Pennsylvania governor sues Pentagon over base cuts

[maddezmom]

WASHINGTON (Reuters) - Pennsylvania's governor and two U.S. senators sued the Pentagon on Monday to prevent deactivation of a Pennsylvania Air National Guard unit in a bid to save a military base from closure.

In what is being viewed as the first lawsuit of its kind, Gov. Ed Rendell, joined by Pennsylvania's Republican Sens. Arlen Specter and Rick Santorum, is invoking the "militia clause" of the U.S. Constitution to prevent de-activation of the national guard's 111th Fighter Wing at the Willow Grove Naval Air Station Joint Reserve Base.

The base near Philadelphia is among 837 facilities the Defense Department has earmarked for closure or cutbacks in the first round of domestic base reductions in a decade.

The suit, filed in U.S. District Court in Philadelphia, names Defense Secretary Donald Rumsfeld as a defendant. It claims that federal law prohibits the changing, relocation or withdrawal of a National Guard unit without the approval of the governor of the state in which the unit is located.

more:http://news.yahoo.com/news?tmpl=story&u=/nm/20050711/pl_nm/arms_bases_dc_1

[gratuitous]

1. Simple expedient

If the Republican governor and the Republican senators of Pennsylvania want the bases to stay open under the militia clause, then have the people of Pennsylvania pay for them.

I'll bet they'd drop their lawsuit like a hot potato if that was the proposal.

[HawkerHurricane]

2. That's an option now, no lawsuit needed.

Part of the 'base closure' process includes where the states can keep them open on thier own dime.

[brentspeak]

3. Ed Rendell is a Democrat (n/t)

[gratuitous]

8. Whoops! And I *knew* that

Sorry for the screw-up, Gov. Rendell. I wouldn't call the neighbor's dog who craps in my yard a Republican.

[Penndems]

4. Governor Ed Rendell, Mr. Brass Conjones Himself

Lord, I love that man. It makes me proud to have worked on his campaign.

He's going into his reelection campaign with nine million dollars in the bank. Can't wait to see him back in the Governor's Mansion in Harrisburg.

[Eurobabe]

5. Eddie, Eddie, Eddie!

I lived in Philly for 20 yrs., and Rendell was the best mayor Philly ever had.

[Penndems]

6. He has a love affair going with that great city

And it goes both ways - they love him, too!

When I was on his campaign, I had the opportunity to speak with a few Philadelphians. NOT ONE PERSON had anything negative to say about the man. As one gentleman (a lawyer), succiently put it: "Ed don't bullshit. He does what he says he's gonna do."

Pennsylvanians would be crazy NOT to reelect him, IMHO.

[Igel]

7. They may have a point. But it's in the interpretation.

Of course.

34 USC 104(a-e) (esp. note (c):
"(a) Each State or Territory and Puerto Rico may fix the location of the units and headquarters of its National Guard.
(b) Except as otherwise specifically provided in this title, the organization of the Army National Guard and the composition of its units shall be the same as those prescribed for the Army, subject, in time of peace, to such general exceptions as the Secretary of the Army may authorize; and the organization of the Air National Guard and the composition of its units shall be the same as those prescribed for the Air Force, subject, in time of peace, to such general exceptions as the Secretary of the Air Force may authorize.
(c) To secure a force the units of which when combined will form complete higher tactical units, the President may designate the units of the National Guard, by branch of the Army or organization of the Air Force, to be maintained in each State and Territory, Puerto Rico, and the District of Columbia. However, no change in the branch, organization, or allotment of a unit located entirely within a State may be made without the approval of its governor.
(d) To maintain appropriate organization and to assist in training and instruction, the President may assign the National Guard to divisions, wings, and other tactical units, and may detail commissioned officers of the National Guard or of the Regular Army or the Regular Air Force, as the case may be, to command those units. However, the commanding officer of a unit organized wholly within a State or Territory, Puerto Rico, or the District of Columbia may not be displaced under this subsection."

The appropriate question being, is the italicized part applicable here, and does a wing constitute a 'unit'? And, what does it mean for a unit to be "located entirely within a state"?

Just wondering. Lawyers?

[happyslug]

9. How has this been handled in the past??

That is the real question. Remember we are NOT talking about constitutional law, but statutory law, what does this statute mean? Is a "wing" a "Unit" or is a "Wing" part of a larger "Unit". The best evidence of this is how has the Federal Government handled wings in the past? If it has treated it as a "Unit" than this law kicks, in but if it has not than it does not.

Now what I mean by how it has been handled in the past is how was this type of unit handled administratively? I doubt there is any cases on this point, so the issue will depend on administrative practice of the Air Force since 1947 (When the Air Force became separate from the US Army).

Side note, as a general rule a wing is an independent unit like an old fashioned Army Regiment. Today independent Regiments are rare, mostly their are brigaded together under a Divisional Command (OR independent Brigade), thus an Air force wing is much like Army Brigade or Division and as such a "Unit" within this statute. That is my opinion but the key will be the past practices of the Air Force as to "Wings" whether "Wings" are units or sub-units.

Further reading of the Statute means looking at subsection (d) which list wing with Division, thus a "unit". Please note while the Federal Government may not be able to abolish the unit under this section, there is nothing in this section saying that if the Governor does object that the Federal Government has to PAY to keep this unit. Thus Rendall may win the right to veto the elimination of this unit, but then be told the Federal Government has no obligation to PAY for the unit (i.e. if Pennsylvania wants this unit it can pay for the unit).


Actual Statute is 34 USC § 104.
Units: location; organization; command

(a) Each State or Territory and Puerto Rico may fix the location of the units and headquarters of its National Guard.

(b) Except as otherwise specifically provided in this title <32 USCS §§ 101 et seq.>, the organization of the Army National Guard and the composition of its units shall be the same as those prescribed for the Army, subject, in time of peace, to such general exceptions as the Secretary of the Army may authorize; and the organization of the Air National Guard and the composition of its units shall be the same as those prescribed for the Air Force, subject, in time of peace, to such general exceptions as the Secretary of the Air Force may authorize.

(c) To secure a force the units of which when combined will form complete higher tactical units, the President may designate the units of the National Guard, by branch of the Army or organization of the Air Force, to be maintained in each State and Territory, Puerto Rico, and the District of Columbia. However, no change in the branch, organization, or allotment of a unit located entirely within a State may be made without the approval of its governor.

(d) To maintain appropriate organization and to assist in training and instruction, the President may assign the National Guard to divisions, wings, and other tactical units, and may detail commissioned officers of the National Guard or of the Regular Army or the Regular Air Force, as the case may be, to command those units. However, the commanding officer of a unit organized wholly within a State or Territory, Puerto Rico, or the District of Columbia may not be displaced under this subsection.

(e) To insure prompt mobilization of the National Guard in time of war or other emergency, the President may, in time of peace, detail a commissioned officer of the Regular Army to perform the duties of chief of staff for each fully organized division of the Army National Guard, and a commissioned officer of the Regular Air Force to perform the duties of the corresponding position for each fully organized wing of the Air National Guard.

(f) Unless the President consents--
(1) an organization of the National Guard whose members have received compensation from the United States as members of the National Guard may not be disbanded; and
(2) the actual strength of such an organization in commissioned officers or enlisted members may not be reduced below the minimum strength prescribed by the President.