b'Authority Under the Defense Base Closure and Realignment\nAct to Close or Realign National Guard Installations\nWithout the Consent of State Governors\nThe federal government has authority under the Defense Base Closure and Realignment Act of 1990, as\namended, to close or realign a National Guard installation without the consent of the governor of the\nstate in which the installation is located.\n\nAugust 10, 2005\n\nMEMORANDUM OPINION FOR THE CHAIRMAN\nDEFENSE BASE CLOSURE AND REALIGNMENT COMMISSION\nThe Defense Base Closure and Realignment Act of 1990 (\xe2\x80\x9cBase Closure Act\xe2\x80\x9d\nor \xe2\x80\x9cDBCRA\xe2\x80\x9d) establishes a process by which the federal government is authorized\nto close and realign federal military installations in the United States. Pub. L. No.\n101-510, \xc2\xa7 2901, 104 Stat. 1485, 1808, reprinted as amended in 10 U.S.C. \xc2\xa7 2687\nnote (2000 & Supp. IV 2004). You have asked the Attorney General whether the\nfederal government has authority under the Act to close or realign a National\nGuard installation without the consent of the governor of the state in which the\ninstallation is located, particularly given two earlier-enacted statutes that require\ngubernatorial consent before a National Guard \xe2\x80\x9cunit\xe2\x80\x9d may be \xe2\x80\x9crelocated or\nwithdrawn,\xe2\x80\x9d 10 U.S.C. \xc2\xa7 18238 (2000), or \xe2\x80\x9cchange[d]\xe2\x80\x9d as to its \xe2\x80\x9cbranch, organization, or allotment,\xe2\x80\x9d 32 U.S.C. \xc2\xa7 104(c) (2000). See Letter for Alberto R. Gonzales,\nAttorney General, from Anthony J. Principi, Chairman, Defense Base Closure and\nRealignment Commission (May 23, 2005). The Attorney General has delegated to\nthis Office responsibility for rendering legal opinions to the various federal\nagencies. See Foreword, 29 Op. O.L.C. v (2005). We conclude that the federal\ngovernment has the requisite authority.\nI.\nA.\nCongress adopted the Base Closure Act in order \xe2\x80\x9cto provide a fair process that\nwill result in the timely closure and realignment of military installations inside the\nUnited States.\xe2\x80\x9d DBCRA \xc2\xa7 2901(b). 1 Congress acted against the backdrop of\n\xe2\x80\x9crepeated, unsuccessful, efforts to close military bases in a rational and timely\nmanner.\xe2\x80\x9d Dalton v. Specter, 511 U.S. 462, 479 (1994) (Souter, J., concurring in\npart and concurring in judgment). The initial Act authorized rounds of closure and\nrealignment for 1991, 1993, and 1995; amendments in 2001 (and again in 2004)\n1\nCitations of the Act are of the sections as they appear in the note to 10 U.S.C. \xc2\xa7 2687 (2000 &\nSupp. IV 2004).\n\n139\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\nprovided for another round in 2005. See National Defense Authorization Act for\nFiscal Year 2002, Pub. L. No. 107-107, \xc2\xa7\xc2\xa7 3001\xe2\x80\x933008, 115 Stat. 1012, 1342\xe2\x80\x9353\n(2001); Ronald W. Reagan National Defense Authorization Act for Fiscal Year\n2005, Pub. L. No. 108-375, div. A, \xc2\xa7 1084, div. B, \xc2\xa7\xc2\xa7 2831\xe2\x80\x932834, 118 Stat. 1811,\n2064, 2132\xe2\x80\x9334 (2004). While in force, the Base Closure Act (which under current\nlaw expires on April 15, 2006) serves as \xe2\x80\x9cthe exclusive authority for selecting for\nclosure or realignment, or for carrying out any closure or realignment of, a military\ninstallation inside the United States.\xe2\x80\x9d DBCRA \xc2\xa7 2909(a). 2 The Act\xe2\x80\x99s scope is\nbroad: It defines \xe2\x80\x9cinstallation\xe2\x80\x9d as \xe2\x80\x9ca base, camp, post, station, yard, center,\nhomeport facility for any ship, or other activity under the jurisdiction of the\nDepartment of Defense, including any leased facility.\xe2\x80\x9d Id. \xc2\xa7 2910(4). And \xe2\x80\x9c[t]he\nterm \xe2\x80\x98realignment\xe2\x80\x99 includes any action which both reduces and relocates functions\nand civilian personnel positions but does not include a reduction in force resulting\nfrom workload adjustments, reduced personnel or funding levels, or skill imbalances.\xe2\x80\x9d Id. \xc2\xa7 2910(5).\nIn addition to reaching broadly, the Act also establishes an \xe2\x80\x9celaborate selection\nprocess\xe2\x80\x9d for accomplishing its purpose, by assigning specific roles to several\nfederal actors who are subjected to rigid statutory deadlines. Dalton, 511 U.S. at\n464 (opinion of Court). The process for the 2005 round begins when the Secretary\nof Defense certifies to Congress that a need exists to close and realign military\ninstallations and that such closures and realignments would \xe2\x80\x9cresult in annual net\nsavings for each of the military departments.\xe2\x80\x9d DBCRA \xc2\xa7 2912(b)(1)(B). The\nprocess may proceed thereafter only if, no later than March 15, 2005, the President\nnominates for Senate consideration persons to constitute the Defense Base Closure\nand Realignment Commission. Id. \xc2\xa7 2912(d). Although the Commission\xe2\x80\x99s actions\nare expressly subject to the approval or disapproval of the President (as explained\nbelow) and the Act does not restrict the removal of commissioners, the Commission is \xe2\x80\x9cindependent\xe2\x80\x9d of other federal departments, agencies, or commissions. Id.\n\xc2\xa7 2902(a); see generally Removal of Holdover Officials Serving on the Federal\nHousing Finance Board and the Railroad Retirement Board, 21 Op. O.L.C. 135,\n135, 138 n.5 (1997); see also Holdover and Removal of Members of Amtrak\xe2\x80\x99s\nReform Board, 27 Op. O.L.C. 163, 166\xe2\x80\x9368 (2003).\nThe next step after the nomination of commissioners is for the Secretary of\nDefense to develop a list of the military installations in the United States that he\nrecommends for closure or realignment; he must submit that list to the Commission by May 16, 2005. DBCRA \xc2\xa7 2914(a). In preparing his list, the Secretary must\n2\n\nThe Act makes an exception for closures and realignments not covered by 10 U.S.C. \xc2\xa7 2687. See\nDBCRA \xc2\xa7 2909(c)(2). Section 2687 applies to closures of military installations at which 300 or more\ncivilians are employed and to realignments of such installations that involve a reduction by more than\n1,000 (or fifty percent) of the civilian personnel. In other words, small closures and realignments are\nnot subject to the Act\xe2\x80\x99s exclusivity provision. This does not mean, however, that such closures and\nrealignments cannot be carried out under the Act.\n\n140\n\n\x0cAuthority Under Base Closure Act to Close National Guard Installations\n\n\xe2\x80\x9cconsider all military installations inside the United States equally without regard\nto whether the installation has been previously considered or proposed for closure\nor realignment by the Department.\xe2\x80\x9d Id. \xc2\xa7 2903(c)(3)(A). The Secretary\xe2\x80\x99s recommendations must be based on his previously established and issued \xe2\x80\x9cforcestructure plan\xe2\x80\x9d and a \xe2\x80\x9ccomprehensive inventory of military installations.\xe2\x80\x9d Id.\n\xc2\xa7 2912(a)(1). Congress also has enumerated four \xe2\x80\x9cmilitary value criteria,\xe2\x80\x9d id.