325

STEVENS, J., dissenting

JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting.

Millions of people leave their apartments at about the same time every day carrying an attaché case and heading for a destination known to their neighbors. Usually, however, the neighbors do not know what the briefcase contains. An anonymous neighbor's prediction about somebody's time of departure and probable destination is anything but a reliable basis for assuming that the commuter is in possession of an illegal substance-particularly when the person is not even carrying the attaché case described by the tipster.

The record in this case does not tell us how often respondent drove from the Lynwood Terrace Apartments to Dobey's Motel; for all we know, she may have been a room clerk or telephone operator working the evening shift. It does not tell us whether Officer Davis made any effort to ascertain the informer's identity, his reason for calling, or the basis of his prediction about respondent's destination. Indeed, for all that this record tells us, the tipster may well have been another police officer who had a "hunch" that respondent might have cocaine in her attaché case.

Anybody with enough knowledge about a given person to make her the target of a prank, or to harbor a grudge against her, will certainly be able to formulate a tip about her like the one predicting Vanessa White's excursion. In addition, under the Court's holding, every citizen is subject to being seized and questioned by any officer who is prepared to testify that the warrantless stop was based on an anonymous tip predicting whatever conduct the officer just observed. Fortunately, the vast majority of those in our law enforcement community would not adopt such a practice. But the Fourth Amendment was intended to protect the citizen from the overzealous and unscrupulous officer as well as from those who are conscientious and truthful. This decision makes a mockery of that protection.

I respectfully dissent.

PERPICH, GOVERNOR OF MINNESOTA, ET AL. v. DEPARTMENT OF DEFENSE ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

No. 89-542. Argued March 27, 1990-Decided June 11, 1990 Since 1933, federal law has provided that persons enlisting in a State National Guard unit simultaneously enlist in the National Guard of the United States, a part of the Army. The enlistees retain their status as State Guard members unless and until ordered to active federal duty and revert to state status upon being relieved from federal service. The authority to order the Guard to federal duty was limited to periods of national emergency until 1952, when Congress broadly authorized orders "to active duty or active duty for training" without any emergency requirement, but provided that such orders could not be issued without the consent of the governor of the State concerned. After two State Governors refused to consent to federal training missions abroad for their Guard units, the gubernatorial consent requirement was partially repealed in 1986 by the "Montgomery Amendment," which provides that a governor cannot withhold consent with regard to active duty outside the United States because of any objection to the location, purpose, type, or schedule of such duty. The Governor of Minnesota and the State of Minnesota (hereinafter collectively referred to as the Governor) filed a complaint for injunctive relief, alleging, inter alia, that the Montgomery Amendment had prevented him from withholding his consent to a 1987 federal training mission in Central America for certain members of the State Guard, and that the Amendment violates the Militia Clauses of Article I, §8, of the Constitution, which authorize Congress to provide for (1) calling forth the militia to execute federal law, suppress insurrections, and repel invasions, and (2) organizing, arming, disciplining, and governing such part of the militia as may be employed in the federal service, reserving to the States the appointment of officers and the power to train the militia according to the discipline prescribed by Congress. The District Court rejected the Governor's challenge, holding that the Federal Guard was created pursuant to Congress' Article I, § 8, power to raise and support armies; that the fact that Guard units also have an identity as part of the state militia does not limit Congress' plenary authority to train the units as it sees fit when the Guard is called to active federal service; and that, accordingly, the Constitution neither required the gubernatorial veto nor prohibited its withdrawal. The Court of Appeals affirmed.

Held: Article I's plain language, read as a whole, establishes that Congress may authorize members of the National Guard of the United States to be ordered to active federal duty for purposes of training outside the United States without either the consent of a State Governor or the declaration of a national emergency. Pp. 347-355.

(a) The unchallenged validity of the dual enlistment system means that Guard members lose their state status when called to active federal duty, and, if that duty is a training mission, the training is performed by the Army. During such periods, the second Militia Clause is no longer applicable. Pp. 347-349.

(b) This view of the constitutional issue was presupposed by the Selective Draft Law Cases, 245 U. S. 366, 375, 377, 381-384, which held that the Militia Clauses do not constrain Congress' Article I, § 8, powers to provide for the common defense, raise and support armies, make rules for the governance of the Armed Forces, and enact necessary and proper laws for such purposes, but in fact provide additional grants of power to Congress. Pp. 349-351.

(c) This interpretation merely recognizes the supremacy of federal power in the military affairs area and does not significantly affect either the State's basic training responsibility or its ability to rely on its own Guard in state emergency situations. Pp. 351–352.

(d) In light of the exclusivity of federal power over many aspects of military affairs, see Tarble's Case, 13 Wall. 397, the powers allowed to the States by existing statutes are significant. Pp. 353-354.

