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Analysis

DC’s National Guard Should Be Controlled by Its Mayor, Not By a President Like Trump

This critical reform would shore up our democracy and protect the District’s residents.

Last Updated: December 3, 2021
Published: December 2, 2021
National Guard troops in Washington, D.C.
Bill Clark/Getty

This article first appeared in Slate.

In the coming days, Congress will likely pass the annual National Defense Author­iz­a­tion Act, as it does every year. But this year, the legis­la­tion could include a provi­sion that is anything but routine: The House version of the bill would trans­fer command and control of the D.C. National Guard from the pres­id­ent to the district’s mayor. This crit­ical reform—a response to the direct threats to demo­cracy the nation has recently exper­i­enced—­would both shore up demo­cracy’s safe­guards and protect the safety of Wash­ing­ton, D.C.’s resid­ents.

National Guard organ­iz­a­tions are the modern incarn­a­tion of the colo­nial state mili­tias; their defin­ing feature is that they gener­ally oper­ate under the command of their state or territ­orial governor. This is true of all 54 National Guard organ­iz­a­tions in the United States today—ex­cept one. By law, the D.C. National Guard serves exclus­ively under the command of the pres­id­ent.

This unique arrange­ment does not result from any legis­lat­ive judg­ment that local control of the district’s Guard forces would be inap­pro­pri­ate. Rather, it is a relic of history. When Congress assigned command of the D.C. Guard to the pres­id­ent, there was no local govern­ment for the district—no elec­ted local leader to take charge of its mili­tia. The entirety of D.C. was a federal enclave.

Today, this original justi­fic­a­tion for pres­id­en­tial control of the D.C. Guard no longer exists. Moreover, the D.C. Guard’s anom­al­ous command struc­ture causes two seri­ous prob­lems, both of which were on display in the last year and a half.

First, it creates a loop­hole in the Posse Comit­atus Act, the law that prohib­its the pres­id­ent from using federal milit­ary forces to conduct civil­ian law enforce­ment without an express stat­utory excep­tion. This law reflects a core prin­ciple of our nation. The founders under­stood that an army turned inward could easily become an instru­ment of tyranny for the pres­id­ent.

Because the Posse Comit­atus Act applies only to federal milit­ary forces, National Guard person­nel are not bound by it unless they have been called into federal service, or “feder­al­ized.” But even though the D.C. Guard is always under the pres­id­ent’s control, the U.S. Depart­ment of Justice has long main­tained the legal fiction that it can oper­ate in a non-federal “mili­tia” status. That means the pres­id­ent can use the D.C. Guard as a domestic police force at any time, without invok­ing the Insur­rec­tion Act (which allows the pres­id­ent to use milit­ary force to quell viol­ent upris­ings or enforce civil rights laws) or any other stat­utory excep­tion to the Posse Comit­atus Act.

In June 2020, Donald Trump took advant­age of this loop­hole, deploy­ing the D.C. Guard—over the objec­tions of D.C.’s mayor—in response to local protests against police brutal­ity. He also asked several governors to deploy their own Guard forces into D.C. Although these out-of-state units were nomin­ally under their governors’ control, they were in fact report­ing up through the D.C. Guard’s chain of command, which meant they were ulti­mately taking orders from the pres­id­ent. In this way, Trump used the Guard’s command struc­ture to completely evade the Posse Comit­atus Act, deploy­ing thou­sands of troops as a domestic police force without any stat­utory author­iz­a­tion.

The second prob­lem with the D.C. Guard’s command struc­ture came to vivid light on Jan. 6. As rioters breached the U.S. Capitol and threatened the safety of lawmakers and others inside the district, the mayor of Wash­ing­ton, D.C. was not able to deploy D.C.’s own Guard to assist. Instead, she had to ask the D.C. Guard’s Command­ing General for help, who then had to request author­iz­a­tion from the Secret­ary of the Army. This need­lessly bureau­cratic process took hours—all while D.C. Guard person­nel sat wait­ing on buses. By contrast, Metro­pol­itan Police Depart­ment officers arrived on the scene within ten minutes.

The District of Columbia National Guard Home Rule Act, which was incor­por­ated into the House-passed National Defense Author­iz­a­tion Act, solves both of these prob­lems by trans­fer­ring control over the D.C. Guard from the pres­id­ent to the mayor of Wash­ing­ton, D.C. That would prevent pres­id­ents from using the D.C. National Guard to evade the Posse Comit­atus Act, bolster­ing reas­on­able and long-stand­ing restric­tions on pres­id­en­tial power. At the same time, it would enable prompt and predict­able local govern­ment responses to emer­gen­cies.

To be clear, grant­ing the mayor command of the D.C. National Guard is not—­for better or for worse—a step­ping-stone to D.C. becom­ing a state. After all, the governors of Puerto Rico, Guam, and the U.S. Virgin Islands all exer­cise primary control over their National Guard forces, and yet this has not set those territ­or­ies on the path to state­hood. Local control of Guard forces is not, and never has never been, contin­gent on state­hood status.

Nor would the law affect the pres­id­ent’s abil­ity to call the D.C. Guard into federal service, just as he can do with the Guard units of any other territ­ory or state. But those forces would then be bound by the Posse Comit­atus Act. Accord­ingly, the pres­id­ent would have to follow the laws estab­lished by Congress and invoke the Insur­rec­tion Act before using the D.C. Guard for civil­ian law enforce­ment.

This reform has a signi­fic­ant hurdle to clear before it becomes law. Lawmakers are still work­ing to recon­cile the House-passed version of the NDAA with the version currently under consid­er­a­tion by the Senate, which does not include such reform. The members involved in these nego­ti­ations should recog­nize the import­ance of this meas­ure and include it in the final NDAA. If they do that, they will have performed a valu­able service for our demo­cracy and for the city in which it sits.