George Washington Law Review
Note, 57 (1988): 328.
Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue.
THE MILITIA CLAUSES, THE NATIONAL GUARD, AND FEDERALISM: A CONSTITUTIONAL TUG OF WAR*
In June of 1987, Minnesota Governor Rudy Perpich filed suit in federal district court challenging the federal government's power to send members of the Minnesota National Guard to Honduras.[1] The district court rejected Perpich's claims.[2] In February of 1988, Massachusetts Governor Michael Dukakis filed a similar action that also failed.[3] The Court of Appeals for the First Circuit affirmed the Massachusetts district court in a one sentence opinion.[4] A panel on the Eighth Circuit reversed the ruling of the Minnesota district court,[5] but that decision was recently vacated and rehearing en banc was granted.[6]
This Note discusses the constitutional foundations of the modern National Guard system, the current statutory scheme that governs the Guard, and some of the problems presented by that scheme. This Note examines Supreme Court decisions regarding the scope of constitutional protections afforded state power in the federal system and suggests a judicial solution to the friction between the states and the federal government over the governance of the modern militia. Part I outlines the history and current status of this federal-state militia. Specifically, this Part Summarizes the militia's constitutional and statutory history, about which a dearth of legal scholarship exists.[7] It illustrates that there has been a steady erosion of the state role over the last two hundred years, resulting in a current imbalance in the distribution of power. Part II concludes [Page 329] that the current imbalance might not be in the national security interest, and that, contrary to the opinions of at least three federal courts, it might be unconstitutional. Part III examines the Constitution and pertinent Supreme Court decisions in which the Court has attempted to define the delicate balance between federal and state power. The discussion centers mainly on questions of federal jurisdiction and interpretation of the constitutional language giving Congress the power to regulate interstate commerce. It discusses the Perpich and Dukakis decisions and examines the difficulties posed by states' assertions of sovereignty in light of increasing federal power. Finally, this Note concludes that state challenges to federal power over the National Guard are well- principled and could provide the Supreme Court with an opportunity to make a refreshingly clear statement on the meaning and constitutional dimensions of state sovereignty in our federal system.
I. The Militia
Every state in the union has a militia.[8] Laypersons know the militia as the 'National Guard,' an inaccurate and oversimplified rubric for an institution that has several different personalities depending on the laws under which it is operating.[9]
Theoretically, a state's militia is an independent military force. It is a part of the executive department of the state and may be used for police augmentation, civil disturbance control, natural disaster relief, or any other lawful purpose pertaining to security of the state and its citizens.[10] The governor is the commander-in-chief of the militia and is generally responsible for its operations.[11]
The United States also has a militia.[12] With the exception of exclusively federal reserve units,[13] the federal militia is composed of the militia of the states when properly called into active federal ser-[Page 330]vice in times of war or national emergency.[14] To understand how this system has evolved requires an understanding of its constitutional, legislative, and military history.
The militia[15] is an institution older than our Constitution.[16] Prior to 1787, it was a product of English common law and colonial and military custom.[17] Since 1787, and increasingly in modern times, the militia has been a product of federal and state statutes enacted pursuant to a division of powers and responsibilities embodied in Article I of the Constitution.[18] Although the modern militia system is a product of the Constitution and statutes, the federal courts have rarely addressed the broad range of constitutional issues which it presents.[19]
A. The History of the Militia Clauses
The constitutional basis for the modern militia system is found in Article I, section 8, which states:
The Congress shall have Power . . .;
. . .
[(clause 15)] To provide for calling forth the Militia to execute the Laws of the Union, suppress insurrections and repel Invasions;
[(clause 16)] To 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 Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
. . .
To make all Laws which shall be necessary and proper for carrying [Page 331] into Execution the foregoing Powers.[20]
Serious negotiations over the Militia Clauses began at the Constitutional Convention on August 8, 1787, two months after Alexander Hamilton unsuccessfully urged complete federal control over the militia.[21] Opponents searched for a compromise, reasoning that ' [i]f [the states would] not give up the power over the whole, they probably [would] over a part as a select militia.'[22]
The first compromise reserved from federal regulation the appointment of officers. The Convention members agreed that officering would be the exclusive province of the states.[23] This compromise was motivated by the states' fear of federal power in the union. In assuring that the officering provision would preserve state power, Hamilton wrote:
What reasonable cause of apprehension can be inferred from a power of the Union to prescribe regulations for the militia and to command its services when necessary, while the particular states are to have the sole and exclusive appointment of officers? If it were possible seriously to indulge a jealousy of the militia upon any conceivable establishment under the federal government, the circumstance of the officers being in the appointment of the states ought at once extinguish it. There can be no doubt that this circumstance will always secure to them a preponderating influence over the militia.[24]
It appears, however, that reserving to the states the appointment of officers was not alone considered a sufficient safeguard against federal domination. When the subject of militia training came before the Convention, the draft language reserved authority over training to the states.[25] This language ultimately prevailed, but not without some opposition. Opponents moved to strike the provision, arguing that because training authority was not specifically vested in the federal government by means of the 'organize, arm, and discipline' language, the provision was unnecessary.[26] The motions to strike the language failed as the majority decided to be unequivocal: the federal government would not have all power over militia mat-[Page 332]ters.[27] The Article I language remains unchanged and is the constitutional basis for both federal and state power over the militia.[28]
B. Federal Regulation of the MilitiaThe Organized Militia System of the United States is governed, in part, by federal statute.[29] Since the beginning of the Union the system has steadily evolved from one of almost no federal regulation to a modern system of virtually complete federal regulation and control.[30]
Prior to the Revolutionary War, each colony had an organized militia whose main purpose was to maintain the public peace and protect colonists from Indian raids and other external security threats.[31] The Revolutionary War saw the defection en masse of these militia, popularly known as minutemen, to the Continental Army.[32] With independence won, however, the Continental Army was disbanded; the only military forces maintained thereafter were the independent militia of the several states and a few federal guards maintained for essentially housekeeping details at Fort Duquesne and West Point.[33]
The Act of September 29, 1789 (Act of 1789),[34] enacted by the First Congress, recognized the need for 'the establishment for the troops in the service of the United States.'[35] This legislation was the statutory birth of the Regular Army, a completely federal, standing army primarily designed to respond to serious military weaknesses of the Confederation.[36] By implication from the language of Article I, however, the states remained free to maintain their own militia.[37] [Page 333]
Not until the Federal Militia Act of 1792[38] did Congress attempt to codify a national policy regarding the militia. In effect, this Act did little more than establish a continuing military census to provide a role of ready reserves that could be called into federal service should the need arise.[39] This Act, for the first time, created a uniform age of military obligation[40] and presumed that each state would establish company-sized districts.[41] District Captains were to be responsible for enrolling all obligated males and were to provide for the annual muster.[42] This system resulted primarily in implementing a massive military manpower bookkeeping system rather than establishing a true, in-place and nationwide reserve force.[43]
As to the relationship between the militia and the Regular Army, the Act of 1789 authorized the President to draft the militia into federal service.[44] In practice this provision proved unnecessary because great numbers of state units volunteered to enlist in the federal service when needed.[45] Militiamen simply came forward and were placed in the federal ranks.[46] The bureaucratic strictures of the modern recruiting and personnel management systems were nonexistent. Units ranging from single companies to entire regiments were employed in the federal service for combat in various conflicts, from the War of 1812 through the Spanish-American War in 1898. This system remained relatively undisturbed until 1903.[47]
In 1903, Congress enacted the Dick Act,[48] which for the first time codified certain aspects of the system that had developed in rather haphazard fashion under state law.[49] Viewed by many as the birth certificate to the modern system, the Dick Act represented the first real exercise of Congress's long-dormant power to organize the militia.[50] Moreover, this Act signified the beginning of the demise of the old, essentially state- controlled, system.[51]
The Dick Act labeled the state militia 'National Guards,' the first [Page 334] statutory usage of that term.[52] This Act also authorized federal funds for equipment and training[53] and provided the states with training by federal regulars.[54] Further, it required the states to drill their units a specified number of days per year, to open their account and property books to federal auditors, to subject training and encampments to federal inspection, and to obtain prior approval for the expenditure of federal grants-in-aid.[55]
The Dick Act was followed by the Militia Act of 1908,[56] which provided that the National Guard be available for federal use in the United States as well as outside its borders.[57] In 1912, however, the Judge Advocate General of the U.S. Army held that, given the limiting language of Article I, section 8, clause 15,[58] there was no constitutional authority for overseas use of the militia.[59] In the same year, the United States Attorney General concurred in this opinion.[60]
The significance of these events was undercut, however, by Congress's next major attempt to take control over the militia. In 1916, Congress enacted the National Defense Act (NDA),[61] a legislative response to the gathering storm of the First World War. Through the NDA, Congress created a vehicle to circumvent the Attorney General's opinion that deemed overseas use of the National Guard unconstitutional.[62] This Act gave the President the authority to draft any member of the militia into the federal service.[63] Accordingly, entire units were 'drafted.'[64]
The NDA further overhauled the system by authorizing additional appropriations for state militia units.[65] Its enactment, however, was attended by much acrimony from both the states and the Regular Army. While the states would be burdened anew with increased federal requirements and control, the Regular Army would be saddled with administering the system.[66] The result was a dramatic [Page 335] increase in federal control over the militia. The most dramatic aspect of this increased control was the President's new power to draft state Guard members as federal reserve troops, thereby relieving Congress of the constraints imposed by clause 15.[67] In addition, the NDA authorized the President, through the Secretary of War, to promulgate rules (1) describing the number and kind of units each state would be required to maintain,[68] and (2) establishing standards for enlistment.[69] The NDA replaced the state codes with the National Military Code,[70] and, perhaps most importantly, the NDA required units receiving federal monies to acquire federal approval before any officer could be commissioned.[71]
This last provision effectively wrested from the states control over officer-appointment standards,[72] and has yet to be challenged on constitutional grounds, perhaps because of its conditional spending character.[73] The NDA further cemented federal control over state [Page 336] militia by providing that the states could not maintain any troops other than those directed by the President.[74]
In 1918, the provision allowing the federal government to draft National Guardsmen was challenged on constitutional grounds and was upheld in the Selective Draft Law Cases.[75] In these cases, consolidated for appeal, several members of state National Guards challenged the draft law asserting that insofar as the NDA permitted them to be drafted for service overseas, it violated clause 15, which confers on Congress the right to call 'forth the Militia to execute the Laws of the Union, supress insurrections and repeal Invasions.'[76]
The Court began its opinion by noting that '[t]he highest duty of the citizen is to bear arms at the call of the nation.'[77] The Court then proceeded to discuss the history of Congress's use of the draft to carry out its national defense responsibilities under the Army Clause.[78] Reasoning that the Militia Clauses were not to be read as a limitation on Congress's power when that power needs to be most expansive, the Court held that the power of Congress 'was expressly granted by the Constitution . . . in the power to declare war, which means a power to carry on the war successfully, i.e., with the means necessary.'[79]
Interpreting clauses 15 and 16 in this way, the Court approved of wartime drafting of citizens who were also members of the militia, even though such a scheme came dangerously close to allowing Congress to use the militia abroad in the face of clause 15. Thus, in order to allow Congress to defend the nation in war, the Court gave birth to the legal fiction of Guards qua Reserves. In later years this scheme would be incorporated into federal statutory provisions.[80] [Page 337] The dual status of the National Guard was imminent.[81]
More of the same heightened standards, combined with increased federal appropriations, characterized the Army Reorganization Act of 1920.[82] Under this Act the Militia Bureau (the Bureau), the federal agency primarily responsible for executing militia policy, gained significantly more control over the state guards.[83] The Bureau was empowered to control the geographic location of units, to require annual physical examinations of all personnel, and to dictate virtually every important operational detail involved in running the units¾from the specifications of horsehoe sizes to the tactical and strategic doctrines of units.[84] Further, it broadened the President's power, permitting him to activate guardsmen in an 'emergency' declared by Congress.[85]
The Act of June 15, 1933[86] created the National Guard of the United States composed of the portions of the state Guards in the service of the United States. This enactment was the inception of the federal militia as a statutory entity. As a practical matter, during peacetime the National Guard was a fiction.[87] During war, this organization came to life and became part of the modern army of the United States.[88] This Act required all guardsmen to take a dual oath to both the federal and relevant state governments,[89] and made, in essence, every state guardsman a federal reservist as well.
