A week ago, President Donald Trump and members of his cabinet announced a takeover of law enforcement functions in Washington, D.C. using three tools: deployment of elements of the D.C. National Guard (and National Guard troops from several cooperating states as well), invocation of a statutory emergency power to requisition the services of the city’s Metropolitan Police Department, and a surge of federal law enforcement to the city’s streets, including Department of Homeland Security, Federal Bureau of Investigation, and other federal agents. Over the past week, 800 D.C. National Guardsmen have been mobilized for operations in the city, with hundreds more state National Guardsmen on their way, and 500 newly deployed immigration and other federal agents are patrolling the streets or have set up checkpoints. At the same time, the district and the White House have engaged in a power struggle over control of the city’s police department.
According to the White House, these moves were necessitated by “out-of-control” violent crime in the district—a view contradicted by city and federal statistics showing a significant downward trend. Regardless of crime levels in the city, however, the use of National Guard forces raises significant legal questions, including the specter of potential Posse Comitatus Act violations. Moreover, the ebb and flow of local crime is not an “emergency” that could justify a federal takeover of the D.C. police. And as shown recently in Los Angeles, the surge of homeland security agents can lead to aggressive, escalatory policing practices with little accountability or oversight.
At the same time, the president signaled that D.C. may be a testing ground for this strategy, to be replicated in other cities where the White House has exaggerated crime rates and complained about sanctuary laws and political opposition. But there are legal guardrails against such actions. The president’s authority over state National Guard forces is more limited than his authority over the D.C. National Guard, while the Tenth Amendment to the U.S. Constitution blocks the federal government from commandeering police departments in the states or revamping their policing policies and priorities.
Federal Deployment of the D.C. National Guard
Trump began the D.C. takeover attempt by announcing two executive actions. One of these was a presidential memorandum directing the Secretary of Defense to deploy elements of the District of Columbia National Guard into Washington, D.C. “to address the epidemic of crime in our Nation’s capital.” While the president has command authority over the D.C. National Guard, this use of the National Guard to support domestic policing functions is deeply concerning and may violate the spirit, if not the letter, of the Posse Comitatus Act.
Any domestic military operation that involves the armed forces in law enforcement should raise alarm bells. Indeed, there is a longstanding tradition in Anglo-American law against using the military for domestic law enforcement. As the Brennan Center has explained, this line between the military and civilian spheres serves as a critical protection for democracy and individual liberty. History teaches, and the Framers well knew, that the ability to turn an army inward can be a powerful instrument of tyranny and oppression.
What’s more, military personnel are generally trained and equipped to be soldiers, not law enforcement officers. The military provides scant training on how to respond to civil unrest and no training in municipal policing. Using the military for law enforcement thus exposes civilians to potential rights violations by soldiers who are not trained to uphold constitutional rights.
For these reasons, the president’s use of the military for policing is normally barred by the Posse Comitatus Act unless expressly authorized by Congress. There is a potential legal loophole, however, when it comes to the National Guard.
There are 54 National Guards (one for all 50 states, as well as Puerto Rico, Guam, the U.S. Virgin Islands, and the District of Columbia). Ordinarily, every National Guard operates under the command and control of its state or territorial governor unless and until it is “called into federal service,” or “federalized,” by the president. Because the Posse Comitatus Act is concerned with the president’s use of the military, National Guard forces operating under state control may be used for law enforcement to the extent permitted by state law; they are subject to the Posse Comitatus Act only when federalized and brought under the president’s command and control.
The sole exception to this framework is the District of Columbia National Guard, which is always under the president’s command and control and may be mobilized as he sees fit, without needing to formally call it into federal service. Although it might seem that the D.C. National Guard is always effectively “federalized” by virtue of operating under the president’s command, the Department of Justice’s Office of Legal Counsel (OLC) has long maintained that it may nonetheless operate in a non-federal “militia” status in which it is not subject to the Posse Comitatus Act. Under this view, the president can use the D.C. National Guard for law enforcement in the District whenever he chooses, without regard for the restrictions that apply everywhere else in the country.
