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This outdated arrangement is a relic from the era before DC had an elected local government.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.