The 14-page opinion, released Friday, said the Defense Department can close or realign a National Guard base without the consent of the governor, contradicting one of the main arguments put forth by state lawmakers and Guard leaders.
"It would have been a surprise if they ruled any differently," said Maj. Gen. Frank Vavala, Delaware's adjutant general and a vocal opponent of the Pentagon's recommendations. "I figured [the Justice Department] would side with the Pentagon on this."
Vavala, who also serves as vice president of the Adjutants General Association of the United States, said the Guard will continue to meet with the independent commission reviewing the Pentagon's recommendations.
"We particularly are utilizing ... congressional delegations in every state to contact the individual commissioners and continue to reiterate our cases," Vavala said. If the commission upholds the Pentagon's Air Guard recommendations, Delaware will lose its fleet of C-130s, grounding the Air Guard in that state.
The Air Guard recommendations -- which would strip all aircraft from nearly two dozen units -- has become the most contested issue in this base-closure round. At least three states have filed lawsuits, arguing that altering the state-run units would be unconstitutional and infringe on a governor's ability to organize a militia. A lawyer for the commission came to a similar conclusion in a legal brief written last month. The Justice Department, however, noted that the Guard functions both as a state militia and as a reserve component of the active duty military.
"The modern National Guard descends from efforts that Congress began in the early twentieth century both to revive the long-dormant 'Militia' described in the Constitution and, spurred by World War I, to make it an effective complement to the regular Armed Forces," the document states.
In addition, the Justice Department concluded that the Pentagon can move aircraft during base-closure rounds. The scope of the Base Closure Act, Justice Department officials found, is broad, as is the definition of realignment, which includes any action that reduces or relocates military functions. Guard leaders have argued that moving aircraft is a programmatic decision, and as such should not be made part of base closures.
"There are programmatic, force-structure recommendations in BRAC, which we feel are illegal and shouldn't be there," Vavala said.
BRAC Commissioner Harold Gehman last week said the programmatic argument was just one small piece of the overall debate and not the deciding factor. The commission will decide on their own base-closure recommendations next week and forward their list to the president by Sept. 8. Guard officials plan to work until the last minute to save the units.
"This is another legal opinion. It still has to go to court and a judge can decide," Vavala said.