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How to Stop Abusive National Guard Deployments

New legislation would help prevent presidents from improperly using Guard troops as a domestic police force.

The National Defense Author­iz­a­tion Act for Fiscal Year 2022 (NDAA) passed by the House last week includes three crucial reforms that would close danger­ous loop­holes in the laws that govern domestic deploy­ment of the National Guard. These changes, adop­ted in response to events of the past year and a half, would help prevent polit­ic­ally driven misuses of National Guard forces.

First, the bill incor­por­ates the District of Columbia National Guard Home Rule Act, which would trans­fer control over the DC National Guard from the pres­id­ent to the mayor of Wash­ing­ton. Unlike every other National Guard in the coun­try, the DC Guard is never under local control. Whereas the Guard forces of the 50 states, Puerto Rico, and Guam all report to their state or territ­orial governor unless they are called into federal service, the DC Guard is always under the command and control of the pres­id­ent.

This outdated arrange­ment is a relic from the era before DC had an elec­ted local govern­ment. Further­more, it under­mines the Posse Comit­atus Act, which bars federal milit­ary forces from parti­cip­at­ing in civil­ian law enforce­ment activ­it­ies unless there is a law that expressly author­izes such deploy­ment, such as the Insur­rec­tion Act. Because the Posse Comit­atus Act only applies to federal milit­ary person­nel, it does not restrict National Guard forces unless they have been “feder­al­ized,” mean­ing called into federal service. But even though the DC Guard is under perman­ent federal control, the Depart­ment of Justice has long asser­ted that it can nonethe­less oper­ate in a non-federal “mili­tia” status. As a result, the pres­id­ent can use the DC Guard as a domestic police force whenever he or she wishes.

Last June, Pres­id­ent Trump did just that, deploy­ing the DC Guard in response to largely peace­ful protests against police brutal­ity. He also asked several governors to deploy their own National Guard forces into DC, against the wishes of DC’s mayor. Although these out-of-state units were nomin­ally under their governors’ control, they were in fact report­ing through the DC Guard’s chain of command. That meant they were taking orders from the secret­ary of the army, who in turn was acting at the direc­tion of the pres­id­ent. In effect, this large force of National Guard troops — far larger than the DC Guard alone — was being used to perform a domestic poli­cing func­tion under pres­id­en­tial control, all without any stat­utory author­iz­a­tion.

Trans­fer­ring control over the DC National Guard to the mayor of Wash­ing­ton would solve this prob­lem. The pres­id­ent would still be able to take command of the DC Guard when neces­sary by feder­al­iz­ing it, but the Guard would then be bound by the Posse Comit­atus Act, just like all other feder­ally controlled milit­ary forces. Thus, it would only be allowed to engage in law enforce­ment if there were a law that expressly author­ized such activ­ity.

The deploy­ment of multiple states’ Guard units in DC also illus­trates a second prob­lem — one that would be solved by an amend­ment offered by Rep. Mikie Sher­rill (D-NJ) and adop­ted during the House Armed Services Commit­tee’s NDAA markup. This provi­sion would clarify that a state governor may not send their National Guard forces into another state or territ­ory without the latter juris­dic­tion’s consent.

The prin­ciple that one state cannot effect­ively invade another is argu­ably inher­ent in the Consti­tu­tion. However, last June, then-Attor­ney General William Barr claimed that when National Guard forces are oper­at­ing in what is known as “Title 32 status” — a duty status in which the Guard can carry out feder­ally funded missions at the request of the pres­id­ent, while remain­ing under state command and control — their state’s governor can send them into another state or territ­ory even over that juris­dic­tion’s objec­tions.

Barr’s inter­pret­a­tion of the law is unpre­ced­en­ted, and it flies in the face of core consti­tu­tional prin­ciples. If the National Guard is oper­at­ing under state command, then the states’ status as sover­eign equals under the Consti­tu­tion precludes one state from send­ing its mili­tia into another without consent. To be sure, when the pres­id­ent has feder­al­ized the Guard, there is no ques­tion that Guard forces can be sent wherever the pres­id­ent determ­ines is neces­sary. But that sort of deploy­ment is an exer­cise of federal power, and one that Congress has expressly author­ized through the Insur­rec­tion Act. A state governor cannot stand in the shoes of the federal govern­ment merely because the pres­id­ent asks her to.

Barr’s construc­tion of the stat­ute also under­mines the prin­ciple of posse comit­atus. When oper­at­ing in Title 32 status, Guard forces are exempt from the Posse Comit­atus Act because they are under state command and control. A key part of that control, however, is the governor’s right to decline a partic­u­lar federal mission. That right is mean­ing­less if the pres­id­ent can simply approach a differ­ent governor and ask her to deploy her state’s Guard into the unwill­ing governor’s state. In this scen­ario, the cooper­at­ing governor becomes a fig leaf for the pres­id­ent to use the milit­ary as a police force anywhere in the coun­try, without follow­ing the proced­ures estab­lished by Congress in the Insur­rec­tion Act or incur­ring the polit­ical cost of invok­ing it. Sher­rill’s amend­ment closes this loop­hole by requir­ing both the send­ing and the receiv­ing juris­dic­tion to consent when Guard units are deployed in Title 32 status.

The third import­ant reform in the NDAA responds to a differ­ent sort of abuse of the National Guard. Last summer, South Dakota Gov. Kristi Noem used a private dona­tion from a Tennessee billion­aire — who happens to be a major Repub­lican donor — to fund the deploy­ment of 48 South Dakota National Guard members to the U.S.-Mexico border, where they were to act as self-depu­tized immig­ra­tion enforce­ment agents.

This bizarre and unpre­ced­en­ted scheme was a clear abuse of power. Treat­ing Guard forces as soldiers-for-hire under­mines public faith in the milit­ary, reduces trans­par­ency, and hinders account­ab­il­ity. It sends the message that National Guard forces are virtual mercen­ar­ies who may be deployed on the whim of any billion­aire will­ing to pay for their oper­a­tions — and possibly for their governor’s reelec­tion campaigns.

An amend­ment proposed by Rep. Veron­ica Esco­bar (D-TX) and adop­ted in commit­tee would prohibit privately funded inter­state deploy­ments of the Guard, except in certain cases of natural disaster. This is a consti­tu­tion­ally sound, common­sense solu­tion that would prevent governors from selling their National Guard forces’ services to the highest bidder.

The past year and a half has revealed danger­ous gaps in the laws that govern domestic deploy­ment of the National Guard. These three provi­sions in the House NDAA would go a long way towards clos­ing those gaps and prevent­ing future abuses.