\n\xc2\xa7 2913(b), and four \xe2\x80\x9cother criteria,\xe2\x80\x9d id. \xc2\xa7 2913(c), on which the Secretary must\nrely, and has provided that these, along with the plan and inventory, shall be the\n\xe2\x80\x9conly criteria\xe2\x80\x9d on which he relies, id. \xc2\xa7 2913(f). (In prior rounds, Congress left\nwith the Secretary discretion to establish the selection criteria. Id. \xc2\xa7 2903(b).)\nThe Commission must hold public hearings and prepare a report reviewing the\nSecretary\xe2\x80\x99s recommendations and setting out the Commission\xe2\x80\x99s own recommendations. Id. \xc2\xa7 2903(d). Just as it has restricted the Secretary in preparing the original\nlist, so also has Congress constrained the Commission\xe2\x80\x99s authority to alter the\nSecretary\xe2\x80\x99s list. The Commission may do so only if it \xe2\x80\x9cdetermines that the\nSecretary deviated substantially from the force-structure plan and final criteria.\xe2\x80\x9d\nId. \xc2\xa7 2903(d)(2)(B). And the Commission must make additional findings and\nfollow additional procedures if it proposes to close or realign an installation that\nthe Secretary has not recommended for closure or realignment or to increase the\nextent of a realignment. Id. \xc2\xa7\xc2\xa7 2903(d)(2)(C)\xe2\x80\x93(D), 2914(d)(3), (d)(5). The\nCommission must transmit its report and recommendations to the President no\nlater than September 8, 2005. Id. \xc2\xa7 2914(d).\nWithin two weeks of receiving the Commission\xe2\x80\x99s report, the President must\nissue his own report \xe2\x80\x9ccontaining [his] approval or disapproval of the Commission\xe2\x80\x99s recommendations.\xe2\x80\x9d Id. \xc2\xa7 2914(e)(1). The Act \xe2\x80\x9cdoes not at all limit the\nPresident\xe2\x80\x99s discretion in approving or disapproving the Commission\xe2\x80\x99s recommendations.\xe2\x80\x9d Dalton, 511 U.S. at 476; see also id. at 470. But it does require his\nreview to be \xe2\x80\x9call-or-nothing,\xe2\x80\x9d see DBCRA \xc2\xa7 2903(e); he \xe2\x80\x9cmust accept or reject the\nentire package offered by the Commission,\xe2\x80\x9d 511 U.S. at 470. If he disapproves,\nthe Commission may prepare a revised list, which it must send to the President by\nOctober 20, 2005. DBCRA \xc2\xa7 2914(e)(2). Presidential rejection of that list ends the\nprocess; no bases may be closed or realigned. Id. \xc2\xa7 2914(e)(3). If, however, the\nPresident approves either the original or revised recommendations, he sends the\napproved list, along with a certification of approval, to Congress. Id. \xc2\xa7 2903(e)(2),\n(e)(4).\nEach of the above steps is necessary for any closures or realignments to occur\nunder the Act. If Congress does not enact a joint resolution disapproving the\nCommission\xe2\x80\x99s recommendations within forty-five days after the transmittal from\nthe President, the Secretary of Defense must implement the entire list. Id. \xc2\xa7 2904.\nThe Act goes on to specify in great detail the procedures for implementing these\nclosures and realignments. Id. \xc2\xa7 2905.\n\n141\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\nB.\nThe modern National Guard descends from efforts that Congress began in the\nearly twentieth century both to revive the long-dormant \xe2\x80\x9cMilitia\xe2\x80\x9d described in the\nConstitution and, spurred by World War I, to make it an effective complement to\nthe regular Armed Forces. See generally Perpich v. Dep\xe2\x80\x99t of Defense, 496 U.S.\n334, 340\xe2\x80\x9346 (1990). Among its several provisions relating to the militia, the\nConstitution grants to Congress power to \xe2\x80\x9cprovide for organizing, arming, and\ndisciplining, the Militia, and for governing such Part of them as may be employed\nin the Service of the United States,\xe2\x80\x9d while \xe2\x80\x9creserving to the States respectively, the\nAppointment of the Officers, and the Authority of training the Militia according to\nthe discipline prescribed by Congress.\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 8, cl. 16. Acting\npursuant to this power, Congress in 1903 passed the Dick Act, ch. 196, 32 Stat.\n775, which provided among other things for an organized militia, known as the\nNational Guard of the several states, that would be organized in the same way as\nthe regular Army, trained by regular Army instructors, and equipped through\nfederal funds. Perpich, 496 U.S. at 342. For historical and constitutional reasons, it\nwas thought that this force could not be used outside of the United States. See\nWhether the Second Amendment Secures an Individual Right, 28 Op. O.L.C. 126,\n152\xe2\x80\x9353 (2004) (\xe2\x80\x9cSecond Amendment\xe2\x80\x9d).\nPartly to overcome this restriction, Congress in the National Defense Act of\n1916, ch. 134, 39 Stat. 166, further federalized the National Guard pursuant to its\npower, among others, to \xe2\x80\x9craise and support Armies.\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 8, cl. 12;\nsee Selective Draft Law Cases, 245 U.S. 366, 377 (1918). The National Defense\nAct \xe2\x80\x9cprovide[d] for greater federal control and federal funding of the Guard,\xe2\x80\x9d\n\xe2\x80\x9cauthorized the President to draft members of the Guard into federal service,\xe2\x80\x9d and\nprovided that the Army should include both the regular Army and the National\nGuard while in federal service. Perpich, 496 U.S. at 343\xe2\x80\x9344. The Court in the\nSelective Draft Law Cases and Cox v. Wood, 247 U.S. 3 (1918), upheld the draft\nprovisions of the National Defense Act, concluding, among other things, that\nCongress\xe2\x80\x99s power to raise and support armies was \xe2\x80\x9cnot qualified or restricted by\nthe provisions of the militia clause,\xe2\x80\x9d Cox, 247 U.S. at 6. The Court reaffirmed this\ninterpretation in Perpich, 496 U.S. at 349\xe2\x80\x9350.\nIn 1933, Congress gave the National Guard much of its current shape by creating two overlapping organizations whose members have dual enlistment: the\nNational Guard of the various states and the National Guard of the United States,\nthe latter forming a permanent reserve corps of the federal Armed Forces. See Act\nof June 15, 1933, ch. 87, 48 Stat. 153; Perpich, 496 U.S. at 345; see also 10\nU.S.C. \xc2\xa7 101(c) (2000) (distinguishing between these two entities); id. \xc2\xa7 10101\n(defining the \xe2\x80\x9creserve components of the armed forces\xe2\x80\x9d to include the Army and\nAir National Guard of the United States); see also id. \xc2\xa7\xc2\xa7 10105, 10111 (2000)\n(similar). Today, the federal government \xe2\x80\x9cprovides virtually all of the funding, the\nmateriel, and the leadership for the State Guard units,\xe2\x80\x9d although Congress\n\n142\n\n\x0cAuthority Under Base Closure Act to Close National Guard Installations\n\ncontinues, arguably for constitutional reasons, to allow a state to provide and\nmaintain at its own expense a defense force outside of this system. Perpich, 496\nU.S. at 351\xe2\x80\x9352; 32 U.S.C. \xc2\xa7 109(c) (2000). The National Guard of the United\nStates is thus at all times part of the Armed Forces of the United States. The\nrequirement of dual enlistment set up in 1933 means that a member of the National\nGuard simultaneously performs two distinct roles: Armed Forces reservist and\nstate militiaman. Under ordinary circumstances, National Guard units retain their\nstatus as state militia units, under the ultimate command of the governor of the\nstate in which the unit is located. See 10 U.S.C. \xc2\xa7 \xc2\xa7 10107, 10113 (2000). Under\ncertain conditions, however, the President can order those units into active federal\nservice, just as he can order any other component of the Armed Forces into active\nduty. See 10 U.S.C. \xc2\xa7 12301 (2000 & Supp. IV 2004). For as long as they remain\nin federal service, members of the National Guard are relieved of their status in the\nState Guard, see 32 U.S.C. \xc2\xa7 325(a) (2000 & Supp. IV 2004); Perpich, 496 U.S. at\n345\xe2\x80\x9346, and their units become exclusively components of the United States\nArmed Forces, see 10 U.S.C. \xc2\xa7\xc2\xa7 10106, 10112 (2000).