This claim has never been tested in court, nor has Congress validated it by statute. OLC’s theory, expressed in a 1989 memorandum, is also in tension with more recent federal court decisions finding that application of the Posse Comitatus Act to the National Guard turns on whether the Guard has been placed under federal command and control. Given that the D.C. National Guard is under permanent federal control, these decisions suggest that it should always be subject to the Posse Comitatus Act. One might also argue that even if the president may use the D.C. Guard for local law enforcement as a governor might in one of the 50 states, the Posse Comitatus Act applies whenever the president deploys it for a federal purpose. According to the deployment order issued pursuant to the president’s August 11 memorandum, the purpose of deployment includes protection of federal property and functions and support to federal law enforcement.
Notably, courts have held that the Posse Comitatus Act applies only when federal forces engage directly in law enforcement activities and not when they provide indirect support to law enforcement, such as logistical assistance or area surveillance. Direct participation occurs when civilian law enforcement agents make “direct active use” of military personnel to execute the laws, when federal military forces pervade civilian law enforcement operations, or when troops subject civilians to an exercise of military power that is “regulatory, prescriptive, or compulsory in nature.” How the Trump administration intends to use the D.C. National Guard is still not entirely clear. The administration indicated that 100-200 D.C. Guardsmen were expected to be on duty in the city at any given time and that they would perform “an array of tasks from administrative, logistics and physical presence in support of law enforcement.” However, in at least one reported case, a National Guard member detained an individual who allegedly assaulted a U.S. Park Police officer—an act that clearly falls within the Posse Comitatus Act’s prohibition.
In addition, D.C. National Guard forces were initially unarmed. On Saturday, however, the Wall Street Journal reported that both the currently deployed D.C. National Guard personnel and arriving state National Guard troops would shift to carrying weapons. (A report later confirmed by the Guard spokesperson Army Senior Master Sgt. Craig Clapper.) The decision to arm the National Guard is a significant and unwarranted escalation that departs from established Department of Defense practices. Even when Trump and President Joe Biden deployed the Guard to provide additional security around the United States Capitol and the surrounding congressional office buildings in the weeks and months following the January 6th insurrection, they were generally unarmed. While the arming of Guard forces may not itself trigger the Posse Comitatus Act, it potentially augurs actions of a “prescriptive” or “compulsory” nature.
Deployment of National Guard Forces from Cooperating States
In his August 11 memorandum, Trump also directed the Secretary of Defense to “coordinate with State Governors and authorize the orders of any additional members of the National Guard to active service” in D.C. On Saturday, West Virginia became the first state to announce that it would be sending National Guard troops to D.C., followed quickly by South Carolina and Ohio, and then Mississippi and Louisiana. This deployment of National Guard forces from cooperating states to support policing of crime in D.C. represents a legally questionable use of so-called “Title 32” status. And notwithstanding threats of expansion, it could not be repeated in states that did not welcome out-of-state forces.
National Guard personnel brought into D.C. from cooperating states will be operating in Title 32 status, one of three different duty statuses that the National Guard can operate in at any given time. In “State Active Duty status,” Guard personnel carry out a state-defined mission, under state command and control, and with state funding and benefits. In “Title 10 status,” the Guard has been federalized, and undertakes federal missions under federal command and control with federal funding and benefits. Title 32 status sits in between: the Guard remains under state command and control but can perform functions established by Congress or requested by the executive branch and receives federal payment and benefits. Crucially, because Guard personnel in Title 32 status are under state control, they have not been federalized and are not subject to the Posse Comitatus Act.
Under Section 502(f) of Title 32, the specific authority that is being used to bring National Guard troops from West Virginia and other states to D.C., governors may deploy their National Guard in Title 32 status to support a federal mission at the request of the president or Secretary of Defense. The first Trump administration used this authority to bring thousands of state National Guard troops into Washington, D.C. in Title 32 status during the summer of 2020 to quell protests over the police killing of George Floyd.
Whether Section 502(f) authorizes the current state Guard deployments to D.C. is far from clear. Although the text of Section 502(f) is broad and might at first blush appear to permit governors to deploy their Guard forces for any reason identified by the president or Secretary of Defense, the legislative history of the provision, along with its placement in a section of the law pertaining to Guard training exercises, weighs heavily in favor of a much narrower reading of the law. It is best understood to facilitate federal payment for actions otherwise authorized under Title 32, as well as certain traditional Guard functions such as disaster relief.
