While the Trump era exposed weaknesses in many U.S. institutions and resulted in the proliferation of reform proposals from organizations like ours, relatively little attention has been paid to much-needed reforms to the domestic deployment of the National Guard. The brutal crackdown on nonviolent demonstrators on June 1, 2020, at Lafayette Square and the attempted insurrection at the U.S. Capitol on January 6, 2021, provide important lessons about how and when the National Guard is (or is not) deployed domestically, its command structure for domestic deployment, and the Guard’s legal authority when it acts.

We highlight below some of the troubling aspects of what happened on those two occasions and recommend that Congress adopt several amendments to the FY2022 National Defense Authorization Act (NDAA) that would reform the outdated command structure of the D.C. National Guard, and ensure that the Posse Comitatus Act and constitutional protections are observed. These proposals are supported by a cross-ideological coalition, including our organizations—Human Rights First and Protect Democracy, as well as prominent law enforcement and veterans’ groups. They are also similar to several reforms proposed by Professor Mark Nevitt as part of Just Security’s Good Governance Papers series.

Did the Posse Comitatus Act apply to the National Guard deployed to D.C.?

In response to the widespread protests following the murder of George Floyd last summer, former-President Trump deployed both the D.C. National Guard and thousands of out-of-state National Guards members into Washington, D.C. to police protestors. In doing so, the administration performed an end-run around the Posse Comitatus Act, which prohibits the use of federal military forces inside the United States for law enforcement purposes unless doing so has been expressly authorized by Congress or the Constitution.

Crucially, the Posse Comitatus Act applies only to federal armed forces—it does not restrict state National Guard forces when they are operating under state command and control. Congress has created a number of exceptions to the Posse Comitatus Act. The most important of these is the Insurrection Act, which allows the president to use the military to suppress insurrections or other instances of large-scale, violent lawlessness with or without the consent of state and local officials. But invoking the Insurrection Act comes with high political costs, which have long discouraged presidents from overusing the authority it grants.

The D.C. National Guard is—legally speaking—a strange beast. It was created in 1802 by Thomas Jefferson and always operates under the direct control of the president, though command is currently delegated to the Secretary of Defense. This command structure is unlike that of every other National Guard organization, including those in territories such as Puerto Rico and Guam, all of which report to the governor of their state, commonwealth, or territory unless and until they are called into federal service—or “federalized”—by the president through a statute like the Insurrection Act. Yet even though the D.C. Guard is always under federal command, a 1989 Office of Legal Counsel memorandum concluded that it may operate in a “state militia” mode that exempts it from the Posse Comitatus Act just like any other state National Guard unit.

It was these D.C. National Guard troops that joined the U.S. Park Police and D.C. police in using flash grenades and tear gas to forcefully clear a crowd of people nonviolently protesting police brutality on June 1, 2020. Therefore, Lafayette Square was in effect a case of the president deploying the U.S. military against protestors exercising their First Amendment rights inside the United States. He was able to do so without incurring the costs of invoking the Insurrection Act because of the existing command structure of the D.C. National Guard.

In addition to the D.C. Guard, thousands of Guard members from eleven states were also deployed into Washington, D.C. last June over the objections of D.C.’s mayor. These troops were brought into the District in so-called “hybrid” status under 32 U.S.C. § 502(f). Among other things, section 502(f) allows a state governor to deploy their Guard forces to execute a federally-requested mission. In this status, Guard members are paid with federal funds but are supposed to remain under the command and control of their governor. As a consequence, Guard members operating under section 502(f) are not subject to the Posse Comitatus Act.

However, Chairman of the Joint Chiefs of Staff Mark Milley confirmed that the state units deployed into D.C. were in fact reporting up through the D.C. Guard’s chain of command to the president, telling the House Armed Services Committee in a hearing, “There were National Guard troops from 11 different States, and the chain of command for those National Guard troops ran from the President to the Secretary of Defense to the Secretary of the Army to Major General Walker, and it never changed.” Thus, although these Guard members had been deployed to D.C. nominally under state control, by instructing them to operate under the D.C. Guard’s chain of command, the Trump administration effectively achieved a backdoor federalization of the Guard. This federally-controlled military force was able to engage in law enforcement, evading the Posse Comitatus Act, without the president incurring the political costs of invoking the Insurrection Act.