\nII.\nA.\nYour letter to the Attorney General requests an answer to the question whether\nthe federal government, when following the procedures described in the Base\nClosure Act, has authority to recommend and carry out the closure or realignment\nof a National Guard installation without obtaining the consent of the governor of\nthe state in which the installation is located.\nAs an initial matter, the authority and procedures of the Base Closure Act undoubtedly do extend to National Guard installations, just as they do to any other\ntype of military installation under the jurisdiction of the Department of Defense.\nThe Act is comprehensive in its coverage. In broadly defining \xe2\x80\x9cmilitary installation,\xe2\x80\x9d DBCRA \xc2\xa7 2910(4) (quoted above), the Act makes no distinction between\ninstallations associated with the National Guard and those associated with any\nother component of the Armed Forces. Indeed, the Secretary\xe2\x80\x99s required inventory\nof military installations must include facilities in both the \xe2\x80\x9cactive and reserve\nforces,\xe2\x80\x9d id. \xc2\xa7 2912(a)(1)(B), which plainly includes the National Guard, see 10\nU.S.C. \xc2\xa7 10101. We understand that all of the National Guard installations\nrecommended by the Secretary for closure or realignment in the current round are\nlocated on land either owned or leased by the Department of Defense. Such\ninstallations are included within the definition of \xe2\x80\x9cmilitary installation\xe2\x80\x9d and are\nthus presumptively subject to closure or realignment under the Act. Similarly, the\nAct\xe2\x80\x99s definition of \xe2\x80\x9crealignment,\xe2\x80\x9d which \xe2\x80\x9cincludes any action which both reduces\nand relocates functions and civilian personnel positions,\xe2\x80\x9d DBCRA \xc2\xa7 2910(5),\nprovides no basis for distinguishing the National Guard. Nothing in that definition\n\n143\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\nsuggests that such actions are not equally covered whether they involve active or\nreserve forces, the regular military or the National Guard. It is therefore not\nsurprising that in previous rounds both the Secretary and the Commission made\nrecommendations to close or realign National Guard installations, or that the\nSecretary has made such recommendations in the current round.\nAs your letter recognizes, however, two statutes might be read to restrict the\nfederal government\xe2\x80\x99s ability to carry out such closures and realignments. These\nare 10 U.S.C. \xc2\xa7 18238 and 32 U.S.C. \xc2\xa7 104(c). Considering each provision in turn,\nwe conclude that neither affects the exercise of authority under the Base Closure\nAct.\nB.\nSection 18238 provides in full as follows:\nA unit of the Army National Guard of the United States or the Air\nNational Guard of the United States may not be relocated or withdrawn under this chapter without the consent of the governor of the\nState or, in the case of the District of Columbia, the commanding\ngeneral of the National Guard of the District of Columbia.\n(Emphasis added.) Section 18238 by its terms applies only to relocations or\nwithdrawals \xe2\x80\x9cunder this chapter.\xe2\x80\x9d The applicable chapter of title 10 is chapter\n1803, which comprises sections 18231 to 18239. The Base Closure Act, however,\nis not included in chapter 1803. Public Law 107-107, which authorizes the current\nround of closings and realignments, is a distinct legal authority, and the Act has\nbeen included as a note to 10 U.S.C. \xc2\xa7 2687, which is part of chapter 159. By its\nterms, therefore, section 18238 does not apply to the Base Closure Act because the\nAct is not part of \xe2\x80\x9cthis chapter\xe2\x80\x9d (i.e., chapter 1803) and action under the Act\ntherefore is not, and cannot be, action under chapter 1803. Thus, as the plain text\nof the provision makes clear, section 18238 has no bearing on the scope of\nauthority exercised under the Act.\nThis reading of the current text is confirmed by the statutory history of section\n18238. The provision was originally enacted as section 4(b) of the National\nDefense Facilities Act of 1950, ch. 945, 64 Stat. 829, 830. Section 4(b) applied\nonly to situations in which the location of a National Guard unit was changed\n\xe2\x80\x9cpursuant to any authority conferred by this Act.\xe2\x80\x9d Id. (emphasis added). 3 This\nlimiting clause was modified to \xe2\x80\x9cunder this chapter\xe2\x80\x9d in 1956 when the Facilities\n3\nSection 4(b) required merely that the relevant governor be \xe2\x80\x9cconsulted.\xe2\x80\x9d 64 Stat. at 830. A subsequent amendment added the phrase \xe2\x80\x9cand shall have consented.\xe2\x80\x9d Pub. L. No. 84-302, \xc2\xa7 1(c), 69 Stat.\n593, 593 (1955). In 1958, the wording was changed to the current \xe2\x80\x9cwithout the consent\xe2\x80\x9d version, and\nthe phrase \xe2\x80\x9cshall have been consulted\xe2\x80\x9d was omitted as surplusage. Pub. L. No. 85-861, \xc2\xa7 1(43), 72 Stat.\n1437, 1457 (1958); S. Rep. No. 85-2095, at 33 (1958), reprinted in 1958 U.S.C.C.A.N. 4615, 4634.\n\n144\n\n\x0cAuthority Under Base Closure Act to Close National Guard Installations\n\nAct was first codified in title 10 as part of the codification of military law into\ntitles 10 and 32. Pub. L. No. 84-1028, sec. 1, \xc2\xa7 2238, 70A Stat. 1, 120, 123\n(1956). 4 As was generally the case in the 1956 codification, no change in meaning\nwas intended. Id. sec. 49(a), 70A Stat. at 640 (\xe2\x80\x9cIn sections 1\xe2\x80\x9348 of this Act, it is\nthe legislative purpose to restate, without substantive change, the law replaced by\nthose sections\xe2\x80\x9d); see also Schacht v. United States, 398 U.S. 58, 62 n.3 (1970)\n(\xe2\x80\x9cAlthough the 1956 revision and codification were not in general intended to\nmake substantive changes, changes were made for the purpose of clarifying and\nupdating language.