C. The Modern Militia
The Armed Forces Reserve Act of 1952[90] codified the modern system. This Act provided that guardsmen could be called out by the President for fifteen days out of each year for any reason, subject to the consent of the Governor.[91] This provision was the first incursion of the federal government into peacetime mustering of the [Page 338] state militia. Presumably, the gubernatorial veto provision ensured consistency with the state powers described in the Militia Clauses. Logically, there were only two circumstances under which the President was authorized to call forth the militia. The militia could be used either (1) for 'core militia' functions, that is, in a manner contemplated by the language or structure of clause 15, such as repelling invasions or during times of war or national emergency, or (2) when a Governor expressly consents, thereby protecting the institutional interests of the state.
A literal approach to the language of clauses 15 and 16 would have prevented the national government from employing the militia in those core functions¾war and national emergency¾for which it was intended by the Farmers. On the other hand, completely overlooking the dual power structure that the language subsumes would have vitiated state power over the militia. This state of the law could have remained the solution palatable to all parties, but it was not to last.
After the end of American involvement in Vietnam, President Nixon decided to end the selective draft.[92] Through a series of resolutions and appropriations, Congress began a program of downsizing the standing military force.[93] An increased emphasis was placed on the reserve components to provide for first line reserve capabilities.[94] This approach was the genesis of the all-volunteer army and the 'Total Force' concept.[95] The Total Force is composed of the Regular Army,[96] the United States Army Reserve,[97] and the National Guard of the United States.[98] This last entity is the umbrella organization of all state militia or National Guards when on active federal service.
The all-volunteer Army of the early 1970s greatly reduced the manpower of the Regular Army portion of the Total Force.[99] The dynamics of the United States' security interests and military requirements, however, simultaneously expanded and changed over the last two decades. Increases in terrorism, the escalation of civil and guerrilla wars in nations important to U.S. security interests, and the increasing political popularity of nuclear arms control and [Page 339] reduction have placed expanding and varying demands on our readily deployable, conventional military forces.[100]
These demands, in light of the increasing political and budgetary constraints of the 1980s, have often been met by an increased emphasis on the less costly reserve components of the Total Force.[101] In particular, the resources of the state National Guards¾which possess the lion's share of the reserve component combat arms[102]¾have been tapped. The state Guards have steadily become a major building block of Pentagon strategies, not only for protracted conventional and nuclear conflict but also for nonconventional, low- intensity conflicts as might occur in Central America or the Middle East.[103] Today, eighteen of the twenty-four Army divisions available in the event of war are provided in whole or in part by the state Guards.[104] Similarly, seventy-three percent of the nation's air defense interceptor forces, thirty-four percent of its tactical airlift capability, and twenty-five percent of its tactical fighters are Air National Guard assets.[105] Today's National Guards are no longer a reserve of units, personnel, and equipment that, after a period of appropriate training, could provide stand-by augmentation to active duty forces. They have become first line defensive and offensive components of the Total Force.[106]
This fundamental change in our national defense strategy has not been solely quantitative. As part of its program, Congress increased readiness standards, expanded the qualitative requirements for troops and units that each state is required to maintain, and augmented the missions that these units would be required to perform.[107] Unable to fund these requirements, and in some cases unwilling to administer these programs themselves, many of the states have ceded virtually all of their authority to federal control, a wholesale retreat from the state-controlled character of the militia that had once prevailed.[108] [Page 340]
II. Federal-State Tensions¾Central America and the Montgomery Amendment
The natural result of this state of affairs is that, as the nation's military needs have become less conventional, the military's role in non-war foreign policy execution has enlarged. Relatedly, as the state militia have become an increasingly larger component of the defense structure, they have become involved in federal policy execution on both a national and international scope.[109] The most recent federal legislation, embodied in the Montgomery Amendment of 1986,[110] removes the requirement of gubernatorial consent for federal training of the National Guard and exemplifies the friction that has been inescapably produced by this state of affairs. With one set of policy goals and a particular philosophy on the use of military power, the federal political branches have control over state military institutions whose governments might disagree with either the federal policy goals or the philosophy. The debate surrounding this legislation and the litigation challenging it highlight some of the difficulties inherent to this scheme.
A. Montgomery Amendment and State Interests
In the early 1980s, the Reagan Administration federalized many Guard units for training.[111] This event seems unremarkable on its face. This 'federalization' is, with the consent of the Governor, the normal procedure for most Guard units' two week annual training. Some of these training missions were conducted, however, in friendly nations that bordered either unfriendly nations or nations involved in civil or guerilla wars¾wars in which the Administration had an interest in seeing a particular side prevail.[112]
More than a few observers criticized these missions as imprudent use of military force. Most notable among the objectionable missions were those scheduled to take place in Honduras.[113] Honduras is a primary staging area for the so-called 'Contras,' a military force actively seeking the political and military demise of the Nicaraguan Sandinista government. Disagreeing with the Administration's policy, several state governors refused to permit their troops to be sent on this mission.[114] Other governors, while not refusing to send [Page 341] their troops, expressed their reservations about the policy.[115] In direct response to this situation, Congress enacted the Montgomery Amendment,[116] which effectively removed the provision in the federal law that required gubernatorial approval for federalization for any purpose other than war or national emergency.[117] The law did not literally remove the provision, but stated that a governor could not withhold consent based upon 'any objection to the location, purpose, type, or schedule of such training.'[118]
To the casual observer, and to many not so casual federal policymakers, this system seems to be an appropriate response to the military and political realities of twentieth-century America. The nation needs a strong defense, but few would argue that maintaining a large standing army of full scale war capability is politically or economically desirable. Each state has a reserve military force of its own growing out of the historical need for police augmentation in internal security and natural disaster situations. Because these assets are already in place and because the states' day-to-day needs for these assets are arguably less immediate and compelling when compared to the 'pioneer' days of Indian wars and factional rebellions, why not integrate these resources into the national defense? Short of abolishing the Guards by constitutional amendment and creating one national federal reserve, which seems politically unrealistic, federalizing these state institutions seems the efficient and logical compromise. It strikes the golden mean between two extremes¾of a nation relying on the neutrality and stability of its neighbors for security, and a nation whose growth and prosperity is handicapped by the crushing weight of an enormous military machine.
As with any compromise, however, some interests are ill-served. This result is inevitable because compromise is inherent to decisionmaking. Policymakers must weigh the possible harms of a compromise against the benefits. Yet, the Constitution requires that some [Page 342] harms be given greater weight than others. Although the harms incurred by injuries to individual liberties protected by the Bill of Rights are those most frequently requiring special consideration, the Constitution also requires that harms to the institutions of government be given special weight.[119] These harms necessarily include those to the interests of the three coordinate branches of the federal government. But they also include harms to the institutional interests of the states as principal providers of those protections, services, and policies for which all governments are constituted.[120]
A significant number of state interests are impinged by the current National Guard system. One category of harm to state interests is derived from the broad postulate of state sovereignty, and includes the notion that states should not be coercively involved, and should not be allowed to involve themselves, in U.S. foreign policy. This category of harm is judicially recognized and has been the subject of the Dukakis and Perpich litigation.[121] A second category of harm, perhaps more subtle, stems from the contravention of basic efficiency, delegation, and decentralization values of managerial and military science.[122] The first category, in a very real way, might militate for judicial correction. The second category of harm, although perhaps more appropriately considered through legislative or executive process, nonetheless provides additional material to be considered by the judiciary. Judges might determine that those structural-managerial interests are what really underlie a constitutional provision. Given such a finding, few judges would ignore a holding that serves those interests. In any event, federal legislators should reconsider these harms in their oversight of the federal management of the Guards. Such consideration might lead to legislative reforms that would make the Guards more effective and efficient while also avoiding the constitutional problems presented by the current scheme.
The trend toward plenary federal control arguably offends Article I, section 8, clause 15, specifically with respect to training and officering. The Supreme Court has held that with respect to personnel status, political control, and for the purposes of jurisdiction, the [Page 343] National Guard is the modern militia reserved to the states.[123] Although in certain circumstances the Court has held that the Guards are federal in nature, these decisions have generally supported a dual power structure and have limited the federal character to some very narrow circumstances.[124]
The current system is characterized by federal control over almost all facets of the Guards. There is almost no area of operation in which the Guards are not constrained by federal control.[125] The Officering Clause has been completely vitiated by the 'federal recognition' system: no unit receiving federal funds or support may place an officer in its table of organization unless that officer has been federally recognized.[126] Federal recognition, which means the officer must meet standards identical to federal active duty officers, must also be 'renewed' upon promotion in rank or position.[127] This scheme supplants the state's role in choosing and installing state officers, for no state's Guard can accomplish federally mandated missions without making use of federal funding and support.
State control in administering matters such as training, personnel, logistics, doctrine, and military justice has been eliminated by a system of federal conditional spending.[128] This purse string has been used to put the states in a 'catch-22' situation¾retain autonomy and lose funding or accept funding and submit to federal control. In addition, legislation prohibiting the states from keeping 'troops' except as directed by the President has been read to apply to the militia.[129] Although the term 'Troops' in the Constitution was probably intended to apply to standing armies,[130] this seemingly unfounded application of the prohibition to the militia means that even if the states could afford to maintain their militia in accordance with federal standards without federal assistance, they would be forbidden to do so. Moreover, today the state National Guards are organized into federal divisional structures requiring the maintenance [Page 344] of state units that have no purpose other than to support a national defense strategy.[131] For example, what possible use could a state have for a Military Intelligence Battalion whose primary mission is to collect and analyze tactical and strategic battle information?
This state of the law ignores important interests of the states. Specifically, it prevents states from independently, and some would say effectively, administering a state institution to meet state requirements. In addition, the states are now forced to participate in and contribute to a foreign policy with which they may vehemently disagree, and the development of which the Constitution denies them any meaningful political mechanism to change. In a more general sense, however, the current law prevents the states from legitimately acting as states. It intrudes upon that zone of governmental activity presumably reserved to the states in our federal system. Such harm to the states becomes crucial when analyzing the constitutionality of the current statutory scheme.
B. The Continuing Vitality of Policy Choices of the Farmers
The overarching problem is how far the National Guard system has strayed from what the Framers originally intended for the militia. This observation is not to say that all law should be bound by the Framers' intentions.[132] The concern here is one of policy. The wisdom of the policy underlying the state-federal military institution originally envisioned by the Framers is as apparent today as it was two hundred years ago.
The Framers intended that the militia would be governed by a dual system of federal-state control during peacetime with the bulk of the power in the hands of the state. The Federalist papers and the records of the Federal Convention indicate that most Framers were wary of the dangers a large standing army would pose to the rights of individuals and the rights of the states as sovereigns.[133] They might also have been concerned about the foreign relations problems that could attend a militarily adventurous executive.
