the lead plaintiff in the Selective Draft Law Cases,
like petitioners here, expressly relied upon the power reserved to the
States to train the militia.  He argued that, under the draft law, the
plaintiffs "would be taken from the unorganized militia and forced to
serve in the regular army in violation of the provisions * * *
reserv(ing) to the States the authority of training the militia and
the appointment of officers." Brief of Plaintiff in Error at 16, Arver
v. United States (Selective Draft Law Cases), 245 U.S. 366 (1918).

   /14/ See also 245 U.S. at 382 (States retain control over the
militia "to the extent that such control was not taken away by the
exercise by Congress of its power to raise armies.");  id. at 384
(referring to fact that "power granted to Congress to raise armies * *
* was susceptible of narrowing the area over which the militia clause
operated").  The Court also observed that the fact that Congress had
provided for calling the militia into federal service under the
Militia Clauses without exerting its Army Clause power does not lead
to the conclusion "that the latter power when exerted was not complete
to the extent of its exertion and dominant." Id. at 383.

   /15/ NGUS troops were used in each of these operations.  See Pet.
App. A59-A60 (Libya and Grenada);  J. Mahon, History of the Militia
and the National Guard 184-197 (World War II), 208-210 (Korea),
242-243 (Vietnam) (1983).

   /16/ Indeed, there is precedent in our history for a refusal by
militiamen to undertake a mission outside the United States, on the
ground that it did not fall within the three purposes specified in
Clause 15.  In the War of 1812, New York militia units refused to
cross into Canada to fight British soldiers there on the ground that
to do so could not be "to repel an invasion." See Selective Draft Law
Cases, 245 U.S. 366, 384-385 (1918);  Wiener, The Militia Clause of
the Constitution, 54 Harv. L. Rev. 181, 189 (1940).  It was feared for
similar reasons that the militia could not be used in the
Mexican-American War and the Spanish-American War.  See id. at 190,
192.  See also 29 Op. Att'y Gen. 322 (1912) (discussing extent to
which militia might be available for use on foreign soil).  The very
purpose of creating the NGUS was to make available a reserve force
that, as a component of the federal armed forces, would not be subject
to these constraints.  See pp. 38-39, infra.

   /17/ Petitioners' argument would have implications beyond the
international arena.  In September 1957, Governor Faubus of Arkansas
called state National Guardsmen to active duty to oppose orders of a
federal district court requiring the desegregation of Central High
School in Little Rock.  By virtue of the serious threat to national
order, President Eisenhower in turn ordered "into the active military
service of the United States * * * units of the National Guard of the
United States and of the Air National Guard of the United States
within the State of Arkansas" to enforce the federal court order.
Exec. Order No. 10,730, 3 C.F.R. 389, 390 (1954-1958 Comp.).  The NGUS
units remained on duty for the balance of the school year.  See
generally Cooper v. Aaron, 358 U.S. 1, 9-12 (1958).

   President Eisenhower's order was specifically addressed to the
NGUS, not to the state National Guard units.  The order cited 10
U.S.C. 332-334, provisions under which either "the militia" or "the
armed forces" could be utilized to execute federal law.  Had the
President "called" the National Guard -- the state militia -- into
federal service, Governor Faubus, who was largely responsible for the
defiance of federal law, would have remained in the chain of command
and could have used his position to thwart the efforts to vindicate
the court's desegregation orders.  See 10 U.S.C. 3500, 8500 (orders to
call National Guard into federal service "shall be issued through the
governors of the States").  Because, however, the NGUS was available
as a component of the armed forces, over which Governor Faubus could
exercise no control, the President chose instead to order the NGUS
into active service to meet the emergency.  See J. Mahon, History of
the Militia and the National Guard 224-226 (1983).

   /18/ Indeed, neither petitioners, amici States, nor the dissenting
opinion in the court of appeals make clear the precise limits to
Congressional power under the Militia Clauses.  Presumably, all would
agree that the national armed forces may constitutionally maintain
reserve forces, aside from the NGUS, that are not subject to the
Militia Clauses.  See 10 U.S.C. 261.  Yet, it is difficult to see why,
if Congress may maintain a reserve force at all, Congress cannot (1)
give state governors a voice in selection of officers for such reserve
forces, (2) permit state governors to employ such reserve forces for
legitimate state functions, and (3) permit state governors to have a
limited veto power over the federal use of such reserve forces if they
are needed for legitimate state purposes.  Since the NGUS is simply a
reserve force with all of these features, petitioners must identify
which features convert what otherwise would be a reserve branch of the
national armed forces into a militia governed by the Militia Clause.
They have failed to do so.

