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Montgomery Amendment Portrayed As ‘Power Grab’ By Feds

June 16, 1987

ST. PAUL, Minn. (AP) _ A federal judge is considering arguments over whether Congress committed an unconstitutional ″power grab″ when it revoked governors’ authority to veto foreign National Guard assignments.

Before Congress acted last year, governors had withheld their consent for Guard missions in Central America.

Jack Tunheim, chief deputy attorney general of Minnesota, told U.S. District Judge Donald Alsop on Monday that the congressional action was an attempt to take complete charge of the Guard and to quiet dissent to federal policies.

U.S. Justice Department attorney Vincent Garvey opposed Minnesota’s challenge to the so-called Montgomery Amendment.

Garvey said Congress was exercising its constitutional authority over the federal reserve component of the nation’s armed forces when it revoked governors’ veto power over foreign National Guard assignments.

Minnesota has asked for an injunction barring enforcement of the statute.

The challenge has been joined by 10 other states; eight states have joined the National Guard Association of the United States in opposing Minnesota.

About 35 opponents of President Reagan’s Central America policy and the use of National Guard troops for training missions in that region demonstrated outside the courthouse before the hearing.

The lawsuit contends that the amendment sponsored by Rep. G.V. Montgomery, D-Miss., to a bill signed into law by President Reagan on Nov. 14, unconstitutionally infringes on the right of states to control their militias.

The amendment provides that governors may withhold consent for foreign Guard assignments only when units are needed for local emergencies.

Tunheim said governors’ authority over National Guard training missions was found in the Militia Clause of the U.S. Constitution. But Garvey contended the federal government’s authority over the National Guard is found in the Army Clause, which he said limits the Militia Clause.

Congress created the National Guard in the National Defense Act of 1933 and gave it a dual role as a reserve component of the U.S. Army and Air Force, Garvey said.

In the Armed Forces Reserve Act of 1952, Congress decided not to exercise all of its authority under the Army Clause and gave governors authority to consent to National Guard training missions, he said.

By the Montgomery amendment, Garvey argued, Congress reclaimed its power.

But Tunheim argued that Congress ″until 1986 has respected individual states’ control over National Guard units.″

Congress has power over the Guard during declared wars and federal emergencies but the power for peacetime training can only be transferred to the federal government with the consent of governors, Tunheim said.

Only about a quarter of the states have objected to Guard training missions in Central America, Tunheim said, leaving an ample number of willing states to fill the U.S. Defense Department’s needs.

Joining Minnesota’s challenge are Arkansas, Colorado, Delaware, Hawaii, Iowa, Maine, Massachusetts, Ohio, Rhode Island and Vermont.

Motions by Kansas and Louisiana to withdraw from the Minnesota suit were granted by Alsop.

Alsop allowed Louisiana to join in arguments filed in opposition to Minnesota’s position by the National Guard Association of the United States, which also was joined by Oklahoma, Illinois, Nevada, Wisconsin, Florida, South Carolina and New Mexico.

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