In early August, President Donald Trump activated and deployed the D.C. National Guard to the streets of Washington, D.C., purportedly to crack down on the city’s crime. Now, three Republican governors have announced their intention to also deploy Guard troops to the nation’s capital, a predominantly Democratic city. Although there are still more questions than answers concerning the scope, mission, and length of each National Guard unit’s deployment (as well as their coordination with other federal law enforcement agencies), I want to flag a few important questions and provide context for what we know so far. The answers to these questions go beyond the current situation in D.C., as the president’s reliance on untested legal authorities, combined with his willingness to use the military for myriad domestic missions in D.C. and elsewhere, may well foreshadow broader use of the military in other American cities.
What are the relevant legal authorities underpinning the National Guard deployments?
There are two distinct authorities relevant for understanding the activation and deployment of the D.C. National Guard and the three out-of-state National Guard units to D.C.
The D.C. National Guard operates under unique authorities that are distinct from the 53 other National Guard units (50 states and three territories). Unlike other states and territories whose National Guard falls under the respective state governor for day-to-day operations, the District of Columbia is neither a state nor a territory. The president—via the secretary of defense and secretary of the Army—has much broader authority over the D.C. National Guard. As Elizabeth Goitein of the Brennan Center notes, the D.C. National Guard is the only National Guard organization that is always under the president’s command. So, the president can take control of the D.C. National Guard without first invoking the Insurrection Act, a law passed in 1807 that allows the president to use the active-duty military to perform law enforcement duties inside the United States under certain circumstances. It serves as a statutory key for the president to unlock authorities over both the National Guard and Title 10 federal military forces.
Now, three outside National Guard units are also being deployed to the nation’s capital from West Virginia, Ohio, and South Carolina, for a total of four National Guard units in addition to federal law enforcement officers operating in D.C.
How will these myriad forces be coordinated and integrated? Unclear. Call it the fog of law enforcement.
Indeed, although it is unclear exactly what legal authority these three outside National Guard units are operating under, I suspect the Trump administration is running the same playbook it used in 2020. Then, Attorney General William Barr relied upon a somewhat untested legal authority— 32 USC 502(f)—to request outside National Guard units to protect federal assets in D.C. during protests over George Floyd’s death. This legal authority authorizes National Guard members to be called up to perform “other duty” in “support of operations or missions undertaken by the member’s unit at the request of the President or Secretary of Defense.” Congress amended 502(f) in the aftermath of Hurricane Katrina to simplify the process by which National Guard forces could perform disaster response and other domestic operational missions. There is no mention in the legislative history or statute’s text that Congress envisions 502(f) as a mechanism for the National Guard to conduct law enforcement in other jurisdictions.
Eleven governors ultimately provided the president with Guard troops in 2020. At the time, the invocation of 502(f) authority showcased the Trump administration’s willingness to pursue a maximalist legal approach and use untested and somewhat obscure legal tools to accomplish the president’s goals.
What if D.C. Mayor Muriel Bowser objects to the presence of outside National Guard units?
Once again, the summer of 2020 provides guidance. In a letter to Barr, Bowser requested that he “withdraw all extraordinary federal law enforcement and military presence from Washington, D.C.,” stating that these outside units were operating outside of clear chains of command, only leading to confusion.
In a move that surprised many, Barr pointed to statutory authority found at 32 U.S.C. § 502(f) as the legal basis for the deployment. The 4,000 National Guard forces stayed in D.C. for just one week in early June until Trump order them to withdraw. He said the city was now “under perfect control.” A federal court never ruled on the legality of using 502(f) to deploy National Guard forces in 2020, so there remains no legal precedent or guardrails to guide the current use of out-of-state Guard forces in D.C.
Outside the National Guard context, federal judges have shown an initial willingness to quickly address Trump’s decision to take over the D.C. police department to enforce federal immigration laws. Judge Ana Reyes recently ruled against the Trump administration’s appointment of a new head of the Metropolitan Police Authority, but she kept the door open for Trump to commandeer D.C. police officers to enforce immigration laws. It remains unclear how and whether the D.C. attorney general will respond to the deployment of outside National Guard units in the nation’s capital or if he’ll sue the president in federal court. But any forthcoming legal challenge will center on the scope of 502(f)’s authority—truly a case of first impression, meaning the courts have no established precedent to guide their decision.
What can the National Guard units do while in D.C.?
The key question is whether the Posse Comitatus Act (PCA)—an 1878 law that prohibits the military from “executing the laws” (i.e., searching, seizing, detaining, and arresting people)—applies to any National Guard unit operating in D.C. As a legal baseline, each member of the National Guard has the inherent right of self-defense. And normal PCA restrictions do not apply to National Guard forces operating under the command and control of their state governor, which is known as either a State Active Duty (SAD) or Title 32 status. Whether the Posse Comitatus Act applies in today’s current hybrid scenario, absent an Insurrection Act invocation, remains unclear.
For the D.C. National Guard, the Trump administration will undoubtedly point to a 1989 Office of Legal Counsel (OLC) opinion that opined that PCA restrictions do not apply to D.C. National Guard deployments when they support local drug enforcement efforts. Then, OLC pointed to a provision of D.C. Code where Congress authorized the commanding general of the D.C. National Guard to “order out any portion of the National Guard for such drills, inspections, parades, escort, or other duties, as he may deem proper.” OLC viewed the phrase “other duties, as he may deem proper” broadly, to encompass law enforcement operations. And a 1971 OLC Memo concluded that the use of troops to protect the functioning of the federal government was not prohibited by the PCA. Today’s Justice Department will likely analogize the existing immigration law enforcement mission to the 1989 drug enforcement activities to argue that the PCA does not apply. The Justice Department will highlight the open-ended language of “other duty,” D.C.’s unique status, and the government’s interest in a broadly asserted mission of protecting federal property and people.