In response to those concerns, the Framers allowed the states to retain almost complete control over the militia during peacetime. This control included areas of military operations such as mustering, officering, training, and maintaining logistical support for training operations.[134] Indeed, it is plausible that the Framers never intended that the state militia provide the front line defense of the [Page 345] Republic, and they most certainly did not consider that the militia would ever be sent abroad.[135]
Under the system contemplated by the Framers, Congress would regulate the militia during peacetime only to the extent necessary to provide a smooth transition into federal service if needed as a reserve in time of war. This regulation would include devising plans for mobilization; coordination for rapid arming and equipping for combat operations; a unified system of standards for equipment, munitions, and discipline; and a tactical doctrine that the states could use in their own planning and training.[136] No evidence suggests that the Framers envisioned federal control or administration over the day-to-day running of the militia. Additionally, the Framers possibly intended that the militia not be subject to extensive federal regulation prior to a declared war or other national emergency, reasoning that the resulting delay in the federal military build-up would serve as a deterrent to overly swift entrance into wars of aggression or imperialism.[137] The essentially defensive orientation of the militia would still provide adequate defense at the nation's borders.
The Framers realized that under some limited circumstances it would be necessary to have state military forces under federal command. Thus, once the militia or a portion thereof was properly called into active federal service, Congress would have plenary authority over the militia.[138] By Article I mandate, the militia is properly called into active federal service only to 'execute the Laws of the Union, suppress insurrections, and repel Invasions.' Read in the broadest sense, this language covers only those emergency situations posing imminent danger to life or property, whether from [Page 346] some foreign power or from some internal force uncontrolled or uncontrollable by the states. These core militia functions remain the only legitimate use of state military power by the federal government.
The system envisioned by the Framers reflects a balancing of equally important interests. On the one hand, the Framers wished to ensure the national security through a strong military system. Undeniably, there exists a perpetual need for a strong national defense system for which the militia system should serve as a dependable backup, and some measure of federal control is necessary to ensure uniformity and readiness. On the other hand, there is a need and a justification from an efficiency standpoint to retain military forces at the state level. The Framers believed in the efficacy of military units tied to the local community.[139] Military forces controlled by local communities promote esprit de corps and political stability in support for the military and allow for the benefits of the English Regimental system in which grandfathers, fathers, and sons served in the same units.[140] In addition, a canon of military leadership, which has recently become fashionable in business schools, is the 'power-down' theory that mandates that as much responsibility and command discretion as possible should be delegated to the lower levels in order to facilitate initiative and self-sufficiency.[141] Finally, there are many occasions when the states need a local force, controlled by the state with well-exercised state chains-of-command, to aid police in carrying out the police power function¾a function deemed primarily within the province of the states.[142]
From both a constitutional and a policy perspective, a problem exists. To what degree the current legal doctrines governing federal-state relations can provide a solution is the question that must be answered.
III. Current Federalism Doctrines and the Modern Militia
A recurring theme in constitutional decisionmaking is the balancing of interests between the states as institutions and the federal government as the supreme power in the Union. Thus far the states have generally found little protection in the courts. Such protection should be expanded because the increasing domination of the [Page 347] federal government offends the federal structure embodied in the Constitution and in many cases results in unresponsive and inefficient government action.
A. Problems in Constitutional Line-Drawing: Federal Jurisdiction and the Commerce Clause
Questions regarding the proper division of power between the federal and state courts provide perhaps the greatest challenge for the lawyer, judge, and legal scholar. Theories of jurisdiction are, indeed, the wellspring from which flow many of the Supreme Court's seminal cases on power in the constitutional system.[143] The genesis of many of the concepts underlying state sovereignty are also bound up in the jurisdictional cases.
Marbury v. Madison[144] provided the Supreme Court's initial view of the federal judicial power in relation to the acts of coordinate braches, namely, the power to review congressional or executive acts and rule on their constitutionality.[145] But the jurisdictional cases relevant to the scope of federal power over the National Guard are those dealing with the power of the federal judiciary over the states. State sovereign immunity,[146] abstention,[147] exhaustion in federal habeas corpus proceedings,[148] and the Erie doctrine[149] are [Page 348] all examples of judicial doctrines that seek to draw a line between the powers of the federal courts and state sovereigns. These lines have been drawn less clearly than those drawn between the coordinate branches, reflecting the more complex interests at stake.[150]
These cases deal with complex procedural and jurisdictional matters, but through all of them runs a common theme: respect is due the power of a state to control its own affairs and citizens, unless important and overriding federal interests are identified. This respect is necessary to allow the states to develop policy independently and effectively and to provide the 'nuts and bolts' of what the citizenry expects of 'government.'[151] In addition, even when important federal interests are at stake, the Court has been willing to engage in a balancing of interests that includes consideration of such factors as equity, comity, and federalism.[152] Although this theme has sometimes been boldly pronounced and at their times only alluded to in dicta, it nevertheless pervades the Court's approach to federal-state judicial relations.[153]
This seemingly amorphous doctrine finds its roots in the records of the Convention[154] and in the Federalist papers.[155] The weaknesses identified in numerous areas of government under the Confederation drove the formation of the new Union.[156] Nonetheless, the disadvantages of a large central government¾to the rights of both individual and states¾still weighed heavily in the minds of many of the Framers.[157] Today such fears might not be justified. The political power of the states is great and indeed the federal courts, not [Page 349] the state governments, are viewed as the vanguard protectors of individual rights.[158]
So what justifies restraint of federal power in the face of state rights? Perhaps the government closest to the people, most easy to reach, and most accessible to the governed, should in some cases be favored over the one farthest away, least accountable, and least accessible. The American tradition of governing by town meeting and petitioning city hall might not be a political reality at the state level today, but the strictures of required fiscal responsibility,[159] the policing responsibility, and the general mandate that state government provide services for daily life while not overtaxing the populace's resources are ever increasing realities. These realities still justify respect for the state as a sovereign and maintenance of constitutionally protected state rights.
These same arguments and policies find application in another line of cases perhaps more applicable to the militia question. To a lesser extent than in the jurisdictional cases, the domestic power of Congress vis-a-vis the states has been the subject of much judicial inquiry.[160] Although some litigation and legislation involving the taxing and spending powers have generated theories of governmental power,[161] through the Commerce Clause the Court has found a forum for examining state sovereignty as a limitation on congressional power.[162] [Page 350]
The doctrines limiting the federal legislative power in favor of state interests have been less striking than in the judicial sphere.[163] Beginning with NLRB v. Jones & Laughlin Steel Corp.,[164] the twentieth-century Court has accorded great deference to Congress's power under the Commerce Clause. Under current Commerce Clause analysis, the courts uphold congressional action if there is any rational basis upon which Congress could find a relation between its action and interstate commerce.[165] The conventional wisdom has been, at least between 1937 and 1976, that there were no external constitutional limitations on the commerce power based on considerations of federalism.[166]
The Constitution places very few express limitations on congressional power,[167] although the reservation to the states provided by the Militia Training and Officering Clause is one example.[168] But it was under just such a provision, the Tenth Amendment, that the Court was willing, in 1976, to strike down a 1974 amendment to the Fair Labor Standards Act in National League of Cities v. Usery.[169] Usery evidence a search by the Court for a workable way to identify those acts of Congress that treat the states in a manner inconsistent with their presupposed status under the federal scheme. Although Usery was grounded in the Tenth Amendment, it is instructive on the broader concepts of state sovereignty and is the clearest recent statement on what has become known as the 'New Federalism.'[170]
In striking down federally mandated minimum-wage-and-hour standards for municipal transit workers, the Court held that Congress could not exercise power in a fashion that impairs the States' 'ability to function effectively in the federal system.'[171] This case was a resurrection of the Tenth Amendment as an affirmative [Page 351] limitation on federal power, an interpretation it had not generally enjoyed in prior cases,[172] and one which would not survive.[173]
Subsequent cases in which the Court attempted to interpret Usery in light of fifty years of expansive Commerce Clause jurisprudence resulted in a 'traditional state functions' test.[174] The difficult application of Usery and its ultimate demise lay in the Court's inability to develop a principled way to distinguish between those functions that are necessary for a state's independent and meaningful existence and those that are not.[175]
Finding the search futile, the Court flatly overruled Usery in Garcia v. San Antonio Metropolitan Transit Authority.[176] In Garcia, Justice Blackmun, who had provided the crucial fifth vote in Usery, but who had separately warned that he was 'not untroubled by certain possible implications of the Court's opinion,'[177] joined the four Usery dissenters in ruling that the exercise in line drawing presented by Usery made it 'difficult, if not impossible, to identify an organizing principle' by which traditional state functions could be distinguished from those that are not.[178] Justice Blackmun's shifting position on this issue reflects the Court's continuing search for the true meaning of state sovereignty in the federal system.
In a case presenting a factual scenario more analogous to that posed by federal control over the state militia, the Court in FERC v. Mississippi[179] considered whether the federal government may condition continued state regulation on the state's acceptance of federal regulatory provisions.[180] In that case, Mississippi challenged a system in which continued state regulation of an area under the Federal Energy Regulatory Commission's (FERC's) jurisdiction was conditioned upon a state's consideration of recommendations made by FERC.[181] The Court declined to strike down the measure because, although it did involve federal intervention in a state program [Page 352] essential to the state's sovereign existence¾regulation of the state's energy utilities¾it was also voluntary. The harms to the state were only attendant to a regulatory scheme that was optional.[182] Because the state could consider the federal policies and then proceed on its own course, the interference with state sovereignty was minimal.[183] Such a ruling allows Congress to accomplish through administrative pressure and informal, yet powerful, institutional influence what presumably Congress could not do through express statutory language.
In a case involving the Age Discrimination Employment Act's application to state and local governments, the Court again expressed its concern for state sovereignty. In EEOC v. Wyoming,[184] the Court considered the independence of the 'state qua state.' The Court refused, however, to strike down application of federal hiring standards to the state because the state could still pursue its objectives merely by complying with reasonable federal standards.[185] The federal regulation allegedly did not affect the state's role in making employment policy decisions but only prescribed the manner in which those policies were to be achieved.[186] Thus, the states were allowed to pursue their own interests while only minimally burdened by federal regulation. The Court chose not, however, to specify the level of 'procedural requirements' that would constitute a substantive interference meriting judicial correction.
Many commentators point out that the theories of power and its division that lie just beneath the surface of the Constitution indicate that no affirmative restrictions on congressional power vis-a-vis the states are contained in the Constitution.[187] Rather, implied limitations are effected by internal political checks guaranteed by the power of the states and their institutional interests within the federal branches.[188] Opponents point out, however, that the interest of the states might no longer be adequately represented in the federal legislative process and that the judicial branch has a role in protecting states' 'rights' that underlie the federal structure of the Union.[189]
The federalism question is therefore reduced to its essential core and is of compelling constitutional significance. State have an in-[Page 353]herent interest that is tied to every function that they perform. This is the interest of the state to be free from the restraint of intrusive federal control when attempting to meet the demands of its citizenry in the very real and necessarily pragmatic world of local government. This interest is most needful of protection in state executive branch areas, such as the control over the militia. Professor Tribe nicely summarizes the parameters of the problem as follows:
If the institutional interests of state governments in limiting federal intrusion into hitherto local spheres of concern are ordinarily taken into account in congressional actions, then the political process of federal legislation may be counted on to incorporate a consistent check against the full use of congressional power. Conversely, since federalism is one of the postulates of the constitutional structure, if state institutional interest prove to be inadequately represented in Congress, then the Supreme Court's contemporary commerce clause doctrine would have to be considered deficient to the extent that it leaves state autonomy unprotected.[190]
A logical extension of this theory is that when state interests are effectively disregarded by an act of Congress, as in the overseas training debate,[191] and thus the interests are per se inadequately represented, then the Court must step in to ensure that representation. To date, the Court has not embraced such a theory.