   /19/ Petitioners (Pet. Br. 8 n.1, 23) cite this Court's statement
in Maryland v. United States, 381 U.S. 41, vacated and modified on
other grounds, 382 U.S. 159 (1965), that "(t)he National Guard is the
modern Militia reserved to the States" by the Militia Clauses.  381
U.S. at 46 (emphasis added).  Because Maryland involved state National
Guard units -- not NGUS units -- the Court's statement is correct but
of no relevance to the constitutional status of the NGUS, the sole
issue in this case.  In any event, the only issue in Maryland was
whether, at a time when a state National Guard unit had not been
called into federal service, a Guard officer who also served as a
caretaker of the unit's federally provided equipment was an "employee"
of the federal government for purposes of the Federal Tort Claims Act.
 The Court held that he was not.  The case did not turn on any issue
of constitutional interpretation, and the Court did not purport to
decide any such question.

   Petitioners also cite several military court decisions that suggest
that the gubernatorial consent requirements of 10 U.S.C. 672 have
constitutional underpinnings in the Militia Clause.  United States v.
Self, 13 M.J. 132, 135 (C.M.A. 1982);  United States v. Peel, 4 M.J.
28, 29 (C.M.A. 1977);  United States v. Hudson, 5 M.J. 413, 418
(C.M.A. 1978).  See Pet. Br. 29 n.20.  The constitutional source of
authority for the NGUS was not at issue in any of those cases, and the
statements cited were unaccompanied by even a cursory analysis of the
constitutional authority for the NGUS under the Army or Militia
Clauses.  The issue in each case related to whether accused Guardsmen
had properly been on active duty in the NGUS when military authorities
attempted to assert court-martial jurisdiction, and the holdings of
those cases have been legislatively overruled by 10 U.S.C. 802(d).
Because the cases turned on applicable statutes and regulations, the
brief statements in the opinions suggesting that the States' consent
to the Guardsmen's federal service was constitutionally necessary were
at best dicta.

   /20/ From 1981 through 1987, Congress provided nearly $47 billion
for manning, equipping, and training the National Guard and the NGUS.
J.A. 14.  For fiscal year 1990, Congress has authorized over $8
billion to support these forces.  Department of Defense Authorizations
Act, 1990, Pub. L. No. 101-165, 103 Stat. 1112.

   /21/ Where, as here, the Constitution provides two alternative
sources of federal power, no rule of harmonious construction requires
that the limitations of one source be transposed to the other.  Heart
of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964), which
upheld the public accommodations provisions of the Civil Rights Act of
1964, 42 U.S.C. 2000a et seq., illustrates the point.  The Civil
Rights Cases, 109 U.S. 3 (1883), had held that state action was a
necessary element of a violation of the Fourteenth Amendment.  In
1964, Congress sought to outlaw racial discrimination in privately
owned public accommodations.  The Court stated in Heart of Atlanta
that "Congress based the Act on Section 5 and the Equal Protection
Clause of the Fourteenth Amendment as well as its power to regulate
interstate commerce under Art. I, Section 8, Cl. 3 of the
Constitution." 379 U.S. at 249.  The Court then upheld the Act under
the Commerce Clause without reaching the Fourteenth Amendment
question.  379 U.S. at 250.  Thus, because Congress had power to reach
private discriminatory action under one constitutional provision (the
Commerce Clause), the Court did not have to consider whether Congress
had exceeded its power under a different provision (the Fourteenth
Amendment).

   /22/ Amici also argue that to recognize the NGUS as an "Army" and
not a "Militia" would "amount to unlawful Congressional abolition of
the militia." Amici States Br. 42.  In support of this argument, amici
quote United States v. Miller, 307 U.S. 174, 178 (1939), in which this
Court held that the Second Amendment was intended to "assure
continuation and render possible the effectiveness of" the militia.
Amici's argument is insubstantial.  Although Miller indeed held that
the intent of the Second Amendment was to preserve the militia from
Congressional abolition, the means chosen to accomplish this purpose
was to forbid Congress from infringing "the right of the people to
keep and bear arms." No action taken by the federal government in this
case even remotely detracts from the ability of state National
Guardsmen to bear arms as appropriate to their tasks.  In fact, by
offering the States use of members of the NGUS at federal expense, the
federal government has substantially enhanced the States' ability to
maintain an effective militia.

   /23/ Those who favored state control argued that, without a state
military force, the States "would pine away to nothing after such a
sacrifice of power." 2 M. Farrand, The Records of the Federal
Convention 331 (Ellsworth) (1911) (hereinafter Farrand).  They also
"took notice that the States might want their militia for defense
against invasions and insurrections, and for enforcing obedience to
their laws." 2 Farrand 332 (Sherman).  And some believed that military
power was not "as safe in the hands of eighty or a hundred men taken
from the whole continent, as in the hands of two or three hundred
taken from a single State." 2 Farrand 386 (Gerry).