\xe2\x80\x9d); S. Rep. No. 84-2484, at 19 (1956), reprinted in 1956\nU.S.C.C.A.N. 4632, 4640 (\xe2\x80\x9cThe object of the new titles has been to restate\nexisting law, not to make new law. Consistently with the general plan of the\nUnited States Code, the pertinent provisions of law have been freely reworded and\nrearranged, subject to every precaution against disturbing existing rights, privileges, duties, or functions.\xe2\x80\x9d); Fairbank v. Schlesinger, 533 F.2d 586, 600 (D.C. Cir.\n1975) (observing that \xe2\x80\x9cthe codification of the Armed Forces statutes in 1956,\naccording to the provisions of the codification and the committee reports, did not\nintend to make any changes in the law\xe2\x80\x9d) (footnote omitted); id. at 595 & n.20\n(discussing the codification).\nBoth text and history thus make clear that the gubernatorial consent requirement contained in section 18238 applies only where the federal government is\nacting under the authority conferred by the Facilities Act, as now codified in\nchapter 1803 of title 10. The Commission is certainly not doing so here. It is\ninstead acting under the authority of the Base Closure Act\xe2\x80\x94its only source of\nauthority or even existence\xe2\x80\x94without any reliance on chapter 1803, just as the\nPresident and later the Secretary of Defense will act solely under the Act as the\nprocess continues. Moreover, the Commission is performing actions distinct from\nthose for which chapter 1803 provides authority. The primary purpose of that\nchapter is to provide for \xe2\x80\x9cthe acquisition\xe2\x80\x9d in various ways \xe2\x80\x9cof facilities necessary\nfor the proper development, training, operation, and maintenance of the reserve\ncomponents of the armed forces, including troop housing and messing facilities.\xe2\x80\x9d\n10 U.S.C. \xc2\xa7 18231 (2000); see also H.R. Rep. No. 81-2174, at 1 (1950) (stating\nsimilar purpose of original Facilities Act). To that end, chapter 1803 authorizes the\nSecretary of Defense to acquire or build facilities with federal money, as well as to\nmake contributions to the states. See 10 U.S.C. \xc2\xa7 18233 (2000 & Supp. IV 2004).\nThose contributions are to be used either to convert existing facilities for joint use\nby more than one reserve unit, id. \xc2\xa7 18233(a)(2), or to acquire or convert new\nfacilities \xe2\x80\x9cmade necessary by the conversion, redesignation, or reorganization of\nunits\xe2\x80\x9d of the National Guard of the United States by the Secretary of the relevant\nmilitary department, id. \xc2\xa7 18233(a)(3).\n4\n\nSection 4(b) then became 10 U.S.C. \xc2\xa7 2238, part of chapter 133. In 1994, Congress redesignated\nchapter 133 as chapter 1803, and sections 2231\xe2\x80\x932239 as sections 18231\xe2\x80\x9318239, with section 2238\nbecoming section 18238. Pub. L. No. 103-337, \xc2\xa7 1664(b), 108 Stat. 2663, 3010 (1994).\n\n145\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\nAll of this federally funded construction for the benefit of the National Guard\nnaturally could lead to the relocation of certain Guard units to new facilities. In\nthese circumstances, section 18238 requires gubernatorial consent before a unit is\n\xe2\x80\x9cwithdrawn\xe2\x80\x9d from its existing facility or \xe2\x80\x9crelocated\xe2\x80\x9d to a new one. The provision\nthus limits the ability of the Secretary of Defense to relocate National Guard units\nunilaterally as an incident of his powers under chapter 1803 to provide new\nfacilities for the reserve components of the Armed Forces. In contrast, when the\nfederal government uses the Base Closure Act to close or realign military installations\xe2\x80\x94and thereby to relocate National Guard units\xe2\x80\x94its power in no way derives\nfrom chapter 1803.\nThe same analysis applies even if the closure or realignment of a National\nGuard facility pursuant to the Base Closure Act should ultimately require the\nfederal government to acquire land or construct facilities. That Act provides\nindependent statutory authority for such development activity, by authorizing the\nSecretary of Defense to \xe2\x80\x9ctake such actions as may be necessary to close or realign\nany military installation, including the acquisition of such land, [or] the construction of such replacement facilities . . . as may be required to transfer functions\nfrom a military installation being closed or realigned to another military installation.\xe2\x80\x9d DBCRA \xc2\xa7 2905(a)(1)(A) (emphasis added). Here again, because the\nexercise of such authority would not depend on anything in chapter 1803, it would\nbe unconstrained by section 18238. 5\nC.\nSection 104(c) of title 32 provides in full as follows:\nTo secure a force the units of which when combined will form complete higher tactical units, the President may designate the units of\nthe National Guard, by branch of the Army or organization of the Air\nForce, to be maintained in each State and Territory, Puerto Rico, and\nthe District of Columbia. However, no change in the branch, organization, or allotment of a unit located entirely within a State may be\nmade without the approval of its governor.\n32 U.S.C. \xc2\xa7 104(c). Related to this provision, section 104(a) authorizes each state\nto \xe2\x80\x9cfix the location of the units and headquarters of its National Guard,\xe2\x80\x9d and\n5\nThere is an additional reason for not reading section 18238 to apply to the Base Closure Act. The\nFacilities Act grants authority to \xe2\x80\x9cthe Secretary of Defense.\xe2\x80\x9d See, e.g., 10 U.S.C. \xc2\xa7 18233(a). It follows\nthat section 18238\xe2\x80\x99s limitation on that authority applies only to actions taken by the Secretary. Thus,\nthe Facilities Act at least should not be read to apply to actions by the Commission or the President.\nAnd given that the final power to require closure or realignment under the Base Closure Act belongs to\nthe President alone, see Dalton, 511 U.S. at 469\xe2\x80\x9370, it would be anomalous to read section 18238 to\napply to\xe2\x80\x94and conflict with\xe2\x80\x94the Secretary\xe2\x80\x99s subsequent duty (discussed above) to implement all of the\nclosures and realignments on the list approved by the President.\n\n146\n\n\x0cAuthority Under Base Closure Act to Close National Guard Installations\n\nsection 104(b) provides that, except as otherwise specifically provided in title 32,\n\xe2\x80\x9cthe organization of\xe2\x80\x9d the Army National Guard and Air Force National Guard\n\xe2\x80\x9cand the composition of [their] units\xe2\x80\x9d shall be the same as those of their respective\nbranches of the federal Armed Forces.\nFor two reasons, we conclude that section 104(c) does not constrain actions\ntaken pursuant to the Base Closure Act. First, the text of that section strongly\nsuggests that the second sentence simply qualifies any exercise of authority under\nthe first, and thus that its gubernatorial consent requirement does not apply to the\nexercise of any separate authority\xe2\x80\x94such as the Base Closure Act\xe2\x80\x94even if that\nauthority may allow similar or overlapping actions. Second, reading the \xe2\x80\x9cHowever\xe2\x80\x9d sentence more broadly would so fundamentally undermine the Base Closure\nAct\xe2\x80\x99s detailed and comprehensive scheme that Congress could not have intended\nsuch a result. Indeed, the inconsistency between the integrated and exclusive\nprocedures of the Base Closure Act and the requirement imposed by the second\nsentence of section 104(c) is sufficiently serious that, if the Act and section 104(c)\ndid overlap, we would be compelled to read the former as impliedly suspending\noperation of the latter to the extent of the overlap. 