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Putting DC in the Chain of Command

Congress should reform the DC National Guard’s outdated and dangerous command structure.

Last Updated: January 10, 2022
Published: January 10, 2022

This article first appeared on the Amer­ican Consti­tu­tion Soci­ety’s Law and Policy Analysis blog.

One of the most dramatic fail­ures on Janu­ary 6, 2021, was the long delay in deploy­ment of the D.C. National Guard (DCNG) to the U.S. Capitol. Although the reas­ons for the delay remain murky, the solu­tion is clear: Congress should trans­fer command and control of the DCNG from the U.S. pres­id­ent to the Mayor of Wash­ing­ton, D.C.

The DCNG is the only National Guard organ­iz­a­tion in the United States that is always under the pres­id­ent’s command. In every other state and U.S. territ­ory, National Guard forces are under local control unless called into federal service. The unique command struc­ture of the DCNG is often mistakenly attrib­uted to the fact that D.C. is not a state. But state­hood is not a prerequis­ite, as evid­enced by the fact that Puerto Rico, Guam, and the U.S. Virgin Islands all exer­cise command and control over their Guard forces. The real explan­a­tion is that Congress estab­lished DCNG’s command struc­ture in 1889, when D.C. had no local govern­ment—a state of affairs that changed fifty years ago.

As a result of this outdated arrange­ment, if the mayor of D.C. wants to engage the DCNG in any of the ways that other local govern­ments routinely use their Guard forces—such as support­ing civil­ian author­it­ies’ responses to natural disasters, public health crises, or riot­s—she must obtain permis­sion from the Depart­ment of Defense. Under the most straight­for­ward of circum­stances, this hurdle would lead to some bureau­cratic delay.

On Janu­ary 6, the condi­tions were anything but straight­for­ward, and the extent of the delay cannot be explained by mere bureau­cracy. Accord­ing to the Depart­ment of Defense’s offi­cial timeline and supple­mental report­ing, D.C.’s mayor and the U.S. Capitol Police reques­ted deploy­ment of the DCNG at 1:34 pm and 1:49 pm, respect­ively. Yet the Depart­ment of Defense did not approve deploy­ment until 4:32 pm and did not convey that approval to the DCNG’s command­ing general until 5:08 pm. In the inter­ven­ing three-and-a-half hours, rioter Ashli Babbitt was fatally shot, and U.S. Capitol Police officer Brian Sick­nick was attacked and sprayed with a chem­ical irrit­ant, contrib­ut­ing to a fatal stroke several hours later. Four other U.S. Capitol Police officers who were on duty during those chaotic hours commit­ted suicide in the days and months that followed.

At the time, I, along with many other observ­ers, spec­u­lated that the Depart­ment of Defense had dragged its feet in approv­ing the requests for DCNG deploy­ments. As my colleague Joseph Nunn and I wrote, “[I]t seems plaus­ible, if not likely, that the pres­id­ent’s beha­vior threw a wrench into the decision-making process and delayed the approval. Even if the pres­id­ent did not actively object, lawyers and others in the Defense Depart­ment ostens­ibly had to puzzle through how to proceed in a situ­ation where the Guard’s commander-in-chief was not on board.”

Since then, details have emerged suggest­ing that the Depart­ment of Defense did delay approval—al­though perhaps not for the reas­ons many of us origin­ally thought. As described by Ryan Good­man and Justin Hendrix in Just Secur­ity, it appears that top Pentagon offi­cials, includ­ing acting Secret­ary of Defense Chris Miller, were concerned in the days lead­ing up to Janu­ary 6 that Pres­id­ent Trump would attempt to use milit­ary force to disrupt the certi­fic­a­tion process. They were determ­ined to prevent this outcome. To that end, they delib­er­ately placed unusual advance restric­tions on how DCNG forces could be used on Janu­ary 6. And when the need for greater DCNG involve­ment become pain­fully appar­ent, they still hesit­ated, fear­ing (Good­man and Hendrix posit) that the pres­id­ent would “re-mission” the DCNG once deployed.