   /24/ Among those who originally favored federal control were
Madison, who proposed that power over the militia should be
transferred entirely to the national government, the "authority
charged with the public defense," 2 Farrand 332 (remarks of Madison),
and Hamilton, who advanced a proposal that would have given the
federal government primary control over the militia, see J. Madison,
Notes of Debates in the Federal Convention 164 (Hunt ed. 1987).
Others "saw no room for * * * distrust of the Genl Govt," 2 Farrand
331 (Pinkney), and were "more apprehensive of the confusion of the
different authorities on this subject than of either." 2 Farrand 331
(Langdon).  They believed that national authority over the militia was
necessary because "the Militia were every where neglected by the State
Legislatures." 2 Farrand 387 (Randolph).

   /25/ Amicus National Guard Association of the United States argues
that requiring training of the NGUS in Central America was simply the
prescription of "discipline" permitted by the Militia Clauses.
Because the NGUS is not a Militia Clause organization, Amicus errs in
limiting Congress's power over the NGUS to the prescription of
discipline.  See note 40, infra.  In any event, it is at best unclear
that the term "discipline" was intended to have such a broad meaning.
See 2 Farrand 385 (referring to "discipline" as "the manual exercise
evolution &c").

   /26/ See also 2 Farrand 509 (Gerry), 616-617 (Mason, Madison);  2
J. Elliot, The Debates in the Several State Conventions on the
Adoption of the Federal Constitution 136 (Nason) (2d ed. 1854)
(hereinafter Elliott's Debates);  3 Elliot's Debates 51 (Henry), 169
(Henry), 380 (Mason).

   /27/ Hamilton's words echo a letter written by Washington in 1776,
in which he complained that "(i)f I was called upon to declare upon
Oath * * * whether the Militia have been most serviceable or hurtful
upon the whole;  I should subscribe to the latter." See Wiener, The
Militia Clause of the Constitution, 54 Harv. L. Rev. 181, 183 (1940).

   /28/ Hamilton articulated the classic defense of the decision to
grant Congress broad powers in the Army Clause:

         The authorities essential to the common defense are these:
      to raise armies;  to build and equip fleets;  to prescribe rules
      for the government of both;  to direct their operations;  to
      provide for their support.  These powers ought to exist without
      limitation, because it is impossible to foresee or to define the
      extent and variety of national exigencies, and the correspondent
      extent and variety of the means which may be necessary to
      satisfy them.  The circumstances that endanger the safety of
      nations are infinite, and for this reason no constitutional
      shackles can wisely be imposed on the power to which the care of
      it is committed.  This power ought to be coextensive with all
      the possible combinations of such circumstances;  and ought to
      be under the direction of the same councils which are appointed
      to preside over the common defense.

                      * * *

         Whether there ought to be a federal government intrusted with
      the care of the common defense is a question in the first
      instance open to discussion;  but the moment it is decided in
      the affirmative, it will follow that that government ought to be
      clothed with all the powers requisite to the complete execution
      of its trust.  And unless it can be shown that the circumstances
      which may affect the public safety are reducible within certain
      determinate limits;  unless the contrary of this position can be
      fairly and rationally disputed, it must be admitted as a
      necessary consequence, that there can be no limitation of that
      authority which is to provide for the defense and protection of
      the community in any matter essention to its efficacy -- that
      is, in any matter essential to the formation, direction, or
      support of the National Forces.

The Federalist No. 23, at 153-154 (C. Rossiter ed. 1961) (emphasis
omitted).

   /29/ Petitioners also cite Hamilton's statement in The Federalist
No. 29 that the militia would provide the "best possible security"
against a standing army.  The Federalist No. 29, at 184-185 (C.
Rossiter ed. 1961).  Pet. Br. 20;  see also Pet. App. A29 & n.18.
Hamilton's argument, however, was not that the militia would provide a
force that could be militarily pitted against a standing army.
Rather, his point was that a well-governed militia would limit or
eliminate the need for Congress to maintain a large standing army.
Thus, immediately before the quoted words, Hamilton stated that the
militia was "the only substitute that can be devised for a standing
army." The Federalist No. 29, at 185 (Rossiter ed. 1961) (emphasis
added).  Elsewhere in The Federalist No. 29, Hamilton argued that
federal power over the militia "ought, as far as possible to take away
the inducement and the pretext" to a large standing army and would
enable the federal government to "dispense with the employment" of a
standing army.  Id. at 183.  He concluded that "(t)o render an army
unnecessary will be a more certain method of preventing its existence
than a thousand prohibitions on paper." Ibid.  Ironically, petitioners
here object to Congress's effort to create the NGUS as a reserve force
to limit the size of the standing army.