6 Interpreting section 104(c) not\nto apply to the Act avoids that result and harmonizes the two statutes in a way\nfully consistent with the underlying purposes of each, as required by wellestablished rules of statutory construction.\nWe begin with the text. The second sentence of section 104(c) refers back to\nthe first sentence in two significant ways; these references suggest that the second\nsentence\xe2\x80\x99s admonition that \xe2\x80\x9cno change\xe2\x80\x9d may be made without gubernatorial\n6\n\nAt least some closures or realignments of National Guard installations under the Base Closure Act\nmay be said to involve a \xe2\x80\x9cchange in the branch, organization, or allotment of a unit located entirely\nwithin a State,\xe2\x80\x9d in which case, if section 104(c) did apply, gubernatorial consent would be required. We\nunderstand that phrase to reach only actions that would either alter the affiliation of a particular\nNational Guard \xe2\x80\x9cunit\xe2\x80\x9d with a particular segment of the regular Armed Forces or move a Guard \xe2\x80\x9cunit\xe2\x80\x9d\nout of a state where it had been entirely maintained. This interpretation follows from reading the two\nsentences of section 104(c) together. In the first sentence, \xe2\x80\x9cbranch\xe2\x80\x9d refers to the part of the Army with\nwhich the Guard unit is associated, and \xe2\x80\x9corganization\xe2\x80\x9d refers to the part of the Air Force. When used in\nthe very next sentence, those terms should be given the same meaning. Cf. Brown v. Gardner, 513 U.S.\n115, 118 (1994) (observing that the \xe2\x80\x9cpresumption that a given term is used to mean the same thing\nthroughout a statute [is] . . . surely at its most vigorous when a term is repeated within a given\nsentence\xe2\x80\x9d) (citation omitted). Similarly, \xe2\x80\x9callotment\xe2\x80\x9d is best understood, in light of the first sentence, to\nrefer to the President\xe2\x80\x99s \xe2\x80\x9cdesignat[ion] of units . . . to be maintained in each State.\xe2\x80\x9d Regulations issued\nby the National Guard Bureau adopt this interpretation: \xe2\x80\x9cAllotment to a state comprises all units\nallocated to and accepted by the Governor of that state for organization under appropriate authorization\ndocuments.\xe2\x80\x9d National Guard Bureau, Departments of the Army and the Air Force, Organization and\nFederal Recognition of Army National Guard Units, NGR 10-1, \xc2\xa7 2-2(a), at 5 (Nov. 22, 2002)\n(available at http://www.ngbpdc.ngb.army.mil/pubs/10/ngr10_1.pdf , last visited Aug. 12, 2014). Under\nthis reading, section 104(c) would not restrict the transfer of a National Guard unit\xe2\x80\x99s federally owned\nequipment or armaments, so long as the \xe2\x80\x9cunit\xe2\x80\x9d itself remained in place and its branch or organization\nwere not changed. Although the provision so construed is limited, we understand that certain closures\nor realignments proposed by the Secretary in the current round may involve relocating an entire\nNational Guard unit out of a given state, which could amount to a change in \xe2\x80\x9callotment.\xe2\x80\x9d\n\n147\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\napproval is best read simply to constrain actions conducted under the first\nsentence\xe2\x80\x99s authorization of certain presidential \xe2\x80\x9cdesignat[ions].\xe2\x80\x9d For one, the\nbeginning word, \xe2\x80\x9cHowever,\xe2\x80\x9d is one that necessarily refers to and limits what\ncomes before. For another, the words \xe2\x80\x9cbranch\xe2\x80\x9d and \xe2\x80\x9corganization\xe2\x80\x9d appear in both\nsentences of section 104(c). In the first sentence they describe the scope of the\nPresident\xe2\x80\x99s power; in the second, they describe the scope of the limitation on that\npower. This parallel construction indicates that the second sentence was intended\nto apply when the President takes action under the first sentence, not when he acts\npursuant to authority conferred on him by entirely separate and distinct authorizations.\nThis reading finds additional support in the statutory history. What is now\nsection 104(c) is the combined product of the National Defense Act of 1916 and\nthe amendments enacted in 1933. Section 60 of the National Defense Act allowed\nthe President to associate National Guard units with particular branches of the\nregular Army and to arrange those units geographically so that, when combined,\nthey would form complete tactical units. 39 Stat. at 197. As originally enacted, this\nsection granted no veto authority to the states. In 1933, however, Congress\nqualified this presidential power, such that section 60 read as follows:\n[T]he President may prescribe the particular unit or units, as to\nbranch or arm of service, to be maintained in each State, Territory, or\nthe District of Columbia in order to secure a force which, when\ncombined, shall form complete higher tactical units: Provided, That\nno change in allotment, branch, or arm of units or organizations\nwholly within a single State will be made without the approval of the\ngovernor of the State concerned.\nAct of June 15, 1933, \xc2\xa7 6, 48 Stat. at 156. The language of this amendment\ndemonstrates even more clearly that Congress did not intend the gubernatorial\nconsent provision to be a free-standing requirement for all actions taken by the\nfederal government with respect to the National Guard. Instead, the use of a\nproviso form\xe2\x80\x94linking the second clause to the preceding one both grammatically\n(by the colon followed by the word \xe2\x80\x9cProvided\xe2\x80\x9d) and syntactically (by the repetition of the words \xe2\x80\x9cbranch\xe2\x80\x9d and \xe2\x80\x9carm\xe2\x80\x9d)\xe2\x80\x94indicates that Congress intended merely\nto qualify the authority it had previously conferred on the President in the 1916\nAct.\nThis provision reached its current form in the 1956 codification, discussed\nabove in connection with section 18238. See Pub. L. No. 84-1028, sec. 2, \xc2\xa7 104(c),\n70A Stat. at 598. As with the changes made to section 18238, those made to\nsection 104(c) at that time were stylistic, and were not intended to alter the scope\nor meaning of the provision. See supra Part II.B.\nThus, given both the language of the current text and the history of that text, the\nsecond sentence of section 104(c) is best read simply as a proviso of the first, i.e.,\n\n148\n\n\x0cAuthority Under Base Closure Act to Close National Guard Installations\n\nas a statement \xe2\x80\x9crestricting the operative effect of statutory language to less than\nwhat its scope of operation would be otherwise.