To be sure, the Court has been searching for the proper forum for an expression of some variation of this theory, to wit: FERC, EEOC, and Usery. Apparently, however, these cases have lacked a certain mix of factors that would find a majority of the Court comfortable with a vindication of state power as over federal action. Although these cases have implicated both state and federal interests, that seems to be missing is a sufficient basis in the text of the Constitution, a workable doctrinal approach to line-drawing, or an egregious enough harm to a structural postulate of the Constitution to merit invalidation of a federal act.
The Court would require, it seems, a specific recognition in the Constitution itself of a function or power that is to be exercised by the states in their role as sovereigns but that is nevertheless also susceptible to federal regulation. Further, the Constitution would need to indicate that this very scheme of dual control is an intended objective of the system rather than some unwanted yet necessary byproduct. The power over the state militia and the militia's role in the national defense present just such a power relationship. [Page 354]
B. Constitutional Protection for the State Militia
Could challenges to the militia system present the right set of facts, the right judicial chemistry to allow the Court to develop a sound general theory of federal-state relations? Two federal district courts and one court of appeals have declined to do so.[192] One court of appeals, however, has accepted a challenge to federal regulation but on a narrow ground that does not embrace the broad postulates of federalism.[193] As more and perhaps higher courts grapple with such challenges, perhaps that will change.[194]
The difficulties with the Court's prior attempts to develop a workable theory of state sovereignty are legion. The Court's decision to overrule Usery reflects a judicial discomfort in striking down a congressional act based on the amorphous notion of a state's 'traditional governmental functions.'[195] Similarly, financially coerced participation in a federal program that is truly 'optional,' or regulatory schemes that require states' compliance with only minimal procedural requirements, are constitutionally permitted.[196] In addition, prudential doctrines, such as standing and the political question doctrine, have also acted as obstacles to the vindication of states' rights.[197]
The militia system and challenges to the training and officering schemes imposed by the federal government rise above these problems. This particular mix of competing interests provides an appropriate forum that a majority of the Court could embrace to provide a clear statement that the federal government in this area has encroached too far into state government territory.
1. On the Merits
The Constitution's structural provisions regarding the militia describe an institution of federal and state dimension. Specific textual reference is made to both state and federal powers that are to be exercised in governing this institution.[198] Both actors are to have a [Page 355] role in its governance. Over time the federal government has through various means increased its domain over the institution, resulting in a proportional decrease in state power.[199] Serious and judicially cognizable harms to state interests,[200] as well as to the general efficacy of the militia,[201] have resulted from this imbalance. Moreover, a group of litigants¾the governors or state legislators of the various states¾has standing to raise challenges to specific aspects of the system that go too far in intruding on state powers.[202]
The arguments available to these litigants appeal to a wide range of judicial approaches to decisionmaking. For the textualist, there is clear language in Article I defining the state's role against the broader power of the federal government.[203] To appeal to the structuralist, there is the notion that the national government is responsible for foreign affairs and should not force the states to give their imprimatur to a foreign policy in which they have no voice. Also, for the structuralist there is the concept that the government may only use the militia for its core functions. For the doctrinalist, there are the notions of federalism and state sovereignty. Although unable alone to provide the basis for prior affirmative vindications of states' rights against Congress, these approaches to constitutional interpretation might work in tandem to carry the day.
Two different federal courts of appeals have addressed the overseas training issue. In 1987, Rudy Perpich, the Governor of Minnesota, challenged the constitutionality of the Montgomery Amendment.[204] In upholding the Amendment, the district court relied primarily on a construction of the Constitution's militia provisions that narrowly defined the state's power and expansively defined the federal role.[205] The court reasoned that the gubernatorial consent provisions of prior federal statutes covering federalization for training were merely congressional niceties; they were not constitutionally mandated, and what Congress had the power to give it could easily take away.[206] The court did not, however, consider the broader approach that embraces notions of federalism and state sovereignty. When the case eventually reached a three judge panel of the Eighth Circuit, however, the district court was re-[Page 356]versed.[207]
The panel made hardly any reference to the district court's opinion, but instead analyzed the case as if before a court for the first time. The opinion began with a comprehensive survey of the Framer's intent and looked to the text of the Militia Clauses, interpreted by the Selective Draft Law Cases. The panel found that in order for Congress to call forth militia there must be a stated 'national exigency.' Because there was no such statement made with the enactment of the Montgomery Amendment, the panel held the Amendment unconstitutional.[208]
The panel also rested its conclusion on what it deemed a consistent deference by Congress to the states' control over the militias prior to the enactment of the Montgomery Amendment¾a questionable proposition at best.[209] Thus casting the Montgomery Amendment as an aberration, the court avoided speaking to the untrammeled encroachment of the federal government into this area of state power. Although the conclusion of the Eighth Circuit panel's opinion is the preservation of the gubernatorial consent provision, the analysis is devoid of any reference to state interests or the notion of federalism as a constitutional protection that might be applied to federal-state relations in a general way. In this sense, the panel did not go far enough. On the other hand, perhaps the panel acted appropriately. After all, it better suits the role of a federal court of appeals to be conservative both in the instances and the manner in which it strikes down federal legislation.[210] Ultimately, it is the Supreme Court that should make broad pronouncements with such great national ramifications as that called for by this Note.
A Massachusetts federal district court took a slightly different approach than the district court in Minnesota when Governor Michael Dukakis challenged the Reagan Administration's plan to send state guardsmen overseas.[211] In that case, Governor Dukakis primarily argued that because the guardsmen never cease to be militiamen, the constraints of the Militia Clauses always apply.[212] On its face, reasoned the court, this logic renders unconstitutional the dual enlistment system.[213] This system is clearly a vehicle for circumventing the language of clause 15 delineating the circumstances under which the President can call out the militia. Because the dual enlistment system's constitutionality was upheld in the Selective Draft Law Cases,[214] the court concluded that the Militia Clause could not work [Page 357] as an independent check on federal power over the militia.[215] The First Circuit affirmed stating merely that it adopted the reasoning of the district court.[216]
The whole underlying context of the Selective Draft Law Cases was the gathering storm of the First World War. This atmosphere fostered a reading of clauses 15 and 16 that was strained, at best, in order to further a general interest embodied in the structure of those clauses. The United States' use of the militia in that conflict was of a character similar to those core militia functions embodied in clause 15, which the Framers conceived would be appropriate for federal use.[217] No such statement can be made about the use of national guardsmen for peacetime 'training' in politically and militarily sensitive overseas areas. The Dukakis court declined to consider that while the dual enlistment system ensures that Congress can make all laws necessary and proper for the raising of armies and defense of the nation during wartime¾even to the extent of using the Guards overseas¾gubernatorial consent for peacetime training ensures that, short of national emergency, a state's power over the Guard is not circumscribed. Preserving this gubernatorial consent strikes the appropriate balance and allows both the state and federal governments to act in ways consistent with what the Framers conceived would be their proper powers and duties.
2. Prudential Considerations
The difficulties in striking down a provision like the Montgomery Amendment or the federal recognition system for officers are many.[218] The prudential doctrines that the Supreme Court has used to avoid hurling constitutional thunderbolts, what Professor Bickel has called the 'Passive Virtues,'[219] could very well work to prevent judicial review of the merits. The opinions by the Dukakis and Perpich courts did not raise these issues; it seems that their reliance on narrow grounds to decide the merits allowed them to avoid making sweeping constitutional pronouncements that would trigger such concerns.
As more and higher courts deal with these issues perhaps broad inquiries into the federalism and structural concerns, as outlined above, will become inevitable. First, the political question doctrine [Page 358] might stand in the way of the Court getting involved in this struggle between the states and the federal government.[220] Second, because training overseas implicates the nation's foreign policy, states may not have standing to challenge the federal law. Third, and perhaps most importantly, the traditional deference shown Congress and the President in the area of national defense is considerable; there is perhaps no policy area over which the political branches are considered to have such plenary control.[221]
The political question doctrine does not preclude judicial resolution of the current controversy over the National Guard. This doctrine is prudential and discretionary and is used by a court to preserve its own institutional legitimacy.[222] The doctrine should not be construed to impede the vindication of fundamental constitutional values. It has not stood in the way of federal protection from encroachment on individual rights by the state,[223] and similarly should not be used to allow impermissible federal encroachment on state authority.[224] Although the jurisprudence of states' rights is not settled, state sovereignty is a recurring theme and the Court is aware that this area is sorely in need of judicial attention.[225] Be-[Page 359]cause the standards defining the institutional interests of the states under the Constitution are unclear does not mean that the political question doctrine should be used to prevent their clarification.
In a theory that finds its roots in those considerations that give rise to the political question doctrine, Professor Wechsler dismisses the concept of judicial vindication of states rights.[226] He argues that those state interests that would be judicially considered are already part of the decisionmaking process at the legislative level; whatever protections are necessary for the state's maintenance of an independent and meaningful existence are already in place and the states make successful use of those protections.[227] However, because federal legislators represent individuals, it does not necessarily follow that Congress is the best forum for defining the constitutional rights of individuals.[228] Similarly, because the states are represented by individual members of Congress does not mean that courts should leave that body to define the rights of the states.
Some critics argue that the states, in objecting to the overseas training missions in politically sensitive countries, are impermissibly meddling in the conduct of foreign affairs.[229] The states never have and never could have the power to conduct the foreign affairs of the nation. Does the federal government have the right, though, to force the states to give their institutional imprimatur, indeed provide their most basic executive resources, to a foreign policy program with which the states may vehemently disagree?
Surely states are required to give full support to federal programs under the Supremacy Clause[230] and for the preservation of the Union. But the Framers, through the militia provisions and the Second Amendment, sought to avoid the same situation that results when an adventurous federal government is allowed to force the states to provide its military resources for anything other than national defense or emergency.[231] The constitutional structure tacitly postulates limitations that prevent the maintenance of a standing [Page 360] army in excess of true national security needs.[232] The state militia should be reserved to the states consistent with those postulates. The states should not be forced to commit their resources to foreign affairs or national security policies with respect to which the federal government cannot politically justify committing its own resources, and with regard to the decision to involve American military forces the states have no input.[233]
Perhaps most difficult to answer are the questions about the traditional deference given the political branches when it comes to national defense. Well settled is the principle that during times of war Congress and the Executive may act in a way that would unquestionably be unconstitutional under other circumstances.[234] The more difficult question arises when the federal government acts in a way inconsistent with its powers under the Constitution, during a time when the nation is not at war but when the possibility or the threat of armed conflict is the justification for the act. When the acts of Congress are aimed towards arming, training, and supervising the armed forces, Congress is acting in one of its most unbridled and unrestricted capacities. Still, in the area of peacetime regulation no one would argue that there are no affirmative limitations on Congress's power over what has come to be known as national security issues.
