The Defense Base Closure And Realignment Act Of 1990 Supersedes The Provisions Of An Earlier Statute Granting A State's Governor Veto Power Over Redeployment Of A National Guard Unit
QUINN v. GATES (July 29, 2009)
Congress passed the Defense Base Closure and Realignment Act of 1990 in order to prevent local interests from outweighing national needs with respect to base closures. The Act creates a Commission that recommends changes and disbands once it delivers its report to the President. The President can accept or reject the recommendations, but only in their entirety. If the President accepts the recommendations, they are forwarded to Congress. Congress can allow the recommendations to proceed, in their entirety, or they can reject the recommendations, also in their entirety. The all-or-none approach was a key component of the legislation. In 2005, a Commission made recommendations that were accepted by the President and Congress. One recommendation was to move fifteen F-16 jets assigned to the Illinois Air National Guard to a base in Indiana. The Governor of Illinois brought suit to enjoin the recommendations, contending that federal law granted veto power to a state's governor before any changes could be made to a unit of the National Guard. The district court dismissed the suit for a third time (the first two were reversed by the Seventh Circuit). The Governor appeals.
In their opinion, Chief Judge Easterbrook and Judges Rovner and Sykes affirmed. The question on appeal was whether the Act trumped other limitations on the President's power to change National Guard assignments. The Court, citing Justice Souter's concurrence in Dalton, concluded that the Act gave the President unfettered discretion to accept or reject a Commission’s recommendations. The end result, however, had to be a wholesale acceptance or rejection. Any attempt to cherry pick is forbidden by the Act. The Court concluded that the Act provided an independent means for the President to realign national resources and supersedes any prior statute that is incompatible with its premise. The Court emphasized that it was not holding that it lacked subject-matter jurisdiction -- only that the Governor loses on the merits.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select