\xe2\x80\x9d 2A Norman J. Singer, Sutherland\non Statutes and Statutory Construction \xc2\xa7 47:08, at 235 (6th ed. 2000) (\xe2\x80\x9cSutherland\xe2\x80\x9d); see Ga. R.R. & Banking Co. v. Smith, 128 U.S. 174, 181 (1888) (\xe2\x80\x9cThe\ngeneral purpose of a proviso, as is well known, is to except the clause covered by\nit from the general provisions of a statute, or from some provisions of it, or to\nqualify the operation of the statute in some particular.\xe2\x80\x9d). This textual reading is\nconsistent with the general rule that a proviso should be construed narrowly, see\nComm\xe2\x80\x99r v. Clark, 489 U.S. 726, 739 (1989), and \xe2\x80\x9cto refer only to the things\ncovered by a preceding clause,\xe2\x80\x9d Alaska v. United States, 545 U.S. 75, 106 (2005).\nIt is true that courts do not always apply the general rule that a proviso is limited to the provision it qualifies. See 2A Sutherland \xc2\xa7 47:09, at 238\xe2\x80\x9339; Alaska,\n545 U.S. at 106\xe2\x80\x9307. But our analysis here rests only on the particular text at\nissue\xe2\x80\x94focusing on the obvious connections between the two sentences of section\n104(c), which the statutory history makes even more obvious, as well as on the\nabsence of any language indicating that the proviso was intended to reach beyond\nthe scope of the provision that it qualifies. In addition, the existence of a separate\ngubernatorial consent provision in section 18238 further suggests that section\n104(c)\xe2\x80\x99s proviso was not intended to be comprehensive. Our interpretation thus\ndoes not depend on invoking a presumption to clarify a text more naturally read in\na different way, but instead relies on what Congress intended when it enacted\nsection 104(c), as evidenced by the words that it used and the context in which it\nused them. See 2A Sutherland \xc2\xa7 47:09, at 239\xe2\x80\x9340. All of these indicators point\ntoward giving the proviso a narrow cast.\nThis textual reading of the scope of section 104(c)\xe2\x80\x99s proviso finds additional\nsupport in the rule that seemingly inconsistent statutes should be construed, where\ntheir text permits, to avoid a conflict. See Morton v. Mancari, 417 U.S. 535, 551\n(1974) (\xe2\x80\x9c[W]hen two statutes are capable of co-existence, it is the duty of the\ncourts, absent a clearly expressed congressional intention to the contrary, to regard\neach as effective.\xe2\x80\x9d); California ex rel. Sacramento Metro. Air Quality Mgmt. Dist.\nv. United States, 215 F.3d 1005, 1012 (9th Cir. 2000) (\xe2\x80\x9c[I]t is a well established\naxiom of statutory construction that, whenever possible, a court should interpret\ntwo seemingly inconsistent statutes to avoid a potential conflict.\xe2\x80\x9d). This rule of\nstatutory construction reinforces the need to construe the proviso narrowly, as a\nmore expansive interpretation would create serious conflicts between section\n104(c) and the Base Closure Act. The Act establishes comprehensive procedural\nand substantive criteria to be used for making base closure and realignment\ndecisions. It imposes strict deadlines on various Executive Branch actors and on\nCongress; establishes and limits the criteria on which the Secretary may rely in\npreparing his list of recommendations; establishes and limits the criteria on which\nthe Commission may rely in reviewing and revising the Secretary\xe2\x80\x99s list; and\nconstrains the President and Congress to all-or-nothing decisions about the entire\npackage of recommendations. These finely wrought procedures are designed to\n\n149\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\nbe\xe2\x80\x94and can work correctly only if they are\xe2\x80\x94wholly integrated as a single\npackage, exclusive of and unimpeded by external procedural requirements like a\ngubernatorial veto. Accordingly, we must read section 104(c)\xe2\x80\x99s proviso\xe2\x80\x94\nconsistent with its text and statutory history\xe2\x80\x94as not applying to the exercise of\nauthority under the Base Closure Act. 7 Cf. United States v. Fausto, 484 U.S. 439,\n453 (1988) (\xe2\x80\x9cThis classic judicial task of reconciling many laws enacted over time,\nand getting them to \xe2\x80\x98make sense\xe2\x80\x99 in combination, necessarily assumes that the\nimplications of a statute may be altered by the implications of a later statute.\xe2\x80\x9d).\nThe potential conflicts between a gubernatorial consent requirement and the\nBase Closure Act take several forms. First, where it applies and while it is in force,\nthe Act is expressly designated as the \xe2\x80\x9cexclusive authority\xe2\x80\x9d for the closure or\nrealignment of federal military installations in the United States. DBCRA\n\xc2\xa7 2909(a) (emphasis added). This exclusivity would be eviscerated if an entity not\ngiven any authority by the Act were nevertheless allowed to deselect particular\ninstallations from the list of proposed closures and realignments. The Act, in\ncontrast to the roles carefully selected for the Secretary, Commission, President,\nand Congress, designates no role whatsoever for state governors in the selection\nprocess. It would be a serious incursion on the Act\xe2\x80\x99s comprehensive procedural\nscheme to allow a different set of actors, unmentioned in the Act with regard to\nselection, and operating at an entirely different level of government, to play such a\ncrucial and potentially disruptive role in determining which installations could be\nclosed or realigned. Indeed, such a conclusion would allow state governors to\nexercise a power that the Act withholds from all of the federal actors on which it\nconfers responsibility: the ability to block the closure or realignment of an\nindividual installation for any reason. In addition, Congress knew how to confer a\n7\nIf we were to read the second sentence of section 104(c) as reaching beyond the section in which\nit appears, we would be compelled to read the Base Closure Act as impliedly repealing (or, more\naccurately given the time-limited nature of the Act, temporarily suspending) the proviso to the extent\nthat the proviso would interfere with and constrain the exercise of authority under the Act. See Posadas\nv. Nat\xe2\x80\x99l City Bank, 296 U.S. 497, 503 (1936) (describing the \xe2\x80\x9cwell-settled\xe2\x80\x9d rule that \xe2\x80\x9cwhere provisions\nin the two acts are in irreconcilable conflict, the later act to the extent of the conflict constitutes an\nimplied repeal of the earlier one\xe2\x80\x9d); 1A Norman J. Singer, Sutherland on Statutes and Statutory\nConstruction \xc2\xa7 23:9, at 458 (6th ed. 2002) (\xe2\x80\x9c[I]t is only natural that subsequent enactments could\ndeclare an intent to repeal preexisting laws without mention or reference to such laws. A repeal may\narise by necessary implication from the enactment of a subsequent act.