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Minnesota To Appeal Judge’s Dismissal of National Guard Lawsuit

August 4, 1987

ST. PAUL, Minn. (AP) _ A federal judge, ruling in a suit filed by Minnesota and backed by 10 other states, said Tuesday that governors have no constitutional authority to withhold consent for National Guard training missions in Central America or elsewhere.

Congress may exercise authority over the training of the National Guard while the Guard is on active federal duty, and must share that authority with the states only when the Guard is not ″employed in the service of the United States,″ U.S. District Judge Donald Alsop said a strongly worded 14-page opinion.

Gov. Rudy Perpich immediately asked Attorney General Hubert H. Humphrey III to appeal, and Humphrey said an expedited hearing before the 8th U.S. Circuit Court of Appeals will be requested.

″We feel very strongly about the states’ rights issue, and that is why we will be appealing ... ,″ said Perpich in a statement. ″This is a clear example of the federal government’s encroaching on state powers that have worked effectively in the past.″

Minnesota attorneys unsuccessfully argued that an amendment sponsored by U.S. Rep. G.V. Montgomery, D-Miss., to a bill signed into law by President Reagan on Nov. 14 unconstitutionally infringed on the right of states to control their militias.

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

Some governors had withheld consent for Guard missions to Central America before Congress acted. Perpich, instead of withholding consent for exercises last January, asked the state attorney general’s office to file the lawsuit.

Humphrey said Minnesota will argue on appeal that the Constitution grants to the states authority to train the National Guard in times of peace. Alsop in his ruling dismissed the state’s argument that Congress had training authority over the Guard only in war.

″There is no basis for this distinction in the language of the Constitution,″ he said.

Joining Minnesota in the lawsuit were Arkansas, Colorado, Hawaii, Iowa, Kansas, Maine, Massachusetts, Ohio, Rhode Island and Vermont. Louisiana and Delaware initially joined the suit but then withdrew.

Humphrey said he expects many of the same states and others to join in Minnesota’s appeal.

Ohio Gov. Richard Celeste, who disapproved of his state’s National Guard units’ participation in preparations for a 1989 training exercise in Honduras, said he was disappointed by the decision but would respect the law.

″The law may be right,″ he said. ″I think the policy is a bad policy to send National Guard troops to train in countries bordering on Nicaragua. I think it’s unnecessary. I think it’s dangerous.″

Bill Roach, spokesman for the Iowa attorney general’s office, said that state would join an appeal. Authorities in Colorado and Arkansas said they had not decided what action to take.

Alsop said Congress created gubernatorial power over Guard assignments as an accommodation to the states and could withdraw the authority without violating the Constitution.

″All authority to provide for the national defense resides in Congress, and state governors have never had, and never could have jurisdiction in this area,″ Alsop said.

The wisdom of deploying Guard troops to Central America for training was not an issue in the case, Alsop said.

Montgomery, in a statement released by his office, said, ″I hope this means the National Guard will now be able to concentrate on the bottom-line issue, which is training. Overseas missions provide real-world training that can’t be duplicated in the United States.″

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