Ill. Governor Loses Bid to Block Fighter Jet Transfer

(CN) - Illinois Gov. Patrick Quinn lost a tug-of-war with the federal government over where to keep 15 fighter jets. The 7th Circuit dismissed the governor's attempt to block the military from transferring the F-16 jets from Illinois to Indiana.

The transfer was approved in 2005, under the Defense Base Closure and Realignment Act of 1990. Congress passed the Act to ease military base closures and consolidations, which are never popular with local constituents and their congressional delegations.

The Act creates a temporary commission to recommend changes that would save money and boost national security. The president and the Congress may either approve the plan or reject it, but they cannot amend it, a design that forces the government to make an all-or-none decision.

The most recent round of base consolidations in 2005 included a plan to transfer 15 jets from a base in Springfield, Ill. - where they were assigned to a wing of the Illinois Air National Guard - to a base in Fort Wayne, Ind.

Gov. Quinn said the plan illegally authorized redeployment without his permission. He cited a federal law requiring gubernatorial consent to any "changes in the branch, organization, or allotment" of a National Guard unit that's been placed in a state by the president.

The district court denied the governor's request twice, once for lack of standing and once for lack of jurisdiction. On each appeal, the three-judge panel in Chicago remanded.

In the third round, the district court dismissed the case on the ground that judges can't review the government's implementation of an approved plan. The federal judge cited Justice Souter's concurring opinion in Dalton v. Specter, in which the Supreme Court unanimously refused to block closure of the Philadelphia Naval Shipyard.

Justice Souter argued that the Realignment Act grants the president "unfettered discretion to accept the Commission's base-closing report or to reject it, for a good reason, a bad reason, or no reason."

The 7th Circuit panel agreed.

"What [Souter] concluded - and what we, too, conclude - is that the Realignment Act supersedes any statute that is incompatible with the Act's all-or-none feature," Chief Judge Easterbrook wrote.

The governor invoked his redeployment veto power "for the declared purpose of excluding one base from the commission's program, while bases in other states are closed," Easterbrook explained.

"The Realignment Act forbids that sort of outcome."

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