Unconstitutional! Preemption and the Supremacy and Militia Clauses

This blog post is part of a series where I will discuss some appellate opinions from cases I argued during the last thirty years at the West Virginia Supreme Court of Appeals.

One of my most memorable cases was in the early 2000s. A young man came into my office after missing some drills required by his service in the National Guard. Even in those days, I firmly believed in working things out. 

We worked out an agreement with his supervisors that he would take his summer vacation and make up the missed drills.

Despite making up the missed drills, the Prosecutor’s office continued prosecuting the young man. Like many young men, he wanted to make it right and avoid being incarcerated and having the stigma of a criminal conviction.  

When the Prosecutor refused to dismiss any charges, we filed an “extraordinary writ” with the circuit court to prohibit the state from prosecuting the young client. The circuit judge agreed with my argument that the code section relied upon by the National Guard was unconstitutional and prohibited the state from prosecuting him. The prosecuting attorney appealed the decision, and we argued the case before the West Virginia Supreme Court of Appeals.

One of the reasons this case is memorable is because of my very earnest and dedicated client. The other is that I worked for a law professor who taught Constitutional Law during law school and had always hoped to be able to practice in this area. My argument was based on the U.S. Constitution, specifically the Supremacy Clause Article VI, Clause 2 and the Militia Clause, Article I, Section 8. The Supremacy Clause says that the Constitution and federal laws passed under the Constitution are the supreme law of the land. The Militia Clause allows Congress to organize and discipline the Militia.  

When West Virginia enacted a statute providing a discipline system inconsistent with federal law, the statute was unconstitutional. It makes logical sense. Under the law, as West Virginia had designed it, the state could incarcerate guardsmen who the federal law was trying to deploy for national security. In 2002, this was a huge issue.

he West Virginia Supreme Court agreed, and the West Virginia Code section was found to conflict with the militia clause of Article I, Section 8 of the United States Constitution. In West Virginia, numbered paragraphs, called Syllabus Points, appear at the beginning of each opinion and are considered binding. In this case, Syllabus Point 3 read: The provisions of West Virginia Code § 15-1E-87(b) (1998) (Repl. Vol. 2000) are unconstitutional because they violate the militia clauses of Article I, Section 8 of the United States Constitution.

The court ruling is located here  http://www.courtswv.gov/supreme-court/docs/fall2002/30691.pdf. The full opinion may be viewed  here. I am forever grateful to attorney Phillip Cave who helped me to unravel this difficult issue.