Scott,
I really do not know how to put it into words simple enough for you to understand. However the Court's ruling on this was unmistakably clear:
" 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. 496 U. S. 347-355.
"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 During such periods, the second Militia Clause is no longer applicable."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. 496 U. S. 347-349.
" The District Judge rejected the Governor's challenge. He explained that the National Guard consists of "two overlapping, but legally distinct, organizations. Congress, under its constitutional authority to 'raise and support armies' has created the National Guard of the United States, a federal organization comprised of state national guard units and their members. " 666 F.Supp. 1319, 1320 (Minn.1987). [Footnote 4] The fact that these units also maintain an identity as Page 496 U. S. 339 state national guards, part of the militia described in Art. I, § 8, of the Constitution, does not limit Congress' plenary authority to train the Guard "as it sees fit when the Guard is called to active federal service." Id. at 1324. He therefore concluded that "the gubernatorial veto found in §§ 672(b) and 672(d) is not constitutionally required. Having created the gubernatorial veto as an accommodation to the states, rather than pursuant to a constitutional mandate, the Congress may withdraw the veto without violating the Constitution."
In answer to Anita's statement questioning the receipt of dual notifications from both the State and the Federal activation the court also addressed this issue. " Congress has by distinct statutes provided for activating the National Guard of the United States and for calling forth the militia, including the National Guards of the various States. See 10 U.S.C. §§ 672-675 (authorizing executive officials to order reserve forces, including the National Guard of the United States and the Air National Guard of the United States, to active duty); 10 U.S.C. §§ 331-333 (authorizing executive officials to call forth the militia of the States); 10 U.S.C. §§ 35OO, 8500 (authorizing executive officials to call forth the National Guards of the various States). When the National Guard units of the States are called forth, the orders "shall be issued through the governors of the States." 10 U.S.C. § 3500."
" The unchallenged validity of the dual enlistment system means that the members of the National Guard of Minnesota who are ordered into federal service with the National Guard of the United States lose their status as members of the State militia during their period of active duty. If that duty is a training mission, the training is performed by the Army in which the trainee is serving, not by the militia from which the member has been temporarily disassociated."
"Congress has provided by statute that, in addition to its National Guard, a State may provide and maintain at its own expense a defense force that is exempt from being drafted into the Armed Forces of the United States. See 32 U.S.C. § 109(c). As long as that provision remains in effect, there is no basis for an argument that the federal statutory scheme deprives Minnesota of any constitutional entitlement to a separate militia of its own. [Footnote 25]
You have cited a portion of the footnote in question illustrating an example of when a gubernatorial veto might be exercised. You have omitted the portion of the footnote containing the Governors concessions that it is of little use, and subject to federal accommodation. The Governor contends that the residual veto power is of little use. He predicates this argument, however, on a claim that the federal training program has so minimal an impact upon the State Guard that the veto is never necessary…To suggest that a governor will ever be able to withhold consent under the Montgomery Amendment assumes (1) local emergencies can be adequately predicted in advance, and (2) a governor can persuade federal authorities that National Guard members designated for training are needed for state purposes when the overwhelming majority of the National Guard remains at home." [Footnote 24
The above citations are not my words, but rather the words of the court. Since the gubernatorial veto of which you speak is a statutory accommodation and not a constitutional right, the accommodation may be withdrawn by Congress at will. While the circumstances may give rise to a gubernatorial veto, it is still subject to federal approval, not a matter of right and there is no guaranty of securing agreement of the federal government.
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