\xe2\x80\x9d). The general presumption\nagainst implied repeals is overcome where there is a clear conflict between provisions enacted at\ndifferent times or a clear indication that, in enacting the later statute, Congress intended to supplant the\nearlier one. See Dep\xe2\x80\x99t of Transp. v. Pub. Citizen, 541 U.S. 752, 766\xe2\x80\x9367 (2004); Branch v. Smith, 538\nU.S. 254, 273 (2003); see also In re Glacier Bay, 944 F.2d 577, 583 (9th Cir. 1991) (holding that the\nTrans-Alaska Pipeline Authorization Act impliedly repealed the earlier Limitation Act, because the\nformer was \xe2\x80\x9ccomprehensive\xe2\x80\x9d and its \xe2\x80\x9cscheme simply cannot work if the Limitation Act is allowed to\noperate concurrently\xe2\x80\x9d). For the reasons given in the text below, such would plainly be the case here.\nCongress intended the Base Closure Act to be an integrated, comprehensive, and exclusive statutory\nscheme, and a limited suspension of the previously enacted proviso in section 104(c) (which was last\namended before the Base Closure Act was first enacted in 1990) would be \xe2\x80\x9cnecessary to make [the Act]\nwork.\xe2\x80\x9d Cf. Silver v. N.Y. Stock Exch., 373 U.S. 341, 357 (1963).\n\n150\n\n\x0cAuthority Under Base Closure Act to Close National Guard Installations\n\nrole on governors (and other non-federal entities) when it wanted them to have\none: The Act expressly gives to state and local officials (including governors in\nsome cases) the right to be consulted regarding and even veto certain federal\nactions, but these are actions implementing the list, after it has been approved. See\nDBCRA \xc2\xa7 2905(b)(2)(D) & (E), (3)(B) & (D), (5)(B) & (C)(i). In this context, the\nAct\xe2\x80\x99s contrasting silence about the role of state governors in the process of\nselecting bases for closure and realignment must be considered conclusive. See,\ne.g., Jama v. Immigration and Customs Enforcement, 543 U.S. 335, 341 (2005)\n(\xe2\x80\x9cWe do not lightly assume that Congress has omitted from its adopted text\nrequirements that it nonetheless intends to apply, and our reluctance is even\ngreater when Congress has shown elsewhere in the same statute that it knows how\nto make such a requirement manifest.\xe2\x80\x9d).\nSimilarly, applying section 104(c) to the Act would unravel the exclusivity of\nthe selection criteria that Congress has woven into the rules for both the Secretary\nand the Commission. Under section 2913(f), the \xe2\x80\x9cfinal selection criteria specified\nin [section 2913] shall be the only criteria to be used, along with the [Secretary\xe2\x80\x99s]\nforce-structure plan and infrastructure inventory\xe2\x80\x9d in determining the Secretary\xe2\x80\x99s\nrecommendations (emphasis added). Furthermore, the Secretary in applying these\ncriteria must \xe2\x80\x9cconsider all military installations inside the United States equally\nwithout regard to whether the installation has been previously considered or\nproposed for closure or realignment by the Department.\xe2\x80\x9d DBCRA \xc2\xa7 2903(c)(3)(A)\n(emphases added). Although this provision is not free from ambiguity (the\nconcluding \xe2\x80\x9cwithout regard\xe2\x80\x9d clause might be read as limiting the sense of \xe2\x80\x9cequally\xe2\x80\x9d rather than merely emphasizing one aspect of equal consideration), there is\nnevertheless tension between this mandate and the application of a unique\nimmunity for National Guard installations. The Commission faces analogous\nrestrictions, as it may depart from the Secretary\xe2\x80\x99s recommendations only if, among\nother things, it determines that he \xe2\x80\x9cdeviated substantially from the force-structure\nplan and final criteria.\xe2\x80\x9d Id. \xc2\xa7 2903(d)(2)(B); see also id. \xc2\xa7 2914(d) (imposing other\nconstraints). Thus, the base closure framework is unambiguously designed not to\nallow either the Secretary or the Commission to make decisions about which\ninstallations to close or realign on any additional criteria not described in the Act\nitself\xe2\x80\x94such as the wishes of state governors. A requirement that gubernatorial\nconsent be obtained before particular installations may be recommended for\nclosure or realignment cannot be squared with this crucial feature of the Act.\nSection 2914(b), which Congress added for the 2005 round, confirms this\ninterpretation by expressly allowing one narrow exception from the exclusivity of\nselection criteria, and giving even that exception a minimal scope. This section\nrequires the Secretary, in developing his recommendations, to \xe2\x80\x9cconsider any notice\nreceived from a local government in the vicinity of a military installation that the\ngovernment would approve of the closure or realignment of the installation.\xe2\x80\x9d Id.\n\xc2\xa7 2914(b)(2)(A). Yet at the end of the day, \xe2\x80\x9c[n]otwithstanding\xe2\x80\x9d this requirement,\nthe Secretary must base his recommendations only on \xe2\x80\x9cthe force-structure plan,\n\n151\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\ninfrastructure inventory, and final selection criteria.\xe2\x80\x9d Id. \xc2\xa7 2914(b)(2)(B). The Act\nmakes no comparable provision for state officials\xe2\x80\x94or, indeed, for any officials\nwho disapprove a possible closure or realignment. In light of this narrow accommodation of the view of local governments, the exclusion of any accommodation\nof the views of non-consenting governors is powerful evidence that Congress did\nnot expect\xe2\x80\x94and would not have wanted\xe2\x80\x94a gubernatorial veto provision to\nimpede any action proposed or carried out under the Base Closure Act. Cf. United\nDominion Indus., Inc. v. United States, 532 U.S. 822, 836 (2001) (\xe2\x80\x9cThe logic that\ninvests the omission with significance is familiar: the mention of some implies the\nexclusion of others not mentioned.\xe2\x80\x9d).\nThe conflict between an expansively interpreted version of section 104(c) and\nthe comprehensive scheme of the Base Closure Act becomes particularly acute in\nthe context of the President\xe2\x80\x99s role under the Act. As previously noted, the Act\nimposes no constraints on the President\xe2\x80\x99s discretion to approve or disapprove the\nCommission\xe2\x80\x99s recommendations. If state governors had a veto power over actions\nunder the Act, however, one of two absurd consequences would follow. On the\none hand, the President could take into account a gubernatorial veto. The President\xe2\x80\x99s power under the Act, however, is all-or-nothing; he is barred from editing\nout a particular installation to whose closure or realignment a governor objects.\nAccordingly, his only option for giving effect to the gubernatorial veto would be\nto reject the entire list. 8 In such case, the governor would receive a veto power not\nsimply over a particular National Guard installation\xe2\x80\x94which, as explained above,\nis extraordinary enough in the context of the Act\xe2\x80\x94but rather over the entire set of\nrecommended closures and realignments. Such a power not only would exceed the\nscope of section 104(c) itself, but also would be clearly irreconcilable with a\nnationwide, federal base closure process that, as described above, provides no role\nfor governors in selecting installations for closure or realignment. On the other\nhand, the President might disregard a gubernatorial objection (notwithstanding\nsection 104(c)) and approve the entire list. This action, however, would set up yet\nanother conflict: Section 2904(a) of the Act requires the Secretary, in implementing the final list, to \xe2\x80\x9cclose all military installations recommended for closure\xe2\x80\x9d and\n\xe2\x80\x9crealign all military installations recommended for realignment.