A base-closing brawl
Governors say they'll fight to save Air National Guard units
Just when it seemed the long fight over the Pentagon's latest round of base closings and realignments was over, a handful of states are hoping to make a last stand in federal court.
The Base Realignment and Closure Commission's final recommendation to close 22 major military bases and realign an additional 33 breezed through the House of Representatives late last month by a margin of 324 to 85. And with no action on the legislation scheduled in the Senate, the recommendation automatically becomes law this week.
While the legislation marks the formal end of base closings for the foreseeable future, some states see it as only the beginning of a legal battle to maintain control of their Air National Guard forces. "The principle is rooted in . . . the [Second Amendment] rights of states to maintain militias," says Richard Blumenthal, attorney general for Connecticut, which stands to lose its entire squadron of A-10 fighter planes. His case rests on a 1933 federal law that says that any changes in the organization or allotment of state Guard units must have the governor's OK. Nevertheless, the states don't control the Guard's purse strings; the Pentagon does. And the Guard answers to the Pentagon in times of war.
The wrangling started back in August, when the BRAC Commission's final recommendation to streamline military forces included the consolidation of some Air National Guard units across states. A number of those losing planes quickly filed federal lawsuits. In some instances, judges said nothing could be done until the BRAC proposal actually became law--saying, in effect, no harm, no foul. As of this week, expect to hear cries of foul aplenty.
Plane speaking. Pennsylvania, Illinois, Connecticut, and possibly Missouri are poised to push ahead with suits aimed at keeping their National Guard aircraft. Illinois, like Missouri, lost its initial case when federal judges ruled that the lawsuit was premature. Now, Gov. Rod Blagojevich has vowed to continue the fight, calling the BRAC decision to remove all 17 F-16 fighters in Springfield "the wrong recommendation, at the wrong time, for the wrong reasons, on top of being illegal." Missouri, meanwhile, is mulling over a return to court to protect its 15 F-15 Eagles stationed in St. Louis. Connecticut, whose case had stalled in court, now expects to move forward aggressively. Until now, the only state succeeding in federal court has been Pennsylvania, where Gov. Ed Rendell convinced a federal judge that, as commander of all Guard units, he must give his consent before the Pentagon can move 12 planes out of the Willow Grove National Air Station for reassignment in Arizona. The case is pending on appeal.
Plenty of states have sued in the past to keep bases open for active duty personnel--and quickly lost--but experts say this battle for Guard units enters uncharted territory. It could go as far as the Supreme Court, which would very likely have to settle Second Amendment questions, among others. Still, if history bears out, the chances of states wresting control of military units from the Pentagon are "darn close to zero," says Loren Thompson, a defense analyst with the Lexington Institute. One thing is clear: Neither side is ready to raise the white flag.
This story appears in the November 14, 2005 print edition of U.S. News & World Report.
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