The fact that we live in a dangerous world and that Congress has the responsibility for keeping that world at bay cannot mean that the Court should abdicate its duty to define the basic constitutional pillars that support our national defense system. Congress has wide discretion but not so wide that it may ignore the dictates of the document that is the source of its power and which grants it that discretion. The structure of our national military forces and those of the states is defined by Article I,[235] and that article reserves powers to the states over their respective militia, powers that Congress is today abridging.[236] Federal discretion over national defense issues cannot go so far. [Page 361]
Conclusion
The National Guard is the modern militia reserved to the States.[237] This principle is as valid today as two hundred years ago. The statutory framework that attempts to make the state Guards into a standing federal reserve force is out of step with that fundamental principle. Some professional military personnel and those in the business of advising them believe that the militia concept is an anachronism that is itself out of step with the realities of the Nuclear Age.[238] Perhaps so. Perhaps what is really needed is an abolition of the militia and an all-federal reserve force in its place. Yet, given the multiplicity of what many consider more pressing national issues meriting a constitutional amendment, this is not a political or practical reality. So what is left is a system that is by its very nature less than optimal. In the language of statisticians, given these constitutional and political constraints, how should the variables be arranged to arrive at the optimal solution, and what role should the courts take in this optimization?
The answer to the first question depends on the answer to the second. The Court's role is to say what the constraints are and develop a theory by which the political branches may predict before-hand what the constraints in future situations will be.[239] Once the political branches and the states know where the end of state control is and where federal power begins, then these two actors can concentrate on making their individual contributions to the ultimate defense solution as effective as possible. If the states must maintain independent military forces for their own purposes, but also must supplement the national defense, then the courts and Congress should be ensuring that the states are allowed to do what must be done to serve both of these ends.
Congress could begin by recognizing this truth and reforming the National Guard system to give the states more independence in developing and executing militia policy. Until such action occurs, however, the courts could aid in this process by striking down fe-[Page 362]deral provisions that overstep the bounds of federal power over this uniquely state-federal institution.
Patrick Todd Mullins
* This Note was developed by Patrick Todd Mullins.
1. Perpich v. United States Dep't of Defense, 666 F. Supp. 1319, 1325 (D. Minn. 1987). Governor Perpich asserted that the Montgomery Amendment, 10 U.S.C. § 672(f) (Supp. IV 1986), which removed the requirement of gubernatorial consent for federal training of state National Guard units, was unconstitutional. Perpich, 666 F. Supp. at 1325.
2. Perpich, 666 F. Supp. at 1325.
3. Dukakis v. United States Dep't of Defense, 686 F. Supp. 30, 38 (D. Mass. 1988).
4. Dukakis v. United States Dep't of Defense, 859 F.2d 1066, 1066 (1st Cir. 1988).
5. Perpich v. United States Dep't of Defense, No. 87-5345, slip op. at 3 (8th Cir. Dec. 6, 1988).
6. Perpich v. United States Dep't of Defense, No. 87-5345, slip. op. (8th Cir. Jan. 11, 1989).
7. See generally Hirsch, The Militia Clauses of the Constitution and the National Guard, 56 U. CIN. L. REV. 919 (1986) (providing a recent analysis of the constitutional issues involved with today's National Guard system); Wiener, The Militia Clause of the Constitution, 54 HARV. L. REV. 181 (1940) (providing a legal history of the Article I clauses that describe the government's power over the militia as well as the federal statutes enacted pursuant to those clauses). For a more in-depth discussion of Hirsch's view of the system, see infra note 81.
8. See HEADQUARTERS, DEP'T OF THE ARMY, NATIONAL GUARD REGULATION 10-1 (1987) [hereinafter HQDA, NGR]; NATIONAL GUARD ALMANAC 77 (S. Gordon & A. Ungerleider eds. 1988) [hereinafter ALMANAC].
9. See infra notes 12-13 and accompanying text. A distinction exists between 'organized' militia, a regularly drilling unit of armed citizens, and 'unorganized' militia, which consists of all able-bodied men in the nation between the ages of 17 and 45. See 10 U.S.C. § 311 (1982). The distinction is not crucial to this discussion, and consequently, reference to the National Guard in this Note relates only to the concept of an 'organized' militia.
10. For a concise summary of the historical role of the militia in British colonial North America, see J. HILL, THE MINUTE MAN IN PEACE AND WAR: A HISTORY OF THE NATIONAL GUARD 1-31 (1964).
11. See, e.g., N.C. CONST. art. XII, § 1; PA. CONST. art. IV, § 7; VA. CODE ANN. § 44-8 (1986).
12. See 32 U.S.C. § 101(5) (1982) (defining the 'Army National Guard of the United States').
13. See 10 U.S.C. § 101 (1982) (defining the components of the U.S. military forces).
14. See infra notes 86-88 and accompanying text.
15. Throughout this Note, 'the militia' refers to the general institution or system rather than a specific statutory or juridical entity. It is understood that 'the militia' are essentially state organizations, and references to the federal militia will therefore proceed the term 'national' or 'federal' when that distinction is desired.
16. See J. HILL, supra note 10. For a treatment of the history of the militia in England and pre-Revolutionary America, see M. REID, IN DEFIANCE OF THE LAW (1981). Reid details the role of militia during the Revolution, the strengths and weaknesses of military forces at the local level, and how they related to the controversy over whether to have a standing army during the colonial period. Id. See generally J. MAHON, THE HISTORY OF THE MILITIA AND THE NATIONAL GUARD (1983) (providing a recent and comprehensive history of the militia); W. RIKER, SOLDIERS OF THE STATES: THE ROLE OF THE NATIONAL GUARD IN AMERICAN DEMOCRACY (1957) (detailing the history of the militia up until the Vietnam era).
17. See J. MAHON, supra note 16, at 9-13; W. RIKER, supra note 16, at 1-10.
18. See infra notes 38-74 and 82-89 and accompanying text.
19. For a few instances in which the Supreme Court has addressed such broad constitutional issues, see Gilligan v. Morgan, 413 U.S. 1, 11-12 (1973) (holding that purely technical questions regarding the adequacy of National Guard training presented nonjusticiable political questions); United States v. Miller, 307 U.S. 174, 177-82 (1939) (interpreting the Second Amendment as barring federal control over the states in governance of the militia, but not barring federal regulation of private conduct such as handgun ownership); Selective Draft Law Cases, 245 U.S. 366, 387-88 (1918) (upholding Congress's power to draft members of the state militia pursuant to a declaration of war).
20. U.S. CONST. art. I, § 8, cls. 15, 16, 18.
21. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 293 (M. Farrand ed. 1911) [hereinafter FARRAND].
22. Id. at 326.
23. 2 FARRAND, supra note 21, at 330-33.
24. THE FEDERALIST NO. 29, at 172 (A. Hamilton) (H. Lodge ed. 1888) (emphasis added).
25. The draft language read:
To make laws for organizing[,] arming and disciplining the militia, and for governing such part of them as may be employed in the service of the U.S., reserving to the States respectively, the appointment of the officers, and the authority of training the Militia according to the discipline prescribed by the United States.
1787 DRAFTING THE U.S. CONSTITUTION 913 (W. Benton ed. 1986) [hereinafter BENTON].
26. 1 FARRAND, supra note 21, at 386.
27. Id. at 381.
28. The Second Amendment also mentions the militia, stating 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.' U.S. CONST. amend. II. Although on its face this amendment appears to be an affirmative protection of the people's right to bear arms in order to maintain the militia, it has been read rather as an affirmation of the importance the Framers placed on the local character of the military forces belonging to the states. See United States v. Miller, 307 U.S. 174, 178 (1939).
29. See, e.g., 10 U.S.C. § 311, 32 U.S.C. §§ 101-716 (1982 & Supp. IV 1986).
30. See infra notes 99-108 and accompanying text.
31. See E. COLBY, THE NATIONAL GUARD OF THE UNITED STATES I-5 (1977) (detailing militia service in the French and Indian War between 1754 and 1763); J. MAHON, supra note 16, at 14-28 (noting that responding to Indian threats was the main use of the militia).
32. The Contingental Army was the forerunner of the federal Regular Army. M. REID, supra note 16, at 9. See generally L. SPAULDING, THE UNITED STATES ARMY IN WAR AND PEACE (1937) (providing an authoritative history of the U.S. Army prior to the Second World War).
33. See W. RIKER, supra note 16, at 11.
34. Ch. 25, 1 Stat. 95 (1789) (repealed 1790).
35. Id. § 1, 1 Stat. at 96.
36. James Madison's notes on the Constitutional Convention in 1787 capture the impetus to this legislation. In these notes he acknowledges that one of the Convention's participants pointed out that '[t]he existing Congress [was] so constructed that it [could not] of itself maintain an army.' BENTON, supra note 25, at 155.
37. See W. RIKER, supra note 16, at 11-20.
38. Ch. 33, 1 Stat. 271 (1792).
39. Professor Wiener noted that under this regime the militia was required to muster only once a year and that '[a]t these occasions, as far as can now be ascertained, Mars was less in evidence than Bacchus.' Wiener, supra note 7, at 187.
40. Federal Militia Act of 1792, § 1, 1 Stat. at 271.
41. Id.
42. Id.
43. See J. MAHON, supra note 16, at 53; W. RIKER, supra note 16, at 21- 61.
44. Act of Sept. 29, 1789, ch. 25, 1 Stat. 95, 96 (repealed 1790).
45. See J. MAHON, supra note 16, at 127.
46. See id.
47. See W. RIKER, supra note 16, at 60-61.
48. Ch. 196, 32 Stat. 775 (1903) (repealed 1956).
49. See J. HILL, supra note 10, at 186-89.
50. See Weiner, supra note 7, at 195.
51. The Dick Act was partly the result of intense lobbying efforts by the National Guard Association (NGA), a private professional organization representing members from the ranks of the state Guards. The NGA was and continues to be the primary private lobbying group for the state Guards. This association can be credited with much of the political work resulting in improved support for the militia. See W. RIKER, supra note 16, at 68-70.
52. See Dick Act, § 3, 32 Stat. at 775. The term was already in use in some states, and is thought to have originated from a visit by Lafayette in 1824 in which he remarked that a New York militia unit reminded him of the Paris National Guards. E. COLBY, supra note 31, at I-1.
53. Dick Act, § 3, 32 Stat. at 775.
54. Id. § 20, 32 Stat. at 779.
55. Id. § 14, 32 Stat. at 777. See generally H.R. REP. NO. 1094, 57th Cong., 1st Sess. (1902) (providing background on the Dick Act); S. REP. NO. 2129, 57th Cong., 1st Sess. (1902) (same).
56. Ch. 204, 35 Stat. 390 (1908).
57. Id. § 4, 35 Stat. at 400.
58. See supra text accompanying note 20.
59. UNITED STATES WAR DEP'T, DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL OF THE ARMY: 1912-1940, at 644 (1942).
60. 29 Op. Att'y Gen. 322 (1912).
61. Ch. 134, 39 Stat. 166 (1916) (current version in scattered sections of 10 U.S.C. and 32 U.S.C.).
62. See Hirsch, supra note 7, at 945-46.
63. Ch. 134, § 111, 39 Stat. at 211 (repealed).
64. See Weiner, supra note 7, at 203 & n.128.
65. Ch. 134, § 67, 39 Stat. at 199-200 (1916) (current version at 32 U.S.C. §§ 106-107, 708 (1982)).
66. See H.R. REP. NO. 297, 64th Cong., 1st Sess. 9 (1916). Although this and all subsequent legislation concerning militia did not create mandatory obligations or procedures, the states had no choice but to abide by it. No language required the states to do anything with their militias. The laws did, however, increase the standards of readiness, manpower, and equipment that the states had to meet pursuant to the 'standard to be determined by Congress' provision of the Militia Training and Officering Clause of Article I. See U.S. CONST. art. I, § 8, cl. 16. A recurring fact pattern emerges: the states, faced with ever more demanding standards but unable to pay for upgrading, are forced to accept both federal funding and the resulting loss of control that goes along with that funding. See infra note 73.