The current deployment of state National Guard forces also raises concerns about potential circumvention of the Posse Comitatus Act. Although Guard forces performing federal missions under Section 502(f) remain under state command and control as a legal matter, they can in practice be subject to significant federal direction. That is particularly true when they are deployed to support the activities of the D.C. National Guard, which is always under the president’s command and control. In 2020, Department of Defense officials confirmed that state Guard forces were reporting through the D.C. National Guard’s (federal) chain of command. There is a powerful argument that the Posse Comitatus Act should be deemed to apply in such circumstances, even if Guard forces have not formally been called into federal service.
In any event, Trump could not use the same gambit in states like New York and Illinois, as he has threatened. U.S. states are sovereign entities vis-à-vis each other, and their sovereignty is both co-equal and territorially limited. As the Supreme Court has explained, “the jurisdiction of a state is coextensive with its territory, coextensive with its legislative power.” Because of this, one state cannot unilaterally reach into another and exercise governmental power there. A state court subpoena, for example, does not take direct effect in another state; instead, the party seeking to enforce the subpoena must do so through the second state’s courts. For the same reason, a state may not deploy its National Guard forces into another state without the latter state’s permission—that is to say, U.S. states may not invade one another.
Placing National Guard forces in Title 32 status as opposed to State Active Duty status does not overcome this sovereignty barrier, nor does the president’s request for assistance from a governor under Section 502(f). As a legal matter, Guard forces in Title 32 status remain under state command and control, just as in State Active Duty status. Orders to mobilize and deploy must be issued by the governor, not the president. That means that any Guard personnel deployed to DC in Title 32 status would not be considered federalized and would continue to operate under the authority of the sending state. Indeed, for this same reason, governors are free to deny the president’s request for assistance under Section 502(f). In practice, this limits the deployment of Guard forces in Title 32 status only to states in which the governor consents to such use.
Federal Government Commandeers the Metropolitan Police Department
President Trump has also invoked Section 740 of the D.C. Home Rule Act, which provides that “whenever the President of the United States determines that special conditions of an emergency nature exist which require the use of the Metropolitan Police force for federal purposes, he may direct the Mayor to provide him, and the Mayor shall provide, such services of the Metropolitan Police force as the President may deem necessary and appropriate.” The administration’s invocation and application of this provision appears to exceed the authority the statute provides in a number of ways.
To begin, the authority has been widely painted—most notably by Trump—as authorizing the president to take control over MPD. Indeed, the administration originally sought to oust the department’s police chief and replace her with a Drug Enforcement Administration official. The text of the provision, however, is less sweeping, only requiring the D.C. mayor to provide the president with the services of the police. This necessarily implies that the mayor retains direct control over MPD. In accordance with this reading, a federal court essentially forced the administration to reach an agreement with the district under which the existing police chief, appointed by the mayor, will retain command of MPD while the DEA official serves as a federal liaison between the Trump administration and D.C.’s elected government.
Even more fundamentally, the criteria for invoking Section 740 have not been met. First, there are no “special conditions of an emergency nature” present here. Section 740 does not define the term “emergency,” and the legislative history of the Home Rule Act offers no real insight on this point. Yet the word has a clear meaning. By definition, an emergency is a sudden and unexpected crisis. But there has been no unforeseen jump in crime in the nation’s capital; to the contrary, MPD statistics reflect a steady downward trend in crime since 2023. Of course, the administration can still take the position that crime levels are too high. What it cannot do, however, is demonstrate any sudden change in circumstances that could meet the well-established definition of “emergency.”
Second, Section 740 may be invoked only if the president requires the MPD’s assistance “for federal purposes.” Local crime prevention, even in the District of Columbia, is not a federal purpose; by contrast, suppressing an insurrection against the federal government or defending the nation’s capital against invasion by a foreign power are core federal purposes. Although the administration has been careful to include language about the protection of federal property and functions in its authorizing orders, its public statements make quite clear that the invocation of Section 740 is in response to alleged increases in local crime. There is no indication that MPD officers are being systematically moved away from residential or business areas to be deployed near federal buildings or property.
Finally, Section 740(d) imposes a 30 day time limit on presidential control over MPD that may be extended only by a joint resolution of Congress—a resolution that would be subject to a filibuster in the Senate. Trump has claimed that he could somehow unilaterally extend the time limit by declaring a national emergency. There is no legal basis for this claim, as the 137 statutory powers unlocked by a presidential declaration of national emergency do not include any authority to bypass the 30-day limitation included in Section 740(d). The Justice Department admitted to a federal court on Friday that the only way to extend the 30 days is by an act of Congress.