Although past deployments of National Guard personnel on U.S. soil also raise profound posse comitatus concerns—including the deployments of the National Guard to the southern border under Presidents Bush, Obama, and Trump—the misuse of the National Guard in Lafayette Square last year stands out as especially egregious and troubling because it was aimed at suppressing First Amendment activity.

How was the National Guard involved at the Capitol on January 6, 2021?

In many ways, the role of the D.C. National Guard on January 6, 2021, was the opposite of what happened in June 2020. On January 6th, a violent mob stormed the U.S. Capitol with the goal of overturning the results of the U.S. presidential election, and the D.C. National Guard did not arrive on the scene for nearly five hours. Because the federal government has control over the D.C. National Guard, the D.C. mayor had to ask the Department of Defense to deploy the Guard rather than ordering them to respond herself. It took over an hour for the executive branch to approve this request and another two hours before authorization was communicated to the Guard itself. This outdated command structure hampers the Guard’s flexibility in times of crisis, and it needs to be remedied to prevent such a delay from happening again.

Again, Washington, D.C. is the only jurisdiction in the country in which the chief executive (typically a governor, but in this case a mayor) needs permission from the federal government to protect her or her own citizens and others within its borders.

How can Congress address these loopholes?

To address these loopholes, our organizations support a series of three legislative proposals for the FY2022 National Defense Authorization Act (NDAA). The first of these is the District of Columbia National Guard Home Rule Act, which was included by Chairman Adam Smith in the NDAA text that the House Armed Services Committee will work from when they hold a markup tomorrow. This provision would transfer control over the D.C. National Guard from the president to the mayor of Washington, D.C. Reforming the command structure in this way would prevent future presidents from using their permanent control over the D.C. Guard to evade the Posse Comitatus Act’s restrictions on military participation in law enforcement, as happened in June 2020. It would also help ensure that the D.C. Guard is able to be deployed more rapidly, with fewer bureaucratic hurdles, addressing concerns from January 2021.

The other two proposals complement this provision. An NDAA amendment proposed by Congresswoman Mikie Sherrill would clarify that state governors may not deploy their Guard units into other states or territories without those jurisdictions’ consent—as happened last summer when 11 states deployed their Guards to D.C. without the mayor’s consent. We believe this limitation is arguably inherent in the Constitution because of the coequal and territorially limited sovereignty possessed by U.S. states. However, the amendment would help prevent the egregious legal interpretation of 32 U.S.C. § 502(f) that former Attorney General William Barr relied on last year to justify the Guards’ deployment to D.C.

We also believe that Congress should consider an additional NDAA amendment that would clarify that the Posse Comitatus Act applies whenever the National Guard is reporting up to the president or the president’s designee, similar to what Senator Udall and Representative McGovern offered last year. This provision would prevent future administrations from circumventing the Posse Comitatus Act by using nominal command by state governors under section 502(f)’s hybrid status to paper over what are, for all intents and purposes, federally-controlled actions by the Guard.

There are of course, legitimate reasons for the president to deploy the military domestically, such as providing disaster relief, repelling invasions, or enforcing civil rights laws. However, we believe Congress has given the president ample authority to deal with these situations, and the reforms we’ve proposed would in no way limit the consensual cross-deployment of one state’s National Guard into another in “State Active Duty” (SAD) or Title 32 status. These reforms would simply address dangerous gaps in the law to prevent the National Guard from being misused or dragged into partisan politics.

Similarly, there are legitimate reasons for states to deploy their own Guard in their own state—as happened around the country last summer—in response to emergencies, or through an interstate compact with the consent of the relevant governors. None of the reforms we’ve proposed above would prevent a state from lawfully exercising those powers either.

Images: (Left) Law enforcement responds during a protest near Lafayette Park ahead of President Trump’s trip to St. John’s Church on June 1, 2020 in downtown Washington, DC. (Photo by Drew Angerer/Getty Images); (Right) Trump supporters clash with police and security forces as they push barricades to storm the US Capitol in Washington D.C on January 6, 2021. (Photo by ROBERTO SCHMIDT/AFP via Getty Images)