67. Ch. 134, § 111, 39 Stat. at 211 (repealed).
68. Id. § 60, 39 Stat. at 197 (current version at 32 U.S.C. § 104(d)-(f) (1982)).
69. Id. § 69, 39 Stat. at 200 (current version at 32 U.S.C. § 302 (1982)).
70. Id. §§ 102-108, 39 Stat. at 208-09 (current version at 32 U.S.C. §§ 326-333 (1982)). The modern Uniform Code of Military Justice is contained in 10 U.S.C.A. ch. 47 (West 1983 & Supp. 1988).
71. National Defense Act of 1916, §§ 74-75, 39 Stat. at 201-02 (current version at 32 U.S.C. §§ 305, 307(a)-(c) (1982)).
72. See W. RIKER supra note 16, at 80-82.
73. As this Note's treatment of the development of the National Guard system will reveal, the damages to state interests usually result from a program of federal conditional spending. Although not all of the harms result from such programs, those that do introduce a new aspect to the analysis.
Questions concerning the validity of coercive federal spending are part of a broader subject usually referred to as 'unconstitutional spending,' a detailed analysis of which is beyond the scope of this Note. The general question, however, strikingly resembles the queries involved in the general state sovereignty versus federal power debate. Does the power of the government to deny a privilege include the power to grant it on any condition, including the surrender of the state's constitutional right to maintain and protect its institutional interests? For an interesting treatment of conditional spending as it relates to the autonomy of the states, see La Pierre, Political Accountability in the National Political Process¾The Alternative to Judicial Review of Federalism Issues, 80 NW. U.L. REV. 577, 591-96, 601 n.125 (1985).
In the case at hand, does the power of the federal government to deny federal funding to state National Guard units include the power to grant such funding on the condition that state Guards subject themselves to regulatory control¾a control so pervasive that it prevents the states from maintaining the units for state purposes? In addition, may the federal government conditionally spend in such a way as to involve states in foreign policy issues without their permission or approval? The questions admit of no categorical answer.
As with so many areas of constitutional law, the unconstitutional conditions doctrine requires a balancing test. The Court has used a case-by-case approach in conditional spending cases, and therefore, it seems that the factors to be weighed are the same as those involved in the general federalism debate. See generally Rosenthal, Conditional Federal Spending and the Constitution, 39 STAN. L. REV. 1103 (187) (providing a comprehensive discussion of conditional spending). How well-established and important are the state interests impinged by the conditions will be measured against Congress's power to legislate in the area. See id. at 1106. In particular, Professor Rosenthal laments the demise of National League of Cities v. Usery, 426 U.S. 833 (1976), because it would have provided a baseline for comparison between direct federal legislation and conditional spending. See Rosenthal, supra, at 1139. This issue leads inevitably back to the same questions posed at the outset: (1) what are the state and federal interests at stake; (2) are the state interests being harmed to an extent that a judicial solution is justified; and (3) how can a judicial solution be crafted so as to be consistent with a general theory of federal-state relations?
74. National Defense Act of 1916, § 61, 39 Stat. at 198 (current version at 32 U.S.C. § 109 (1982)). The NDA also authorized the Regular Army to form its own reserve forces. Id. § 30, 39 Stat. at 187 (repealed). This mandate gave rise to the U.S. Army Reserve, the Officers' Reserve Corps, and the Reserve Officers' Training Corps, thus providing the third leg of the eventual tripartite 'Total Force' concept. See J. CARLTON & J. SLINKMAN, THE RESERVE OFFICERS ASSOCIATION STORY 9-10 (1985); R. CROSSLAND & J. CURRIE, TWICE THE CITIZEN 28-32 (1984); J. MAHON, supra note 16, at 253. For a further discussion of the Total Force concept, see infra note 95.
75. 245 U.S. 366, 368, 387-89 (1918).
76. U.S. CONST. art. I, § 8, cl. 15.
77. 245 U.S. at 368.
78. U.S. CONST. art. I, § 8, cl. 12.
79. 245 U.S. at 368.
80. See 10 U.S.C. § 101 (1982) (defining 'Army National Guard of the United States' as 'the reserve component of the Army all of whose members are members of the Army National Guard').
81. See Hirsch, supra note 7. Hirsch notes that this dual status is the lynchpin of the modern federal militia system and the current system of complete federal control. Hirsch sees the Selective Draft Law Cases as a broad expansion of clause 15 powers, and therefore a carte blanche for Congress's use of the militia as long as they are 'federalized.' See id. at 959-61.
82. Ch. 227, 41 Stat. 759 (repealed 1950).
83. See supra text accompanying notes 51-55.
84. Ch. 227, §§ 3a, 42, 44, 49, 41 Stat. at 759, 760, 782, 784.
85. Id. § 111, 41 Stat. at 784.
86. Ch. 87, 48 Stat. 153 (1933) (current version in scattered sections of 10 U.S.C. and 32 U.S.C.).
87. See id. § 5, 48 Stat. at 156 (current version at 32 U.S.C. § 313 (1982)) (establishing that the National Guard may only be called upon in accordance with the law).
88. See id. § 18, 48 Stat. at 160 (repealed) (declaring that the Guard may be called up for active duty in time of war or national emergency).
89. Id. § 11, 48 Stat. at 156 (current version at 32 U.S.C. § 312 (1982)).
90. Pub. L. No. 82-476, 66 Stat. 481 (1952) (largely repealed).
91. Id. § 233(c), 66 Stat. at 489 (repealed).
92. Proclamation No. 4360, 40 Fed. Reg. 14,567 (1975).
93. Cf. BINKIN, U.S. RESERVE FORCES: THE PROBLEM OF THE WEEKEND WARRIOR 1-3 (1974) (providing a study of the reserve components and their status throughout this period of reduction in forces).
94. See H.R. REP. NO. 1069, 94th Cong., 2d Sess. 3-5, reprinted in 1976 U.S. CODE CONG. & ADMIN. NEWS 517, 518.
95. The Total Force was first conceptualized by Pentagon planners in the face of political and budgetary pressures to reduce the standing Army. This concept is an integrated theory of a national conventional defense and remains the basic organizing principle for United States land forces. See J. MAHON, supra note 16, at 243; Hearings on the Department of Defense Appropriations for 1987 Before the Subcomm. on the Department of Defense of the House Comm. on Appropriations, 99th Cong., 2d Sess., pt. 7, at 623 (1986) [hereinafter 1986 House Hearings].
96. 10 U.S.C. § 101(4), (33) (1982) (defining 'Regular Army').
97. Id. § 101(4), (35) (defining 'Reserves').
98. See infra note 108.
99. See 1986 House Hearings, supra note 94 (statement of Lieutenant General Emitt Walker, U.S. Army, Chief, National Guard Bureau).
100. See P. VAN SLYCK, STRATEGIES FOR THE 1980s, 17-32 (1981).
101. See Department of Defense Authorization for Appropriations for Fiscal Year 1987: Hearings on S. 2199 Before the Senate Comm. on Armed Services, 99th Cong., 2d Sess. 343 (1986) (Report of Secretary of Defense to Congress, Feb. 5, 1986).
102. Id.
103. See Weinberger, The Defense Budget: Perspectives and Priorities, in THE DEFENSE BUDGET 13 (1972); Sarkesian, The Myth of U.S. Capability in Unconventional Conflicts, MILITARY REV., Sept. 1988, at 2, 10 (stating that Reserves are part of the current United Special Operations Command).
104. See Hearings on Federal Authority over National Guard Training Before the Subcomm. on Manpower and Personnel of the Senate Comm. on Armed Services, 99th Cong., 2d Sess., pt. 7, at 571 (1986) [hereinafter 1986 Senate Hearings] (prepared statement of James H. Webb Jr., Assistant Secretary of Defense for Reserve Affairs).
105. See id.
106. See id. at 572.
107. See 10 U.S.C. § 673b (1982 & Supp. IV 1986).
108. Military experts, both on active duty and in the reserve components, debate the military efficacy and soundness of this Total Force strategy, but few debate that the Guards are no longer creatures of the state first and reserves for the federal force second. See, e.g., R. KILLEBREW, CONVENTIONAL DEFENSE AND TOTAL DETERRENCE 85-140 (1986); J. RECORD, REVISING U.S. MILITARY STRATEGY 91 (1984); 89 Budget Cuts Active, Keeps Reserve Build-up, Army Times, Feb. 29, 1988, at 1-6.
109. See 11 States Seek Right to Restrict Guard's Training, N.Y. Times, June 17, 1987, at A10, col. 3 [hereinafter 11 States]; Broder, Hands Off National Guard, Governors Say, Wash. Post, Aug. 27, 1986, at A5, col. 1.
110. Pub. L. No. 99-661, § 522, 100 Stat. 3816 (1986) (codified at 10 U.S.C. § 672(f) (Supp. IV 1986)).
111. See The Guard in Honduras, NEWSWEEK, Feb. 17, 1986, at 36.
112. Id. (noting that the federal government commonly sends Guard troops to places like Europe, the Middle East, and Southeast Asia).
113. See 11 States, supra note 108; Broder, supra note 108.
114. Among them were Michael Dukakis of Massachusetts, Richard Celeste of Ohio, and George Deukmejian of California. See Hochberg, Massachusetts Won't Invade Honduras, PROGRESSIVE, June 1986, at 17; Peirce, Control of National Guard a Federalism Issue, 1987 NAT'L J. 388, 388. Commentators have attributed disagreement with Reagan foreign policy in Central America as the motivation for the Governors' opposition. See 1986 Senate Hearings, supra note 104. This allegation, however, to the extent that is has any bearing on the merit of constitutional issues in the debate, favors a gubernatorial consent requirement as the Militia Clauses were meant as a check of federal military power. See infra note 137 and accompanying text.
115. Broder, supra note 109, at A5, col. 2.
116. Pub. L. No. 99-661, § 522, 100 Stat. 3816 (1986) (codified at 10 U.S.C. § 672(f) (Supp. IV 1986)).
117. See 10 U.S.C. § 672(b), (d) (1982).
118. Id. § 672(f) (Supp. IV 1986). The Montgomery Amendment added a new subsection to 10 U.S.C. § 672, subsection (f), stating: '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.'
119. The model case illustrating this structural approach to constitutional decisionmaking is McCulloch v. Maryland, 17 U.S. 316 (1819) (striking down Maryland's attempt to tax the Second Bank of the United States). In McCulloch, Chief Justice Marshall looked to the Necessary and Proper Clause and derived constitutional structures that inhere in the words themselves. Id. at 407. These structures confer rights to certain constitutional players¾one of the three coordinate branches, the states, or individuals. These rights are ancillary to those explicit in the text. For a more thorough discussion of this structural approach, see C. BLACK, JR., STRUCTURE AND RELATIONSHIP IN CONSTITUTIONAL LAW (1969). For a more modern discussion, see P. BOBBITT, CONSTITUTIONAL FATE 74-92 (1982).
120. See Redish & Drizin, Constitutional Federalism and Judicial Review, The Role of Textual Analysis, 62 N.Y.U. L. REV. 1, 38-41 (1987).
121. See Dukakis v. United States Dep't of Defense, 686 F. Supp. 30, 30 (D. Mass.), aff'd, 859 F.2d 1066 (1st Cir. 1988); Perpich v. United States Dep't of Defense, 666 F. Supp. 1319, 1319 (D. Minn. 1987), rev'd, No. 87-5345, slip op. (8th Cir. Dec. 6, 1988), vacated and reh'g granted, No. 87-5345, slip op. (8th Cir. Jan. 11, 1989).
