Tuesday, September 26, 2023
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Former Guardsmen Lose Bid for Reinstatement

(CN) - Four former Army National Guardsmen lost their bid to force the federal government to order their reinstatement after they were honorably discharged. The D.C. Circuit backed the government's view that the Constitution reserves that authority for the states.

The former civilian technicians in the Puerto Rico Army National Guard (PRANG) and two labor unions claimed the government can order the reinstatement of guardsmen who were discharged in violation of federal regulations.

The guardsmen were allegedly discharged from PRANG without proper notification or a hearing. As a result, they automatically lost their civilian technician jobs.

The Army Board for Correction of Military Records agreed that the discharges were incorrect and unjust, but said it lacked authority to order the guardsmen's reinstated. Instead, the board recommended that they be reinstated with all pay, allowance and retirement benefits.

When PRANG declined to reinstate them, the guardsmen sued, claiming the board's recommendation was "based on an erroneous belief of lack of authority."

They said federal law plainly authorizes the president to "govern" and "issue orders" to a state National Guard, including the power to enforce federal regulations on discharge procedures.

The government argued that its power to "govern" merely allows it to approve regulations and orders that apply generally to all states. Control of a National Guard's day-to-day operations falls to the states, it argued.

The federal appeals court in Washington, D.C., cited the Constitution's militia clause in backing the government's interpretation.

That clause gives Congress the power to organize, arm and discipline the militia when it's needed by the United States, but reserves for the states the appointment of officers and training.

"The militia in this clause is the National Guard, and the clause expressly contemplates the reservation of powers to the states," Judge Judith Rogers wrote.

"Moreover, it appears Congress has implicitly ratified the United States 'policy and practice' of refusing to issue orders of individual reinstatement to a state National Guard."

The three-judge panel upheld the lower court's ruling for the United States.

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