\xe2\x80\x9d DBCRA\n\xc2\xa7 2904(a)(1), (2) (emphases added). In that scenario, the Secretary could not\ncomply with section 104(c) without violating section 2904(a).\nAlthough these specific conflicts are extremely significant, we also cannot\noverlook that reading section 104(c) to apply to actions under the Base Closure\nAct would thwart the broader goal of the Act: to replace an essentially ad hoc and\npolitically unworkable process, see Dalton, 511 U.S. at 479, 481\xe2\x80\x9382 (opinion of\n8\nAlthough the President could return the list to the Commission with objections based on the veto,\nthat would not solve the problem. If the Commission simply deleted the vetoed recommendations, it\nwould violate the exclusivity of selection criteria. If it did not, the President would face the original\nproblem again when the Commission returned the list.\n\n152\n\n\x0cAuthority Under Base Closure Act to Close National Guard Installations\n\nSouter, J.), with a comprehensive, unified, and rational one, \xe2\x80\x9ca fair process that\nwill result in the timely closure and realignment of military installations inside the\nUnited States,\xe2\x80\x9d DBCRA \xc2\xa7 2901(b). With respect to National Guard installations at\nleast, applying section 104(c) would revive the ills of the pre-Act process. Justice\nSouter\xe2\x80\x99s observations in Dalton (on behalf of four Justices) about the incompatibility of the Base Closure Act with judicial review would thus apply with equal\nforce to a gubernatorial veto:\nIf judicial review could eliminate one base from a package, the political resolution embodied in that package would be destroyed; if such\nreview could eliminate an entire package, or leave its validity in\ndoubt when a succeeding one had to be devised, the political resolution necessary to agree on the succeeding package would be rendered\nthe more difficult, if not impossible. The very reasons that led Congress by this enactment to bind its hands from untying a package,\nonce assembled, go far to persuade me that Congress did not mean\nthe courts to have any such power through judicial review.\n511 U.S. at 481\xe2\x80\x9382 (emphases added).\nFor these reasons, a gubernatorial consent requirement would do serious damage to\xe2\x80\x94and thus be incompatible with\xe2\x80\x94the carefully calibrated scheme set up by\nthe Base Closure Act. Under applicable rules of statutory construction, this\nincompatibility confirms our interpretation that section 104(c)\xe2\x80\x99s proviso qualifies\nonly the power that section 104(c) itself grants. 9 Here, because the power exercised in the base closure process by the Secretary, the Commission, and ultimately\nthe President, including the power to relocate National Guard units, is in no way\nderived from or dependent on section 104(c), it follows that the proviso does not\napply.1 0\n\n9\nThis interpretation does not render the proviso a nullity. The provision applies whenever the\nPresident acts pursuant to the authority granted him by the first sentence of section 104(c). Although\nthe President\xe2\x80\x99s decision to rearrange National Guard units under that authority (which he can do at any\ntime) is not constrained by the Base Closure Act\xe2\x80\x99s elaborate requirements, he is required in such\ncircumstance to secure gubernatorial permission before altering the branch, organization, or allotment\nof a unit. Nor does our interpretation produce a result at odds with the proviso\xe2\x80\x99s apparent purpose.\nWhen Congress in 1933 was in the process of adding to the predecessor of section 104(c) the\nrequirement of gubernatorial consent, the House Committee on Military Affairs stated the reasons for\nthe addition as follows: \xe2\x80\x9c[W]here a State has gone to considerable expense and trouble in organizing\nand housing a unit of a branch of the service,\xe2\x80\x9d the \xe2\x80\x9cState should not arbitrarily be compelled to accept a\nchange.\xe2\x80\x9d H.R. Rep. No. 73-141, at 6 (1933). The stated goal was to protect states against arbitrary\nchanges. Although one might find the closures and realignment wrought by the elaborate process of the\nBase Closure Act imperfect, one could hardly consider them arbitrary. Indeed, the entire point of the\nAct is to reduce arbitrariness.\n10\nNecessarily included within your request is the question whether the authority to close or realign\nNational Guard installations under the Base Closure Act, unrestricted by a requirement of state consent,\nwould violate the Constitution, or, at least, whether we should read sections 18238 and 104(c) broadly\n\n153\n\n\x0cOpinions of the Office of Legal Counsel in Volume 29\n\nIII.\nFor the foregoing reasons, we conclude that the federal government, acting\npursuant to the Base Closure Act, need not obtain permission from state governors\nbefore closing or realigning National Guard installations.\nC. KEVIN MARSHALL\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\nso as to avoid a possible constitutional violation. We see no basis for an affirmative answer. First, the\nmost plausible source of any constitutional infirmity would be the second Militia Clause. But that\nclause authorizes Congress to provide for \xe2\x80\x9corganizing, arming, and disciplining, the Militia,\xe2\x80\x9d U.S.\nConst. art. I, \xc2\xa7 8, cl. 16, which includes forming the militia into organized units, Perpich, 496 U.S. at\n350. Indeed, \xe2\x80\x9cthe Militia Clauses are\xe2\x80\x94as the constitutional text plainly indicates\xe2\x80\x94additional grants of\npower to Congress,\xe2\x80\x9d id. at 349; and concurrent state power in this area is clearly subordinate to that\nfederal power. See Second Amendment, 28 Op. O.L.C. at 162\xe2\x80\x9364. Second, the modern National Guard,\nintimately connected with the federal Armed Forces, rests to a large extent on Congress\xe2\x80\x99s distinct\npower to raise and support armies, which is not qualified by the Militia Clauses. See supra Part I.B.\nThird, the Act applies only to federal installations, and thus finds further support in Congress\xe2\x80\x99s power\n\xe2\x80\x9cto dispose of and make all needful Rules and Regulations respecting the . . . Property belonging to the\nUnited States.\xe2\x80\x9d U.S. Const. art. IV, \xc2\xa7 3, cl. 2. That power is not held at the mercy of the states. See, e.g.,\nKleppe v. New Mexico, 426 U.S. 529, 539, 543 (1976). Finally, as already noted, the original version of\nwhat is now section 104(c), in force from 1916 to 1933, contained no requirement of gubernatorial\nconsent; we have located no constitutional objections raised during that time. Rather, the proviso\napparently was added in 1933 solely for policy reasons. See H.R. Rep. No. 73-141, at 6 (quoted above\nin note 9).\n\n154\n\n\x0c'