122. See infra notes 139-41 and accompanying text.
123. See supra note 19 and accompanying text.
124. See supra note 19.
125. The Regulations of the National Guard Bureau fill several volumes, cover many subjects, and effectively apply the panoply of federal military standards to National Guard units and personnel. See HQDA, NGR, supra note 8, at 1-10 to 870-20.
126. See supra note 71 and accompanying text.
127. HQDA, NGR, supra note 8, at 350-1, 1-19.
128. See supra notes 50-55 &61-73 and accompanying text.
129. 32 U.S.C. § 109(a) (1982). Congress has prohibited the states from keeping any 'troops,' other than the 'National Guard' and so called 'defense Forces,' that are not subject to call to military duty. Therefore, members of the National Guard and 'defense Forces' are not 'troops.' But cf. United States v. Miller, 307 U.S. 174, 178-79 (1939) (noting the important distinction between '[t]he Militia which the States [are] expected to maintain and train' and 'the Troops they [are] forbidden to keep without the consent of Congress').
130. See THE FEDERALIST NOS. 25 & 28, at 209, 227 (A. Hamilton) (J. Hamilton ed. 1866); 2 FARRAND, supra note 21, at 135.
131. See ALMANAC, supra note 8; NATIONAL GUARD ASS'N OF THE UNITED STATES, ANNUAL REPORT TO THE GENERAL CONFERENCE 2 (1988).
132. This philosophy of judicial interpretation has enjoyed varying degrees of popularity. Compare Perry, The Authority of Text, Tradition, and Reason: A Theory of Constitutional 'Interpretation,' 58 S. CAL. L. REV. 551, 597 (1985) (concluding that 'originalism' is a 'real option' for judges faced with questions of constitutional interpretation) with Brest, The Misconceived Quest for Original Understanding, 60 B.U.L. REV. 204, 234-37 (1980) (criticizing the theory of original intent as a doctrine of constitutional interpretation).
133. See supra notes 21-27 and accompanying text.
134. The militia concept was a compromise that avoided the necessity of a large standing army. Moreover, a standing army was unpopular because of its potential threat to individual and state rights. L. SCHWOERER, 'NO STANDING ARMIES!' 198-99 (1974). One scholar has suggested that fear of foreign service for the militia might have motivated this compromise. Hirsch, supra note 7, at 940-42 & n.116.
135. See 29 Op. Att'y Gen. 322 (1912) (stating that the President did not have the authority to send militia abroad for any purpose). Although this opinion is not law today, it adds force to argument that this was the understanding of the Framers. See also J. ORDRONAUX, CONSTITUTIONAL LEGISLATION IN THE UNITED STATES 503 (1891) (stating that '[t]he militia of the States restricted to domestic purposes alone, are to be distinguished therefore from the army proper'); Hirsch, supra note 7, at 930-31 (arguing that the Framers could never have intended militia use for foreign affairs operations).
136. See W. RIKER, supra note 16, at 18-20.
137. See W. REVELEY, WAR POWERS OF THE PRESIDENT AND CONGRESS 61 (1981). Reveley notes that 'peace was to be the customary state of the new nation. America [was to] avoid aggressive war abroad . . ..' More importantly, he states that '[t]his placed view of foreign relations precluded any explicit consideration of the use of American force abroad.' Id.
138. The language of Article I, section 8 is clear: Congress shall have the power to '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.' U.S. CONST. art. I, § 8, cl. 16 (emphasis added). Clause 16 must, however, be read in conjunction with clause 15, which confers to Congress the power 'for calling forth the Militia to execute the Laws of the Union, suppress insurrections and repeal Invasions.' Id. § 8, cl. 15.
139. See 2 FARRAND, supra note 21, at 330-55. For example, Farrand reports that 'Mr. Sherman, took notice that the States might want their Militia for defence agent [sic] invasions and insurrections, and for enforcing obedience to their laws. They will not give up this point--In giving up that of taxation, they retain a concurrent power of raising money for their own use.' Id. at 332.
140. The view that such familial ties within military units promotes spirit as well as a regular source of personnel remains pervasive today. But cf. W. RIKER, supra note 16, at 11 (asserting that the American colonies enacted draft laws modeled after the English militia system because of the lack of professional soldiers).
141. See HEADQUARTERS, DEP'T OF THE ARMY, FIELD MANUAL 22-100, MILITARY LEADERSHIP 22 (1988).
142. See Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947) (noting that 'the historic police powers of the state are not to be overridden by statute absent clear congressional intent').
143. For two opposing viewpoints on the balancing of interests between the state and federal judiciaries and the problems therein, compare Neuborne, The Myth of Parity, 90 HARV. L. REV. 1105, 1117 (1977) (suggesting that federal constitutional litigation should be 'channeled' to the federal courts because they are better suited for the task) with Bator, The State Courts and Federal Constitutional Litigation, 22 WM. & MARY L. REV. 605, 622 (1981) (concluding that both state and federal courts must have a role and that neither should have a monopoly in enforcing federal constitutional principles).
144. 5 U.S. (1 Cranch) 137 (1803).
145. Id. at 177.
146. State sovereign immunity was first announced in 1890 as a doctrine of jurisdiction grounded in the Eleventh Amendment. Hans v. Louisiana, 134 U.S. 1, 10-20 (1890). In Hans, the Court held that citizens could not bring an action against their home state in federal court. Id. at 19-20. The Eleventh Amendment states: 'The Judicial power of the United States shall not be construed to extend to any suit in law or in equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.' Sovereign immunity has been subject to some limiting doctrines over the last three-quarters of a century, but still stands as a prime example of judicial recognition of state interests in the federal system. See, e.g., Parden v. Terminal Ry., 377 U.S. 184, 192 (1964) (permitting a state to be sued in federal court if it waives sovereign immunity); Ex Parte Young, 209 U.S. 123, 159-60 (1908) (allowing suits against state officers who allegedly have violated federal law).
147. Abstention, first announced in Railroad Comm'n v. Pullman, 312 U.S. 496 (1941), requires that federal courts wait to decide cases that involve unsettled issues of state law until the courts of that state have had an opportunity to speak authorizatively. Pullman abstention also stands for the proposition that, when possible, constitutional questions are to be avoided. See id. at 500.
148. Exhaustion of state-level post-conviction remedies for state prisoners seeking federal habeas corpus relief is a statutory requirement. 28 U.S.C. § 2254(b) (1982). This doctrine originally developed judicially, however, in Ex Parte Royall, 117 U.S. 241, 53 (1886). The courts have rigorously applied this requirement. See Note, State Waiver of the Exhaustion Requirement in Habeas Corpus Cases, 52 GEO WASH. L. REV. 419, 420 n.11 (1984). Although traditionally regarded as a doctrine of efficiency, the exhaustion requirement also allows states to have a full opportunity to examine and administer each criminal case through a full appeals process.
149. Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). The landmark decision established the rule that the states are generally the prime source of the common law and that the federal courts are not empowered to create a general federal common law. Id. at 71. The Erie doctrine has seen many developments since 1938, but still stands as an example of respect for state interests in the balancing of federal and state judicial powers.
150. See Epstein, The Proper Scope of the Commerce Power, 73 VA. L. REV. 1387, 1408-10 (1987).
151. These were the three justifications offered as the foundations of 'Our Federalism,' a Supreme Court doctrine first developed in Younger v. Harris, 401 U.S. 37, 44 (1971). These doctrines buttress the general rule limiting federal court interference with certain important state functions.
[152]. See Michelman, States' Rights and States' Roles: Permutations of 'Sovereignty' in National League of Cities v. Usery, 86 YALE L.J. 1165, 1193 (1977) (citing Rizzo v. Goode, 423 U.S. 362, 379 (1976)).
153. For more elaborate treatment of the effects of federalism on the shaping of federal judicial power, see M. REDISH, FEDERAL JURISDICTION: TENSIONS IN THE ALLOCATION OF JUDICIAL POWER 79-321 (1980).
154. 1 FARRAND, supra note 21, at 249-52, 337-38.
155. See THE FEDERALIST NOS. 29 & 39 (A. Hamilton & J. Madison).
156. See 3 FARRAND, supra note 21, at 548-49; Baucus & Kay, The Court Stripping Bills: Their Impact on the Constitution, the Courts, and Congress, 27 VILL. L. REV. 988, 997 (1982) (noting Hamilton's position that the lack of a federal judiciary was a great weakness of the Articles of Confederation). See generally THE FEDERALIST NOS. 41 & 42 (J. Madison) (noting several weaknesses in the government structure under the Articles of Confederation as reasons why powers should be transferred from the several states to a central government).
157. See 1 FARRAND, supra note 21, at 345-46, 355-57.
158. This recognition has taken both judicial and legislative form. In Mitchem v. Foster, 407 U.S. 225 (1972), the Court commented favorably on the legislative history of Congress' enactment of 42 U.S.C. § 1983, which allows citizens a private right of action against any person, acting under color of state law, to deprive them of their federal rights:
This legislative history [of § 1983] makes evident that Congress clearly conceived that it was altering the relationship between the States and the Nation with respect to the protection of federally created rights; it was concerned that state instrumentalities could not protect those rights; it realized that state officers, might, in fact, be antipathetic to the vindication of those rights; and it believed that these failings extended to the state courts. . . . The very purpose of § 1983 was to interpose the federal courts between the states and the people, as guardians of the people's federal rights¾to protect the people from unconstitutional action under color of state law, 'whether that action be executive, legislative, or judicial.'
Id. at 242 (citing Ex parte Virginia, 100 U.S. 339, 346 (1879)).
159. Forty-nine states have constitutionally or statutorily mandated balanced budgets. THE COUNCIL OF STATE GOV'TS, THE BOOK ON THE STATES 229, Table 6.3 (1988-89).
160. See Epstein, supra note 150.
161. See, e.g., New York v. United States, 326 U.S. 572, 583-84 (1946) (denying New York immunity from federal taxation of revenues generated by state sales of bottled mineral water); United States v. Butler, 297 U.S. 1, 65 (1936) (recognizing that congressional power to spend for the general welfare extends beyond the items explicit in Article I, section 8); see also Monaghan, The Burger Court and 'Our Federalism,' 43 LAW & CONTEMP. PROBS. 39, 41 (1979) (noting that the major reason behind the transformation of the federal system was the modern federal role in taxing, borrowing, and spending).
162. See infra notes 164-66 and accompanying text.
163. See Freilich, Francis & Popejoy, State and Local Government at the Crossroads: A Bitterly Divided Supreme Court Reevaluates Federalism in the Bicentennial Year of the Constitution, 19 URB. LAW. 791, 831 (1987).
164. 301 U.S. 1, 48 (1937) (upholding application of the National Labor Relations Act to a large producer of steel to prevent unfair labor practices).
165. See, e.g., Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 275-83 (1981).
166. See, e.g., Maryland v. Wirtz, 392 U.S. 183, 195-96 (1968) (upholding the Fair Labor Standards Act's minimum wage and overtime pay requirements against the states and their municipalities and specifically rejecting the notion that 'state interests' might outweigh Congress's exercise of otherwise valid constitutional power). The Court has held that other external limitations do, however, constrain the scope of Congress's power under the Commerce Clause. See United States v. Jackson, 390 U.S. 570, 582 (1968) (striking down Commerce Clause legislation as violative of the Sixth Amendment right to trial by jury); Leary v. United States, 395 U.S. 6, 52- 54 (1969) (finding an otherwise permissible Commerce Clause act violative of the Due Process Clause of the Fourteenth Amendment).