For the three outside National Guard units, there is little relevant case law to help answer the legality of the deployment under 502 (f) and the subordinate question of how PCA restrictions would apply to the South Carolina, West Virginia, or Ohio Guard units, if at all. The president’s lawyers will likely argue that PCA restrictions do not apply as these units still fall within the state control of each unit’s respective governor—akin to how National Guard units were deployed around the nation in a Title 32 status during COVID-19. But, at that time, each state signed up to receive federal money and consented to activate and deploy their forces. If an out-of-state Guard unit were sent to another state against the wishes of the receiving state’s governor, this deployment would likely violate the receiving state’s sovereignty. As a federal enclave, D.C. is undoubtedly a unique jurisdiction, adding a layer of complexity to the legality of 502(f) and the Posse Comitatus Act analysis.
Yet again, 2020 offers a lesson in how the Trump administration might be thinking about the out-of-state Guard members’ deployment.
In his correspondence to Bowser in 2020, Barr did not squarely address the Posse Comitatus Act question. He instead highlighted that out-of-state Guard units had broad responsibilities and authorities for Guard forces to operate in the District. These authorities were further bolstered by a purported Article II “protective power” authority that Barr pointed to as a legal basis for the military to protect people, property, and federal functions. He stated:
Consistent with the President’s direction, the Secretary of Defense assigned to out-of-state National Guard personnel the mission of protecting federal functions, persons, and property within the District of Columbia. That mission includes the protection of federal properties from destruction or defacement . . . protection of federal officials, employees, and law enforcement personnel from harm or threat of bodily injury; and protection of federal functions, such as federal employees’ access to their workplaces, the free and safe movement of federal personnel throughout the city, and the continued operation of the U.S. mails.
As Chris Mirasola has written, the protective power theory creates “unresolved tensions” between the Posse Comitatus Act and the protective power. Purely defensive activities—such as protecting property and people are likely within the scope of the protective power, but the Ninth Circuit has held that activities that “pervade the activities of civilian officials violate the PCA.” At the end of the day, we lack a clear, bright-line test for determining what the PCA prohibits in every scenario—the Pentagon’s instruction for civilian law enforcement activities has numerous exceptions—a legal murkiness that the current administration is clearly interested in exploiting.
After outside National Guard units were deployed to D.C. in 2020, Joseph Nunn and Elizabeth Goitein of the Brennan Center, Steve Vladeck, and I all argued that Congress should revise and circumscribe the president’s authorities over the D.C. National Guard as well as under 32 USC 502 (f). Sadly, those recommendations did not succeed, despite several good-faith efforts to move them forward.
Will Trump invoke the Insurrection Act?
Trump has not yet invoked the Insurrection Act in deploying the military to Los Angeles earlier this year or to D.C. Should he choose to do so, Trump would have to satisfy threshold legal questions and follow required procedures—such as issuing an order for protesters to disperse—before tapping into Insurrection Act authorities. To be sure, the statutory triggers justifying an Insurrection Act invocation are also murky, based on antiquated language that is difficult to apply in modern times. And it is unlikely that a federal judge will be excited to second-guess a president’s decision-making—the key case opining on the president’s authority to invoke the Insurrection Act dates back to the early 1800s. Still, Trump would likely face political, if not legal, blowback for invoking the Insurrection Act—the last time a president invoked it over a governor’s objection occurred in Selma, Alabama, in 1965.
For now, I think Trump will not invoke the Insurrection Act if he can tap into other legal authorities to achieve his broad objectives. Both the military deployments to D.C. and California offer test cases for this legal strategy. For example, Trump used a novel statute, 32 USC § 12406, to effectively federalize the California National Guard in May. Whether that deployment violated the Posse Comitatus Act is now being litigated in Newson v. Trump in federal court in California. If Trump can rely upon novel legal authorities and win with them at federal court, there appears to be little need or legal justification for an Insurrection Act invocation.
What are the additional concerns of adding outside Guard units?
Integrating outside National Guard units into one coherent command is a difficult, if not impossible, task under the best of circumstances. What is unfolding in D.C. includes different units with different authorities, chains of command, and training. For some outside National Guard members, this may be the first time they have set foot in Washington, D.C. Questions arise, such as:
- What are the relevant rules for the use of force, and are they the same for each National Guard unit? Some National Guard forces are reportedly carrying firearms in D.C.—what rules govern their use?
- What kind of training for de-escalation and use of force has taken place? Each state and territory has different guidance on National Guard authorities on the use of force and when it is authorized—what rules apply in D.C.?
- What is the chain of command for the myriad forces engaged in law enforcement in D.C.?
- Under what law are the outside National Guards operating as part of their deployment? Ideally, each National Guard unit would be properly trained on the relevant D.C. law governing the deployment. Relevant state laws governing National Guard usage vary widely by state.
In sum, the Trump administration is pursuing a maximalist legal approach in deploying the military to achieve the president’s objectives in D.C., California, and potentially more states. The deployments to D.C. and California may well be a dry run for even greater reliance on the military to be deployed domestically. This aggressive legal approach takes advantage of four untested—and somewhat murky laws and doctrines—to include 502(f), 32 U.S.C. 12406, the protective power, and the unique role the D.C. National Guard plays in local law enforcement operations. Whether the maximalist approach prevails in federal court and provides the legal basis to achieve Trump’s objectives remains to be seen.