Homeland Security Deployment
The White House has directed a significant ramping up of federal law enforcement agencies, including those of the U.S. Department of Homeland Security (DHS) and the Department of Justice (DOJ). Throughout commercial, office, and residential areas, agencies like the DHS Federal Protective Service, Federal Bureau of Investigation, and Drug Enforcement Administration have conducted patrols. Homeland security task forces highlighted during last week’s White House press conference have increased drug and immigration enforcement. And immigration officers and D.C. police have operated joint checkpoints to enforce local and immigration laws alike, resulting in arrests. Local and federal officers pulled drivers over for broken taillights, and border patrol participated in the arrest of a dirt bike driver who crashed into a local police vehicle.
The surge added at least 500 new federal law enforcement officers to D.C. streets on top of those routinely present. By Friday, the Attorney General announced nearly 200 arrests, 75 of which were by immigration officers. Last Wednesday alone, 1,650 officers—including over 800 federal agents—engaged in these joint operations.
There are several potential legal bases for these deployments, although the White House has not specified the exact justification. When federal property is allegedly involved, it is likely that the DHS Federal Protective Service (FPS) is taking a leading role. FPS is charged with securing federal property along with the people who work or visit there. In D.C., where the federal government owns some 25% of the land, FPS has a large footprint. Notably, the Homeland Security Act permits FPS police to work beyond the confines of federal property “to the extent necessary to protect [federal] property and persons on the property.” FPS may also enforce state and local law with the agreement of local agencies. (Whether providing such agreement is a “service” that the president can demand under Section 740 is a critical—and unanswered—legal question.) FPS itself has some 1,300 employees and 13,000 contract guards, and it can also tap up to 90,000 other DHS police.
FPS has a notable history of overreach, including aggressive crackdowns on protesters and political surveillance. In Los Angeles this summer and Portland in 2020, masked border patrol special forces cross-designated as FPS officers were deployed onto U.S. streets, armed with weaponry and training more appropriate for their war-on-terror deployments to Iraq and Afghanistan. Earlier this year, DHS paid to settle resulting claims by Portland protesters; in Los Angeles, a lawsuit brought by protesters and journalists, alleging that they were targeted for their constitutionally protected activities, is pending. The agency has also used its broad intelligence program to monitor Occupy Wall Street activists, campus protests, and other such events, in many cases while explicitly disavowing any impact to federal property.
Other legal authorities may also be at work here. Some of the federal operations in D.C., including DHS and DOJ agents, have taken place far from any federal property, such as the commercial corridor checkpoint on 14th Street Northwest. Without citing the exact legal theory behind these operations, the government has stated they serve either to clean up D.C. crime or enforce immigration law. It is possible that these activities are taking place under the rubric of a joint task force established by Section 3 of the Making the District of Columbia Safe and Beautiful executive order. Alternatively, they could be attributable to a homeland security task force Trump mentioned during last week’s press conference, part of a program he created on his first day in office for the purpose of combatting transnational crime and narcotics. These task forces, managed jointly by the Attorney General and Secretary of Homeland Security, pull in officers from across federal law enforcement agencies and focus on immigration-related criminal investigations.
History has illustrated the risks of homeland security task forces: Joint operation models used to target terrorism have subjected Americans to abuses resulting from low investigative standards and electronic surveillance while failing to deliver promised results. Moreover, federal officers on these task forces are engaged in the mixed enforcement of federal and local law, but they lack training on local criminal matters, likely exacerbating risks of abuse or error.
More information is needed to assess whether federal law enforcement officers deployed in D.C. have acted within relevant statutory authorities. For instance, while FPS has a broad mandate to protect federal property, general city patrolling would be outside that scope. It is not yet clear which agencies have enforced federal versus local law at D.C. checkpoints, but reporting suggests federal officials have arrested people for driving under the influence, possession of heroin, assault, fleeing arrest, revoked auto permits, and an outstanding Virginia arrest warrant. Many of these actions appear to fall outside the purview of federal law enforcement.
