In the two and a half years since National Guard troops descended on Lafayette Square during peaceful protests, Congress has done little to prevent it from happening again. And even after a summer and fall of congressional hearings on the events of Jan. 6 – in which it became clear that then-President Trump never called in the D.C. National Guard to protect the Capitol from rioters – the process for deploying the D.C. National Guard remains overly bureaucratic and beyond the control of D.C.’s chief executive.
Although the searing images of Lafayette Square and Jan. 6 have begun to fade from our collective memories, it remains critical that Congress pass legislation to close loopholes in the laws that govern domestic deployment of the U.S. military to ensure that it is never politicized and deployed in unlawful and dangerous ways again.
Fortunately, there are two fixes currently in the House-passed National Defense Authorization Act (NDAA) moving through Congress that would address some of these vulnerabilities: Section 516, which requires all interstate deployments of the National Guard to be approved by the chief executives of both the sending and receiving states, and Section 6252, which transfers control over the D.C. Guard from the president to the mayor of Washington, D.C.
These fixes directly address some of the Trump administration’s most egregious abuses of the National Guard and would help inoculate the country against potential future abuses that former President Donald Trump has portended in recent speeches.
Congress must pass them now to prevent the next crisis.
Trump’s Plans to Politicize the Military
Trump has laid out plans to use the U.S. military in ways that would upend civil-military relations and threaten American civil liberties. According to recent reporting, Trump intends in a second administration to “deploy federal force against crime, unrest, and protests.”
In one speech to the America First Policy Institute, Trump offered concrete intentions to skirt state sovereignty and override governors’ wishes: “The federal government can and should send the National Guard to restore order and secure the peace without having to wait for the approval of some governor that thinks it’s politically incorrect to call them in. When governors refuse to protect their people, we need to bring in what’s necessary anyway. We need to go beyond the governor.”
In another speech, this time at the Conservative Political Action Conference (CPAC), Trump elaborated on how he views the president’s role in deploying the military at home: “The next president should use every power at his disposal to restore order, and if necessary, that includes sending in the National Guard or the troops.”
These potential abuses of power could look like another Lafayette Square or Jan. 6. It could also look like a president overruling a governor and deploying troops for nefarious purposes under the guise of national security.
As long as Trump – or any president – is able to exploit loopholes in domestic deployment laws, our country is at risk of dangerous deployments of the National Guard.
The Trump Administration Revealed Dangerous Loopholes in the Law
This is not just talk; Trump did – or attempted to do – some of these things during his time in office.
In June 2020, during protests against police brutality in Washington D.C., Trump asked multiple state governors to send their National Guard forces to D.C., against the wishes of Mayor Bowser. Several states refused, pointing to Mayor Bowser’s objections, but eleven states complied and sent approximately 4,000 troops into D.C. territory. In effect, this large force of National Guard troops – far larger than the D.C. Guard alone – was used to perform a domestic policing function under presidential control, without federalizing the Guard or obtaining the consent of the host jurisdiction.
Attorney General William Barr justified this unprecedented action by arguing that state governors acting under Title 32 – a hybrid status by which Guard forces remain under the command and control of the governor but are paid by the federal government and perform missions authorized by Congress – could deploy their National Guard units into other states without their consent. He argued that Title 32 authorizes state governors to deploy their National Guard to perform any conceivable mission requested by the president.
This radical interpretation of the law threatens state sovereignty and raises serious constitutional concerns. It also creates a dangerous loophole in the Posse Comitatus Act, which prohibits the military from enforcing civilian laws except in situations expressly authorized by the Constitution or Congress, such as under the Insurrection Act. The Posse Comitatus Act doesn’t apply when Guard forces perform federal missions under Title 32, in part because the governor of the state retains command and can control how the Guard is used within the state’s borders. That protection is mooted if one state can effectively invade another jurisdiction at the president’s request.
The events of Jan. 6 revealed another gaping hole in the laws around domestic deployment.
In the District of Columbia, unlike in every U.S. state and federal territory, the National Guard is always under the command and control of the president, even when not federalized. This arrangement – a holdover from the era before D.C. had its own government – creates yet another loophole in the Posse Comitatus Act whereby the military can be used as a domestic police force by the president without invoking the Insurrection Act.
It can also prevent timely deployment of the National Guard during a crisis – as we saw on Jan. 6. As rioters breached the Capitol and threatened the safety of Congress, the mayor of Washington, D.C. could not deploy D.C.’s own militia to assist. Instead, she had to ask the commanding general for help, who then had to request authorization from the secretary of the Army. Even leaving aside other potential reasons for the delay, this needlessly bureaucratic process took hours – all while D.C. Guard personnel sat waiting on buses.
Fixes in the House-Passed NDAA
Two amendments in the House-passed FY23 NDAA would close these loopholes and make it harder for another Trump administration – or any future president – to abuse the powers of the National Guard. Specifically:
- Section 516 of the House-passed NDAA would require all interstate deployments of the National Guard under 32 U.S.C. § 502(f)(2)(A) to be approved by the chief executives of both the sending and receiving states. It reaffirms the basic constitutional principle that each state maintains its own sovereignty vis-à-vis other states, without affecting the president’s ability to call the National Guard into federal service or to use Guard forces for law enforcement purposes as authorized by Congress.
- Section 6252 of the House-passed NDAA would transfer control over the D.C. Guard from the president to the mayor of Washington, D.C. This would ensure the mayor, the city’s chief elected executive, could deploy the Guard during crises, just like chief executives in every U.S. state and territory can. Critically, the president would retain the authority to call the D.C. Guard into federal service when doing so may be appropriate, such as to enforce civil rights or suppress insurrections.
Without these fixes, Congress will leave the National Guard open to politicization and ripe for future abuse. The House has already recognized this; the Senate must act now.