In early August, President Donald Trump activated the D.C. National Guard to address rising crime in Washington, D.C. The situation escalated further with three Republican governors announcing plans to deploy their National Guard units to the capital, creating a potential flashpoint in a predominantly Democratic city. As confusion lingers regarding the scope, mission, and coordination of these deployments, certain fundamental questions arise. The implications of President Trump’s reliance on legal authorities can extend beyond the current circumstances in D.C., foreshadowing a broader use of military forces in urban areas across America.
Two primary legal authorities are relevant for scrutinizing the activation and deployment of both the D.C. National Guard and the out-of-state forces from West Virginia, Ohio, and South Carolina. The D.C. National Guard operates under unique legal frameworks that differ distinctly from the other 53 National Guard units across the United States. Unlike governors of states or territories who have authority over their respective National Guards, the D.C. National Guard is under the direct command of the President, who exercises control through the secretary of defense and the secretary of the Army. This centralized command structure grants President Trump substantial authority over the D.C. National Guard without needing to invoke the Insurrection Act. This law permits the deployment of active-duty military for law enforcement purposes in specific circumstances, acting as a key to accessing authority over both the National Guard and federal military forces.
With the addition of outside National Guard units, totaling four National Guard components plus various federal law enforcement officers in D.C., the coordination and integration of these forces remain ambiguous. The situation is further complicated by a lack of clarity concerning the legal authority under which the outside National Guard units are operating. Given the administration’s past actions, it appears reminiscent of the deployment strategies employed during the George Floyd protests in 2020. At that time, Attorney General William Barr drew upon a somewhat untested legal authority under 32 U.S.C. 502(f) to justify requesting out-of-state National Guard units to protect federal assets. This section allows for National Guard members to be called upon for “other duty” to support their units’ operations at the request of the President or the Secretary of Defense.
This legal authority was modified in response to Hurricane Katrina to expedite the National Guard’s participation in domestic operations. However, the legislative history contained no indication that Congress intended for 502(f) to facilitate law enforcement conduct in unrelated jurisdictions. In 2020, eleven governors provided the president with support by sending their National Guard troops, illustrating the administration’s willingness to explore expansive interpretations of legal authority to attain its objectives.
The potential objection from D.C. Mayor Muriel Bowser introduces yet another layer of complexity to the National Guard’s involvement. During the previous summer’s protests, Bowser formally requested the withdrawal of federal law enforcement and military personnel, citing the confusion created by their presence. In response to her appeal, Barr referenced the deployment authority under 32 U.S.C. § 502(f), maintaining that the external National Guard units operated under necessary statutory permissions. Ultimately, the 4,000 National Guard forces remained in D.C. for only a week before Trump announced their withdrawal but, notably, no federal court ruled on the legality of utilizing 502(f) for deploying National Guard forces amidst civil unrest. This absence of legal precedent means that the current deployment of out-of-state forces remains in uncharted waters.
There is a pressing need to clarify what tasks National Guard units can perform while in Washington, D.C. The applicability of the Posse Comitatus Act (PCA), which prohibits the military from executing civilian laws—such as detaining or arresting individuals—poses significant questions for National Guard operations. Traditionally, if National Guard units operate under their state governor, the PCA restrictions do not apply. However, the current deployment scenario lacks clarity, especially concerning the D.C. National Guard and the outside units under President Trump’s command.
Legally, the D.C. National Guard can claim authority based on a 1989 Office of Legal Counsel (OLC) opinion, indicating that the PCA does not cover situations wherein the D.C. National Guard supports local drug enforcement. This opinion points towards a provision in D.C. law that allows the commanding general of the D.C. National Guard broad discretion in determining their deployment tasks. The same rationale may be leveraged by today’s Justice Department to suggest parallels between drug enforcement missions and current immigration enforcement tasks. In doing so, they could argue for broad latitude in interpreting the PCA within the confines of D.C.’s unique legal status, thus enabling the support of local federal law enforcement actions.