In addition, the checkpoints have raised constitutional concerns. In 2000, the U.S. Supreme Court held in Indianapolis v. Edmond that a checkpoint established for the primary purpose of general crime control violates the Fourth Amendment, as distinct from targeted checkpoints to test driver sobriety. Edmond limits government’s “ability to construct roadblocks for almost any conceivable law enforcement purpose.” And as the Supreme Court held in 1976, while the border patrol may operate within a reasonable distance of the U.S. border, which includes proximity to maritime borders like D.C.’s, prolonged stops by the agency should be made “for the sole purpose” of assessing immigration status, not because of local infractions. The facts of the D.C. checkpoints are still coming into focus, but their legality will depend on whether vehicles have been stopped on a targeted basis for a legitimate purpose.
In addition to concerns about lawfulness, the deployment of DHS officers to city streets can quickly lead to escalation and conflict. In Los Angeles this summer, DHS officers fired so-called “less-lethal weapons” on journalists and activists in the streets, causing numerous injuries while also suppressing media coverage and free expression; border patrol’s special forces units deployed and engaged in protest response, and DHS launched Predator drones to surveil the city. In Portland in 2020, hundreds of these same border patrol agents, operating under FPS authority, notoriously followed protesters down streets far from any federal property and threw protesters into unmarked vans.
DHS abuses are exacerbated by a weak oversight and accountability infrastructure. Since the department’s creation, key offices that develop and enforce civil rights, civil liberties, and privacy policy have been plagued by weak investigative authorities and hampered by a lack of direct jurisdiction over the operations of components like ICE and U.S. Customs and Border Protection. Those agencies, which include border patrol, have internal oversight officers who report to the officials they are meant to oversee, creating fundamental conflicts of interest. And recently the Trump administration purged the “vast majority” of DHS’s public civil rights records from the last decade and gutted the headquarters civil rights office, leaving over 500 complaints to languish. Impacted organizations have challenged the decision, but if the action stands it will all but guarantee that the office will remain on the sidelines.
Prospects of a Nationwide Spread
Trump signaled Monday he sees the nation’s capital as a testing ground for a campaign targeting cities nationwide, name-checking places like Los Angeles, Chicago, New York, Oakland, and Baltimore. In these other jurisdictions, the president lacks both the direct control he has over the D.C. National Guard and the legal authority to requisition the services of local police.
To make use of the National Guard in these states, the president would be required to federalize them. While the president has statutory authority to do so, it may only be exercised under certain circumstances. As the Newsom v. Trump case currently making its way through the federal courts shows, states can and will contest the lawfulness of the president’s decision to federalize their National Guard in court.
In addition, while Congress empowered the President to make use of the D.C. police department in limited circumstances, the Tenth Amendment to the U.S. Constitution would prohibit that elsewhere. That is because the Tenth Amendment reserves powers not expressly granted to federal government to the states and people. The provision does not apply to D.C., which is not a state. Statehood is the best way to ensure local control of the D.C. police—and a solution supported by the Brennan Center, where we work. But in other locations, the Tenth Amendment means that the federal government may not commandeer state agencies to operate on its behalf, or to threaten them if they choose not to.
The Tenth Amendment would also prohibit Trump from undoing laws and policies preventing local officials from sharing information about immigrants—commonly known as sanctuary laws—as he promised to do last week at the White House, by takeover or threat of funding cuts or prosecution of local officials. Sanctuary practices involve cities and states choosing not to assist in certain aspects of the federal enforcement of immigration law. Federal threats to cut funding and prosecute local officials in retaliation for their sanctuary practices have failed repeatedly in the courts. Just last month, a federal judge in Illinois affirmed that state’s sanctuary laws, ruling that Congress had permitted but not required states to work with federal agencies on immigration enforcement. The court also signaled that any such congressional requirement would run afoul of the Tenth Amendment.
Conclusion
This week’s actions in the nation’s capital illustrate the dangers of an administration willing to exploit emergency powers and disregard the limits on those powers. The administration has militarized law enforcement in the district. It has engaged in an attempted illegal takeover of local police. And it has abused flexible homeland security mandates to crack down on D.C. residents and to make a show of power against perceived political opponents. To be sure, D.C. is unique in that its National Guard is always under federal control, and Congress has authorized a mechanism by which the federal government may briefly assume significant control over D.C.’s local police. But longstanding administration messaging about political opponents, urban crime, and sanctuary laws strongly suggest the government will try similar tactics elsewhere, testing the limits of statutory and constitutional boundaries.