(e) Thus, the Montgomery Amendment is not inconsistent with the Militia Clauses. Since the original gubernatorial veto was not constitutionally compelled, its partial repeal by the Amendment is constitutionally valid. Pp. 354-355.

880 F. 2d 11, affirmed.

STEVENS, J., delivered the opinion for a unanimous Court.

John R. Tunheim, Chief Deputy Attorney General of Minnesota, argued the cause for petitioners. With him on the briefs were Hubert H. Humphrey III, Attorney General, and Peter M. Ackerberg, Special Assistant Attorney General.

Solicitor General Starr argued the cause for respondents. With him on the brief were Assistant Attorney General Gerson, Deputy Solicitor General Merrill, James A. Feldman, and Anthony J. Steinmeyer.*

*James M. Shannon, Attorney General of Massachusetts, and Douglas H. Wilkins and Eric Mogilnicki, Assistant Attorneys General, Thomas J. Miller, Attorney General of Iowa, James E. Tierney, Attorney General of

JUSTICE STEVENS delivered the opinion of the Court.

The question presented is whether the Congress may authorize the President to order members of the National Guard to active duty for purposes of training outside the United States during peacetime without either the consent of a State Governor or the declaration of a national emergency.

A gubernatorial consent requirement that had been enacted in 19521 was partially repealed in 1986 by the "Montgomery Amendment," which provides:

Maine, Anthony J. Celebrezze, Jr., Attorney General of Ohio, and Jeffrey Amestoy, Attorney General of Vermont, filed a brief for the State of Iowa et al. as amici curiae urging reversal.

Briefs of amici curiae urging affirmance were filed for the National Guard Association of the United States et al. by Stephen M. Shapiro and Michael K. Kellogg, and by the Attorneys General for their respective States as follows: Don Siegelman of Alabama, Douglas B. Baily of Alaska, Charles M. Oberly III of Delaware, Robert A. Butterworth of Florida, Michael J. Bowers of Georgia, Jim Jones of Idaho, Linley E. Pearson of Indiana, Robert T. Stephan of Kansas, William J. Guste, Jr., of Louisiana, J. Joseph Curran, Jr., of Maryland, Mike Moore of Mississippi, William L. Webster of Missouri, Brian McKay of Nevada, Hal Stratton of New Mexico, Lacy H. Thornburg of North Carolina, Robert H. Henry of Oklahoma, T. Travis Medlock of South Carolina, Roger A. Tellinghuisen of South Dakota, Charles W. Burson of Tennessee, R. Paul Van Dam of Utah, Mary Sue Terry of Virginia, Donald J. Hanaway of Wisconsin, and Joseph B. Meyer of Wyoming; for the Firearms Civil Rights Legal Defense Fund by Stephen P. Halbrook and Robert Dowlut; and for the Washington Legal Foundation et al. by Daniel J. Popeo, Paul D. Kamenar, and John C. Scully.

1 The Armed Forces Reserve Act of 1952, provided in part: "Sec. 101. When used in this Act

"(c) 'Active duty for training' means full-time duty in the active military service of the United States for training purposes." 66 Stat. 481.

"[Section 233] (c) At any time, any unit and the members thereof, or any member not assigned to a unit organized for the purpose of serving as such, in an active status in any reserve component may, by competent authority, be ordered to and required to perform active duty or active duty for training, without his consent, for not to exceed fifteen days annually: Provided, That units and members of the National Guard of the United States or the

"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."2

In this litigation the Governor of Minnesota and the State of Minnesota (hereinafter collectively referred to as the Governor), challenge the constitutionality of that amendment. The Governor contends that it violates the Militia Clauses of the Constitution.3

Air National Guard of the United States shall not be ordered to or required to serve on active duty in the service of the United States pursuant to this subsection without the consent of the Governor of the State or Territory concerned, or the Commanding General of the District of Columbia National Guard.

"(d) A member of a reserve component may, by competent authority, be ordered to active duty or active duty for training at any time with his consent: Provided, That no member of the National Guard of the United States or Air National Guard of the United States shall be so ordered without the consent of the Governor or other appropriate authority of the State, Territory, or District of Columbia concerned." Id., at 490. These provisions, as amended, are now codified at 10 U. S. C. §§ 672(b) and 672(d).

2 The Montgomery Amendment was enacted as § 522 of the National Defense Authorization Act for Fiscal Year 1987, Pub. L. 99-661, § 522, 100 Stat. 3871.

3

Two clauses of Article I-clauses 15 and 16 of § 8-are commonly described as "the Militia Clause" or "the Militia Clauses." They provide: "The Congress shall have Power . . .

"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

"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 the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."