167. Congress is denied the power to lay any tax or duty 'on Articles exported from any State,' U.S. CONST. art. I, § 9, cl. 5, to discriminate among state ports in its regulation of commerce or revenue. Id. § 9, cl. 6. Also, Congress may not join or divide states without their consent. Id. art. IV, § 3.
168. Id. art. I, § 8, cl. 16.
169. 426 U.S. 833, 853 (1976).
170. See Redish & Drizin, supra note 120; see also Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1426 n.9 (1987) (discussing the resurrection of federalism as a doctrine of constitutional significance).
171. 426 U.S. at 853 (quoting Fry v. United States, 421 U.S. 542, 547 n.7 (1975)).
172. Dee Darby v. United States, 312 U.S. 100, 124 (1941) (describing the Tenth Amendment as stating 'but a truism that all is retained which has not been surrendered'); Redish & Drizin, supra note 120, at 10-11 (noting the pre-Usery view that the Tenth Amendment meant that if a 'particular power has been given to the federal government, . . . then that power is tautologically not reserved to the state').
173. See infra text accompanying note 176.
174. Although first announced in Usery, the traditional state functions test was not fully elaborated until Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 286-87 (1981).
175. Comment, Garcia v. San Antonio Metropolitan Transit Authority: Is the Political Process a Sufficient safeguard to State Autonomy?, 13 W. ST. L. REV. 261, 271 (1986).
176. 469 U.S. 528 (1985).
177. National League of Cities v. Usery, 426 U.S. 833, 856 (1976) (Blackmun, J., concurring).
178. Garcia, 469 U.S. at 539.
179. 456 U.S. 742 (1982).
180. Id. at 747-48.
181. Id. at 761.
182. Id. at 765-66.
183. Id.
184. 460 U.S. 226 (1983).
185. Id. at 240.
186. Id.
187. This view is most often associated with Professor Herbert Wechsler. See Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition of the National Government, 54 COLUM. L. REV. 543, 559 (1954); see also J. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS 176 (1980) (noting that the structural aspects of the national political process adequately protect the states).
188. See Wechsler, supra note 187, at 558.
189. Aspects of this argument have been applied to interpretation of the Eleventh Amendment. See Nowak, The Scope of Congressional Power to Create Causes of Action Against State Governments and the History of the Eleventh and Fourteenth Amendments, 75 COLUM. L. REV. 1413, 1441 (1975); Tribe, International Immunities in Litigation, Taxation and Regulation: Separation of Powers Issues in Controversies About Federalism, 89 HARV. L. REV. 682, 696-97 (1976).
190. L. TRIBE, AMERICAN CONSTITUTIONAL LAW 241 (1st Ed. 1978).
191. References in the Congressional Record on the House debate over the Montgomery Amendment indicate that the amendment was considered for only minutes. See 132 CONG. REC. H6266 (daily ed. Aug. 14, 1986).
192. See Dukakis v. United States Dep't of Defense, 686 F. Supp. 30 (D. Mass.), aff'd, 859 F.2d 1066 (1st Cir. 1988); Perpich v. United States Dep't of Defense, 666 F. Supp. 1319 (D. Minn. 1987), rev'd, No. 87- 5345, slip op. (8th Cir. Dec. 6, 1988), vacated and reh'g granted, No. 87- 5345, slip op. (8th Cir. Jan. 11, 1989).
193. See infra notes 207-09 and accompanying text.
194. Just prior to publication of this Note, the Eighth Circuit struck down the Montgomery Amendment as unconstitutional. Perpich v. United States Dep't of Defense, No. 87-5345, slip op. at 78 (8th Cir. Dec. 6, 1988). Consequently, a split between the First and Eighth Circuits exists, and a writ of certiorari granted by the Supreme Court might provide an opportunity to address federal-state relations.
195. See National League of Cities v. Usery, 426 U.S. 833, 852 (1976).
196. See EEOC v. Wyoming, 460 U.S. 226, 240 (1983); FERC v. Mississippi, 456 U.S. 742, 765-66 (1982).
197. See, e.g., South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966) (dismissing South Carolina's challenge to the Voting Rights Act of 1965 because it did not have standing to invoke the Article I Bill of Attainder Clause or the principle of separation of powers); Massachusetts v. Mellon, 262 U.S. 447, 480, 483-86 (1923) (dismissing challenges to the constitutionality of the Maternity Act and noting that 'the State of Massachusetts presents no justiciable controversy either in its own behalf or as the representative of its citizens').
198. See supra text accompanying note 20.
199. See supra notes 48-55, 61-71 and accompanying text.
200. See supra notes 125-28 and accompanying text.
201. See supra notes 140-41 and accompanying text.
202. Modern standing doctrine requires an 'injury in fact' and some causal nexus between the injury and the challenged action. Warth v. Seldin, 422 U.S. 490, 498-508 (1975).
203. See supra text accompanying note 20.
204. Perpich v. United States Dep't of Defense, 666 F. Supp. 1319 (D. Minn. 1987), rev'd, No. 87-5345, slip op. (8th Cir. Dec. 6, 1988).
205. Id. at 1323-24.
206. Id. at 1324.
207. Perpich v. United States Dep't of Defense, No. 87-5345, slip op. (8th Cir. Dec. 6, 1988).
208. Id. at 66.
209. See supra notes 20-77 and accompanying text.
210. Just prior to publication of this Note, the Eighth Circuit vacated the decision in Perpich and granted a rehearing en banc. Perpich v. United States Dep't of Defense, No. 87-5345, slip op. (8th Cir. Jan. 11, 1989).
211. Dukakis v. United States Dep't of Defense, 686 F. Supp. 30, 35 (D. Mass.), aff'd 859 F.2d 1066 (1st Cir. 1988).
212. Id.
213. Id.
214. See supra notes 75-79 and accompanying text.
215. Dukakis, 686 F. Supp. at 38.
216 Dukakis v. United States Dep't of Defense, 859 F.2d 1066, 1066 (1st Cir. 1988).
217. See supra notes 133-37 and accompanying text.
218. Professor Weiner characterized the federal recognition system as sharply curtailing '[t]he constitutional provision, 'reserving to the States . . . the Appointment of the Officers.'' Weiner, supra note 7, at 201 (quoting U.S. CONST. art. I, § 8, cl. 16). A full discussion of this issue is beyond the scope of this Note, however.
219. Bickel, The Supreme Court 1960 Term¾ Foreword: The Passive Virtues, 75 HARV. L. REV. 40, 42-47 (1961).
220. One of the most recent major cases in which the political question doctrine was held to make a case non-justicable involved the Ohio National Guard. Gilligan v. Morgan, 413 U.S. 1 (1973). In Morgan, the Court concluded that federal courts could not decide cases brought against Ohio over the deaths of students at the Kent State riots. Id. at 10-11. The deference to Congress in matters of defense¾specifically over the training and disciplining of troops acting to quell civil disturbances¾was the main justification. Id. It would have been interesting, for the purposes of this Note, had the Court reached the merits because the troops were not in federal service but on state duty.
221. The Supreme Court has stated that 'the constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end is sweeping.' United States v. O'Brien, 391 U.S. 367, 377 (1968). When the action stems from 'congressional authority to raise and support armies and make rules and regulations for their governance' judicial deference is at its apogee. Rostker v. Goldberg, 453 U.S. 57, 70 (1981).
222. The Supreme Court has stated that 'it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.' Baker v. Carr, 369 U.S. 186, 211 (1962). Moreover, in general
the courts cannot reject as 'no law suit' a bona fide controversy as to whether some action denominated 'political' exceeds constitutional authority. The cases we have reviewed show the necessity for discriminating inquiry into the precise facts and posture of the particular case, and the impossibility of resolution by any semantic cataloguing.
Id. at 217; see also Bickel, supra text accompanying note 219.
223. Baker, 369 U.S. at 226 (1962).
224. Redish, Judicial Review and the Political Question, 79 NW. U.L. REV. 1031, 1059 (1985). Professor Redish states:
That the states and the various branches can normally protect their own interests means only that the number of instances in which serious constitutional challenges . . . are presented will be relatively few. It does not mean that if and when they do arise, the Supreme Court should shirk its fundamental obligations as constitutional arbiter.
Id.
225. See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 587-89 (1985) (O'Connor, J., dissenting). Additionally in a brief dissent in Garcia, then Associate Justice, now Chief Justice, Rehnquist predicated that Usery would rise again: '[T]he judgment in these cases should be affirmed, and I do not think it incumbent on those of us in dissent to spell out further the fine points of a principle that will, I am confident, in time again command the support of a majority of this Court.' Id. at 580 (Rehnquist, J., dissenting).
226. See Wechsler, supra note 187.
227. The Court adopted this approach in Garcia: '[W]e are convinced that the fundamental limitation that the constitutional scheme imposes on the Commerce Clause to protect the 'States as States' is one of process rather than one of result.' 469 U.S. at 554.
228. See P. BATOR, P. MISHKIN, D. SHAPIRO, & H. WECHSLER, THE FEDERAL COURTS AND THE FEDERAL SYSTEM 434-38 (2d ed. 1973) (noting that congressional elimination of the lower federal courts and removal of state court jurisdiction over federal questions would leave no judicial forum for vindication of individual rights and would raise serious due process problems).
229. This argument was made by the federal government in Perpich and rejected by the Eighth Circuit. Perpich v. United States Dep't of Defense, No. 87-5345, slip op. at 67-68 (8th Cir. Dec. 6, 1988).
230. U.S. CONST. art. VI, § 2.
231. See supra text accompanying note 20.
232. Cf. Nevada v. Hall, 440 U.S. 410, 433 (1979) (Rehnquist, J., dissenting). In Hall, Justice Rehnquist noted that
when the Constitution is ambiguous or silent on a particular issue, this Court has often relied on notions of constitutional plan¾the implicit ordering of relationships within the federal system necessary to make the Constitution a workable governing charter and to give each provision within that document the full effect intended by the Framers.
Id.
233. During the mid-1980s the Reagan Administration saw increasing limitations on its ability to support the Contra forces in Nicaragua. See Intelligence Authorization Act for Fiscal Year 1984, Pub. L. No. 98-215, § 108, 97 Stat. 1473, 1475; Act of Dec. 21, 1982, Pub.L. No. 97-377, § 793, 93 Stat. 1830, 1865.
234. Lichter v. United States, 334 U.S. 742, 746 (1948) (upholding the Renegotiation Act's authorization for recovery of excess profits by private parties on subcontracts for war goods in time of war); Woods v. Cloyd W. Miller Co., 333 U.S. 138, 144 (1948) (upholding post-war rent controls); Yakus v. United States, 321 U.S. 414, 423 (1944) (upholding World War II price controls).
235. See supra text accompanying note 20.
236. Id.
237. See, e.g., Mela v. Callaway, 378 F. Supp. 25, 28 (S.D.N.Y. 1974) (noting that although the National Guard is 'something of a hybrid under both state and federal control, [it] is basically a state organization').
238. See Derthick, Militia Lobby in the Missile Age¾The Politics of the National Guard, in CHANGING PATTERNS OF MILITARY POLITICS 192 (P. Huntington ed. 1982); cf. Binkin, supra note 92, at 36-37 (detailing the problems with relying on reserve capabilities).
239. See Bator, supra note 143, at 622. Professor Bator has suggested a similar role for the courts in their function as the line drawer between state and federal jurisdiction. Id. He argues that neither state nor federal courts will gain a monopoly over enforcement of constitutional principles, and therefore, the courts should exercise their stewardship over both institutions in a way that optimizes constitutional principles. Id. at 633-34.