   /30/ It is difficult to conceive of circumstances today in which
fear of a federal occupying army illegally conquering a State would
have any substance.  However, we note that, even if there were a
legitimate state interest in protecting itself against such an
eventuality, the current statutory scheme provides authority for the
States to organize state defense forces pursuant to 32 U.S.C. 109(c).

   /31/ In Maryland, it was urged that Congress would use its power
over the militia to "march the whole militia of Maryland to the
remotest part of the Union, and keep them in service as long as they
think proper." 3 Farrand 208 (Martin).  In response to concerns of
this type, Madison emphasized that the political structure of the
federal government would make it unlikely that Congress's power over
the militia would be abused by, for example, "drag(ging) the militia
unnecessarily to an immense distance." 3 Elliot's Debates 381-382.
Such abuses would be unlikely from "a government of a federal nature,
consisting of many coequal sovereignties, and particularly having one
branch chosen from the people." Ibid.  See also The Federalist No. 10
(Madison).  Cf. Garcia v. San Antonio Metropolitan Transit Authority,
469 U.S. 528, 551 (1985) (quoting Madison's statement that the federal
government "will partake sufficiently of the spirit (of the States),
to be disinclined to invade the rights of the individual States, or
the prerogatives of their governments").

   /32/ Even petitioners concede that the Framers "did not * * *
intend the states to make positive national policy in the area of
defense or foreign relations matters." Pet. Br. 47-48.  Accord, Amici
States Br. 4.

   /33/ The Act reserved to the States the authority to appoint
officers of the National Guard as required by the Militia Clauses;
significantly, however, the Act prescribed the qualifications for the
appointment of such officers, and provided for their recognition by
federal authorities and for their removal should they be found
disqualified.  See Act of June 3, 1916, ch. 134, Sections 74, 75, 77,
79, 39 Stat 201-202, 202, 202-203.  Analogous provisions survive
today.  See 32 U.S.C. 301, 307-310, 323-324.  The Act also required
the Guard to train more extensively, and it provided that the Guard
was to receive federal pay for armory drills, administrative work, and
field encampments.  Act of June 3, 1916, Sections 92, 109, 110, 39
Stat. 206, 210.  Finally, the Act provided that the Guard was to be
organized so as to form complete tactical units in conformity with the
organization of the Regular Army.  Sections 60, 64, 39 Stat. 197,
198-199.

   /34/ One commentator suggested that the draft provisions of the
1916 Act were unconstitutional because the taking of the federal oath
of allegiance by members of the militia

      would seem to constitute an express waiver of their
      constitutional right to object to a draft for other than the
      constitutionality specified purpose (provided in the Militia
      Clauses).  Congress accomplishes this result by using its
      constitutional power to organize the militia to abolish the
      constitutional limitations placed on its use of the militia.  A
      state is given the choice of having no militia or one
      unprotected by constitutional guarantees.  The net result is
      that the old sort of militia, known to the Constitution, is to
      be done away with.

Note, The Status of State Militia Under the Hay Bill, 30 Harv. L. Rev.
176, 178-79 (1916).

   This view, however, was rejected by the House Military Affairs
Committee, see H.R. Rep. No. 297, 64th Cong., 1st Sess. 2-9 (1916).
Its weak point, stated a contemporary commentator, was the assumption
that members of the militia could not be drafted into the Army and
thus become available for general military service:

         A militiaman, organized or unorganized, is a citizen.
      Concededly an unorganized, or reserve, militiaman is subject to
      draft;  otherwise, since all arms-bearing citizens are such
      militia, whence shall our armies come?  An organized militiaman
      is no less a citizen and is much better prepared, largely at
      Federal expense, to make an effectual contribution to the
      country's cause in time of war.

Ansell, Status of State Militia Under the Hay Bill, 30 Harv. L. Rev.
712, 723 (1917).

