Limiting State Involvement in Foreign Policy: The Governors and the National Guard in Perpich v. Defense

Abstract

The National Guard is a largely successful intergovernmental institution in the United States. In September 1989, however, the governor of Minnesota asked the U.S. Supreme Court to strike down federal legislation that gives the Department of Defense authority to assign state National Guard units to active-duty overseas training without the consent of the governor. In Perpich (1990), the Supreme Court upheld the Montgomery Amendment allowing the president to order members of a state's Guard to active dutyfor training outside the United States even during peacetime without either the consent of the governor or the declaration of a national emergency. The Court did not address the fact that the president has ample authority under other statutesfor calling up the National Guard. The decision dealt only with the authorityfor calling Guard unitsfor two weeks of active-duty training. The practical effect of this interpretation of the militia clauses of the U.S. Constitution is to reduce the states' authority for training to, at best, a ministerialfunction, even when Guard units are called up by the secretary ofdefense only for the purpose of training.