US Constitution provides Vermont with authority to stop the F-35 training flights in a city

The discipline prescribed by Congress requires Vermont to do so.

The US Constitution expressly provides Vermont with authority over the training of its national guard. The US Supreme Court twice confirmed that authority. Thus, Vermont has the authority to stop the F-35 training flights in a city.

Under the plan of the US constitution, powers are divided four ways to prevent tyranny. Certain powers are separated among each of the three federal branches of the federal government, each branch assigned specific powers. Part of the plan in the constitution further divides powers, assigning certain ones to the federal branches and expressly reserving a few to the states. Under the 10th amendment all powers not expressly delegated were reserved to the states or to the people. The founders’ purpose in dividing powers was to prevent such concentration of power in any one part of the government that it could then threaten the rights of the citizens.

This plan of the constitution depends on each of the separate units of government, and the people, checking and balancing. Jealously guarding against encroachment into its assigned domain. Any one of them allowing encroachment into its powers would inherently concentrate powers in another, undermining the separation of powers and federalism plan of the constitution. As the US Supreme Court said:

The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed. (Marbury v. Madison, 5 U.S. 137 (1803)).

Because they were concerned about tyranny, the founders divided powers over the armed forces. In particular, the militia clause assigns certain specific powers and responsibilities over the state militias (now called the state national guard), to congress while it also expressly reserves other powers to the states:

The Congress shall have Power . . . To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress (article I section 8).

Just 31 years after ratification of the constitution, the US Supreme Court held: “Congress has power to provide for organizing, arming, and disciplining them, and this power being unlimited, except in the two particulars of officering and training them, according to the discipline to be prescribed by Congress.” Houston v. Moore, 18 U.S. 1 (1820). Thus, the court confirmed the federal powers over the militia to be limited by the two authorities reserved to the states.

One result of such an express reservation of power to the states is that an article in the Air Force Law Review puts it this way: “It is long-settled law that the governor of each state has almost unbridled power over its militia.” Air Force Law Review, John F. Romano, v. 56, p. 245 (2005).

Respect for state control of its own militia’s officers and training is deeply rooted in the armed forces and finds expression in multiple ways. In particular, it means that while the decision to arm the Vermont National Guard with F-35 jets was federal, the decision whether or not to use the F-35 jets for training, and if so, when, where, and how to use them for training the Vermont National Guard, belongs entirely to the state, so long as the training is according to the discipline prescribed by Congress.

In 1990 the Supreme Court again confirmed the two state authorities over the militia and further held, “Finally, although the appointment of officers ‘and the Authority of training the Militia’ is reserved to the States respectively, that limitation is, in turn, limited by the words ‘according to the discipline prescribed by Congress.’” Perpich v. Department of Defense, 496 U.S. 334 (1990).

“The discipline prescribed by Congress”

The limitation on Vermont state authority over the training of the Vermont National Guard, “according to the discipline prescribed by Congress,” confirmed by the court in no way provides the state with authority to cause pain, injury or distress to civilians, to threaten their bodily integrity, to diminish the quiet enjoyment of their homes, or to damage their property or degrade their property values with F-35 training flights in a city.

Rather, the discipline prescribed by Congress includes provisions both to keep good order and to protect civilians from abuses by military forces. Regarding good order, the discipline includes federal laws specifically about organization, personnel, courts martial, drill and field exercises, uniforms, arms, and equipment, and many other aspects, all included in 32 U.S.C. §§ 101-908. The discipline prescribed by Congress to protect civilians from military forces and military operations includes federal criminal laws in the Uniform Code of Military Justice (UCMJ) and the US War Crimes Act [18 U.S. Code § 2441].

The discipline to protect civilians from military operations also includes the discipline provided in international treaties to which congress made the US a party, including the 1907 Hague Convention IV, ratified after 2/3 of the US Senate gave its advice and consent in 1909, the 1949 4th Geneva Convention, ratified by the Senate in 1955, and the 1966 International Covenant on Civil and Political Rights (ICCPR), ratified by the Senate in 1992.

As adopted or ratified by congress, all these instruments of discipline are prescribed for all US armed forces and, under the militia clause, for all state militias.

The discipline prescribed by congress governing military forces and military operations codified in those criminal laws and treaty provisions is more protective of civilians and civilian property than congress otherwise generally prescribes for the protection of civilians from non-military government actions. The discipline protects not just US civilians, but all civilians subject to US military operations, including enemy nationals living in enemy territory.

So-called collateral damage to civilians is allowed under international law only under specific circumstances during combat when military necessity drives a military attack, when the damage to civilians or civilian property is not disproportionate to the military advantage anticipated from the attack, and when feasible precautions to protect civilians have been taken. Training operations in a city in Vermont is not one of those circumstances.

Under the US and Vermont constitutions and under Vermont law 20 V.S.A. § 361, the Vermont National Guard is required to adhere its training operations to this discipline: The Guard is required to conduct its training in a way and at a location that protects each and every Vermonter and all civilian property.

Instead, under orders from the governor, the adjutant general, and the wing commander, the Guard is conducting hundreds of F-35 training flights each month amidst densely populated cities where its extreme noise is daily producing mass pain, injury, and distress to thousands of Vermont families, in blatant violation of the discipline prescribed by Congress.

Under the discipline prescribed by congress, the F-35 training flights in a city are illegal and unconstitutional and must stop now. The governor or the legislature must immediately use the state’s authority over Vermont National Guard training to put a stop to the F-35 training flights from the airport amidst the densely populated Chamberlin School neighborhood in the City of South Burlington and low over the Cities of Winooski and Burlington, and the Town of Williston.