   /35/ Section 5 of the statute provided that "in time of peace, (the
members of the NGUS) shall be administered, armed, uniformed,
equipped, and trained in their status as the National Guard of the
several States." 48 Stat. 156, 32 U.S.C. 4a (1934), repealed, Armed
Forces Reserve Act of 1952, ch. 608, Section 803, 66 Stat. 505.
Congress's decision that, under the political and military situation
facing the nation in 1933, the NGUS would be needed only in a war does
not suggest that Congress believed that, as a matter of constitutional
law, the NGUS could only be available under such circumstances.  Still
less does it provide any basis for petitioners' argument that today,
long after this limitation was removed from the statute, the Court
should require such a limitation as a matter of constitutional law.
Pet. Br. 37-38.  As we discuss below, see infra at 42-46, petitioners'
entirely novel theory that the Militia Clauses can be "trumped" by the
Army Clause only in the event of a war or national emergency
appropriately declared by Congress or the President has no basis in
the text or history of the Constitution.  There is in addition no
mention of this theory in the legislative history of the 1933 Act, nor
is there any indication whatsoever that Congress limited use of the
NGUS to wartime to avoid perceived constitutional objections.

   /36/ For example, H.R. Rep. No. 141, supra, at 3, concludes:

         (T)here is no constitutional or legal objection to the
      creation through appropriate amendments of the National Defense
      Act, of the "National Guard of the United States" as a reserve
      organization of the Army of the United States, under the Army
      provisions of the Constitution, leaving the National Guard of
      the States, Territories, and the District of Columbia, organized
      under the militia provisions of the Constitution, intact and
      unaffected by such amendments.

This conclusion was based directly upon this Court's decision (H.R.
Rep. No. 141, supra, at 4):

         The constitutional and legislative validity of the amendment
      to the National Defense Act to be proposed * * * is established
      by the decisions of the Supreme Court of the United States.
      (Tarble's case, 80 U.S. (13 Wall.) 397, 408;  Arver v. United
      States, (selective draft cases), 245 U.S. 366.).

The Report went on to quote extensively from the Selective Draft Law
Cases opinion.

   /37/ Although questions concerning the constitutionality of the
bill were raised at the hearings, see Reserve Components:  Hearings on
H.R. 4860 Before the House Comm. on Armed Services, 82d Cong., 1st
Sess. 475-76, 482-83 (1951), the gubernatorial consent provision
itself was never mentioned.  See id. at 788, 798.

   /38/ See Act of June 19, 1935, ch. 277, 49 Stat. 391 (amending
Section 38 of the National Defense Act of 1916 to provide for
activation of the NGUS in a national emergency for not more than 15
days unless the emergency was declared by Congress, with no provision
for gubernatorial consent);  Act of June 15, 1933, ch. 87, Section 38,
48 Stat. 155 (amending Section 38 of the National Defense Act of 1916
to authorize activation of NGUS officers for service in the general
staff or the National Guard Bureau, with no provision for
gubernatorial consent).

   /39/ See Act of March 25, 1948, ch. 157, Section 5(a), 62 Stat. 90,
amending Section 92 of the National Defense Act of 1916 (39 Stat. 206)
to authorize training for the NGUS on the same basis as for the
Organized Reserve Corps. Cf. S. Rep. No. 625, 80th Cong., 1st Sess. 4
(1947).

   /40/ This view is a necessary consequence not only of the position
advanced by petitioners in this litigation, but also of the position
advanced by the amicus National Guard Association of the United
States.  Amicus argues that the authority of Congress to discipline
the militia pursuant to the Militia Clauses is "broad enough to
encompass orders for National Guard units to conduct peacetime
training missions overseas," see Motion of Amicus for Leave to
Participate in Oral Argument at 4 (filed February 23, 1990).  The
argument erroneously presupposes that the National Guard was ordered
to train in Honduras;  in fact, it was the NGUS that was ordered to so
train.  More importantly, however, the argument suggests, as does that
of petitioners, that federal control of the NGUS is governed by the
Militia Clauses, which include the restrictions of Clause 15 on
permissible uses of the militia.  Although amicus argues that the
"case can and should be resolved without ever reaching the much
broader Army Clause argument raised by the federal government," id. at
5, to decide the case on the grounds advanced by amicus would
necessarily be to proceed on the mistaken assumption that the NGUS is
a "militia" under the Constitution.  It is emphatically not.  The case
thus squarely raises the question of whether the NGUS must
constitutionally be treated as "militia," and this Court should decide
the case on that ground.

   /41/ Petitioners also cite the Court's statement that the Militia
Clauses "diminished the occasion for the exertion by Congress of its
military power beyond the strict necessities for its exercise," 245
U.S. at 383, as support for the proposition that Congress could only
exercise its Army Clause powers over the NGUS where a "strict
necessity," i.e., a declared national exigency, existed.  Far from
limiting the use to which Congress may put the militia, the Court in
this passage was explaining that the availability of the militia may
make it unnecessary for the federal government to maintain a large
standing army.  Nothing in the passage suggests that Congress's
decision to employ its Army Clause powers is limited to situations in
which it has declared a national exigency.

   APPENDIX