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PERPICH v. U.S. DEPT. OF DEFENSE

No. 87-5345.

880 F.2d 11 (1989)

Rudy PERPICH, Governor of the State of Minnesota; State of Minnesota, by its Attorney General Hubert H. Humphrey, III, Appellants, v. UNITED STATES DEPARTMENT OF DEFENSE, United States Department of Air Force, United States Department of Army, National Guard Bureau, Caspar W. Weinberger, Secretary of Defense; John O. Marsh, Jr., Secretary of the Army; Edward C. Aldridge, Secretary of the Air Force; Lt. Gen. Herbert R. Temple, Jr., National Guard Bureau, Appellees. Commonwealth of Massachusetts, Amicus Curiae, U.S. National Guard Assn., Amicus Curiae.

United States Court of Appeals, Eighth Circuit.

Decided June 28, 1989.

Attorney(s) appearing for the Case

John R. Tunheim, St. Paul, Minn., for appellants.

John Bolton, Bethesda, Md., for appellees.

Before McMILLIAN, Circuit Judge, HEANEY, Senior Circuit Judge, and ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL and BEAM, Circuit Judges, EN BANC.

MAGILL, Circuit Judge.

In this opinion, we address a challenge to the constitutionality of the Montgomery Amendment, which restricts the power of state governors to withhold consent to federal deployment of the National Guard of the United States. We hold that the Constitution does not require gubernatorial consent to active duty for training of the National Guard of the United States. Based on the statutory system of dual enlistment and the relationship between the...

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