Another possible reason for the delay lies in the concerns reportedly voiced by Army offi­cials about the “optics” or “visual” of send­ing the National Guard to the U.S. Capitol while the pres­id­en­tial elec­tion was being certi­fied. At first blush, this might seem a shal­low justi­fic­a­tion, and it could well be a pretext for less benign reas­ons. But concerns about “optics” in this setting should not lightly be dismissed. In the vast major­ity of circum­stances, Depart­ment of Defense offi­cials should be reluct­ant to send troops under the command of the pres­id­ent to police the certi­fic­a­tion of a pres­id­en­tial elec­tion. They should worry, not only about the poten­tial for actual milit­ary inter­fer­ence with the elec­tion, but also about creat­ing a public percep­tion of such inter­fer­ence. If milit­ary offi­cials were slow to aban­don this default wari­ness, that is argu­ably a good sign.

We might never know for certain why the delay occurred; indeed, vari­ous actors might have had diver­gent motiv­a­tions. Whatever the reas­ons, though, the outcome would have been differ­ent if the mayor had command over the DCNG. The Metro­pol­itan Police Depart­ment was on the scene within 10 minutes; the DCNG would not have been far behind. And while National Guard forces might look the same whether they report to the mayor or to the pres­id­ent, the “optics”—and the real­ity—­would have been differ­ent in one crit­ical respect: the commander of the milit­ary oper­a­tion would not have been the same person whose reelec­tion hung in the balance.

Giving command and control of the DCNG to the mayor would also help to close a glar­ing loop­hole in the Posse Comit­atus Act, the law that prohib­its federal troops from enga­ging in domestic law enforce­ment unless expressly author­ized by Congress. The Posse Comit­atus Act applies to National Guard forces only when they have been called into federal service. But even though the DCNG is always under federal command, the Depart­ment of Justice has endorsed the legal fiction that it can oper­ate in non-federal status. That means the pres­id­ent can use the DCNG for domestic poli­cing purposes at any time, without invok­ing the Insur­rec­tion Act or any other stat­utory author­ity.

Pres­id­ent Trump took advant­age of this loop­hole in June 2020, deploy­ing Guard forces in D.C. to suppress over­whelm­ingly peace­ful protests against the police killing of George Floyd. A future pres­id­ent could stage a similar end-run around the Posse Comit­atus Act by using the DCNG to “enforce” federal elec­tion law, as he or she inter­prets it.

Of course, even if default control of the DCNG lay with the mayor, the pres­id­ent would retain the author­ity to call Guard forces into federal service. On the posit­ive side, that means trans­fer­ring command and control to the mayor would not inter­fere with a respons­ible pres­id­ent acting swiftly to deploy the DCNG in appro­pri­ate cases. By the same token, however, mayoral control would not prevent a rogue pres­id­ent from misus­ing the DCNG—or active-duty federal troops, for that matter­—to try to inter­fere with an elec­tion. The Posse Comit­atus Act would make such actions more diffi­cult, but it would not entirely fore­close them, given the broad excep­tion provided by the Insur­rec­tion Act. Local control, in other words, is not a panacea.

Nonethe­less, on Janu­ary 6, mayoral control of the DGNG could very well have saved lives, while simul­tan­eously mitig­at­ing some of the legit­im­ate concerns triggered by a pres­id­en­tial deploy­ment. In the future, mayoral control would exped­ite Guard responses to more typical local emer­gen­cies by elim­in­at­ing the bureau­cratic process of federal approval. And it would limit the pres­id­ent’s abil­ity to use milit­ary forces for law enforce­ment purposes in ways that Congress has not author­ized.

With these consid­er­a­tions in mind, lawmakers included a provi­sion trans­fer­ring command and control of the DCNG to D.C.’s mayor in the House-passed version of the National Defense Author­iz­a­tion Act for 2022 (NDAA). Unfor­tu­nately, this provi­sion was stripped from the final comprom­ise version of the bill that was signed into law. But Congress will have another oppor­tun­ity when it considers the 2023 NDAA this spring. It is time to bring command and control of the DCNG—along with other key pieces of the legal frame­work for domestic deploy­ment of milit­ary forces—out of the nine­teenth century, and to recal­ib­rate these author­it­ies to meet the precari­ous moment in which we find ourselves.