Yet, the legal ambiguity worsens for the outside National Guard units, as there is scant relevant case law to illuminate the legality of their deployment under 502(f) or the PCA’s applicability concerning them. Officials from the administration could contend that PCA restrictions do not apply since these units are still technically under the authority of their respective governors. Unlike instances where state units receive federal consent for deployment, sending out-of-state units to a locality without the receiving jurisdiction’s consent could infringe upon that locality’s sovereignty. D.C.’s unique jurisdiction exacerbates this legal ambiguity, drawing attention to the nuanced implications of both 502(f) and PCA considerations.
Historical context from 2020 informs current concerns regarding the deployment of outside forces in D.C. In Barr’s previous communication with Mayor Bowser, he did not confront the PCA’s legal implications directly. Instead, he underscored the broad responsibilities allocated to out-of-state Guard units for operations in the District while suggesting that the notion of a protective power under Article II granted sufficient legal foundation for deploying military presence to safeguard federal roles, people, and property. This interpretation creates unresolved tension between the PCA restrictions and utilization of protective power. While purely defensive actions might remain within the scope of protective power, previous rulings have also established that military activities intertwined with civilian functions could violate PCA regulations.
As the current legal landscape stands, there is no defined framework for articulating which PCA prohibitions apply in diverse scenarios involving National Guard deployments. There exists a murky legal environment that the Trump administration appears poised to exploit for its ends. During discussions in 2020, several legal scholars argued for Congressional actions to refine and restrict presidential control over both the D.C. National Guard and authorities under 32 U.S.C. 502(f), but these recommendations failed to gain traction. The uncertainty continues into today, compounded by the possibility of court challenges regarding the application of 502(f).
President Trump has yet to invoke the Insurrection Act in connection with military deployments, either in Washington, D.C., or elsewhere this year. Should he opt to pursue this route, it is essential he addresses legal prerequisites, like issuing dispersal orders for protestors, within the framework established by the Insurrection Act. That said, the legal triggers justifying an Insurrection Act invocation remain ambiguous, with antiquated language complicating modern interpretations. It’s unlikely that judicial authorities would readily challenge a president’s authority to invoke the Insurrection Act, given that legal precedents for such actions were established centuries ago. Nonetheless, political repercussions would arise in any attempt to proceed with this declarative authority, echoing similar historical events.
Currently, it is anticipated that Trump may avoid invoking the Insurrection Act if he can employ alternate legal provisions to achieve desired outcomes through military involvement. A case-by-case examination of military actions across the country provides insight into how this legal strategy could unfold. Following Trump’s recent activation of a statute, 32 U.S.C. § 12406, to essentially nationalize California’s National Guard, the legality of that deployment is under litigation in a federal case known as Newsom v. Trump. By leveraging unconventional legal frameworks and succeeding in court, Trump may find little justification to resort to invoking the Insurrection Act for the deployments to D.C. or California.
Moreover, logistical concerns surface regarding the integration of diverse outside National Guard units into a coherent operational command. Navigating this complicated scenario is even more daunting given the contrasting authorities, chains of command, and levels of operational training among the multiple units. This deployment may represent a starting point for many of the outside National Guard members, raising crucial questions surrounding the operational parameters in D.C. Notably, it remains unclear what use-of-force regulations are applicable, particularly when firearms might be involved, given differing state policies regarding National Guard activities.
The involvement of outside units in D.C. introduces critical questions about training protocols for de-escalation and use of force, which vary significantly from state to state. Training inadequacies could potentially lead to missteps among units lacking familiarity with local laws that govern their deployment. More fundamentally, an ambiguous chain of command complicates any interpretative guidance available for forces engaged in law enforcement actions.
The question of applicable law for the outside National Guard units further amplifies these concerns, with warnings that each unit should ideally be briefed on the relevant D.C. guidelines governing their actions. With significant variations in state laws surrounding National Guard engagements, the legal framework governing outside National Guard deployment becomes complicated. As tensions gather once again in the nation’s capital, clarity and cohesion in operational deployments could become crucial to maintaining security and order.
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