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Analysis

Three Fixes to Prevent Another Battle of Lafayette Square

A year after federal forces violently cleared the park near the White House, the legal loopholes that militarized D.C. remain wide open.

June 17, 2021

This article origin­ally appeared in Defense One

One year ago, a mix of soldiers and federal law enforce­ment, wield­ing tear gas and shoot­ing rubber bullets, cleared a crowd of people lawfully protest­ing police brutal­ity after the murder of George Floyd from Wash­ing­ton, D.C.’s Lafay­ette Square. Then-Pres­id­ent Donald Trump and Attor­ney General William Barr had orches­trated the oper­a­tion so the pres­id­ent could pose for a photoshoot at St. John’s Epis­copal Church. At the same time, thou­sands of Guards­men from eleven states deployed into Wash­ing­ton at Trump’s invit­a­tion, over the objec­tions of D.C. Mayor Muriel Bowser.

By direct­ing the National Guard to police protests in D.C. and threat­en­ing to use the milit­ary around the coun­try, Trump viol­ated long­stand­ing norms keep­ing our milit­ary above the polit­ical fray, includ­ing the bedrock demo­cratic prin­ciple known as posse comit­atus. Nearly 150 years ago, Congress enshrined that prin­ciple into law with the Posse Comit­atus Act, which prohib­its the use of federal milit­ary force for domestic poli­cing except as specified by law. Yet Trump and Barr exploited loop­holes in the Act to flood down­town D.C. with troops without any express congres­sional author­iz­a­tion.

A year later, those loop­holes remain wide open, threat­en­ing civil­ians’ consti­tu­tional rights— includ­ing the funda­mental right to protest govern­ment policies and prac­tices. Now is the time for Congress to close them to prevent another Lafay­ette Square under a future admin­is­tra­tion. Three fixes would go a long way in address­ing the prob­lems that allowed Pres­id­ent Trump to milit­ar­ize D.C., and they should be on the table as Congress considers defense author­iz­a­tion legis­la­tion over the coming weeks. 

First, Congress should rethink the command struc­ture of the D.C. National Guard. In every other state or U.S. territ­ory, the Guard is under the governor’s command and control unless called into federal service. Only the D.C. National Guard is always under the pres­id­ent’s command and control—a relic of an era when D.C. had no local govern­ment and was entirely under federal rule. Despite this arrange­ment, the Depart­ment of Justice has long endorsed the legal fiction that D.C.’s Guard, like other state Guard units, can oper­ate in non-federal status. And because the Posse Comit­atus Act only applies to Guard forces when they have been feder­al­ized, that means the pres­id­ent can use the D.C. Guard to conduct domestic law enforce­ment at will, without having to invoke any stat­utory exemp­tion to the Posse Comit­atus Act. 

The pres­id­ent’s control over the D.C. National Guard also hampers its flex­ib­il­ity in an emer­gency. A vivid example of that prob­lem occurred on Jan. 6. When the attack on the Capitol complex began, the mayor imme­di­ately reques­ted deploy­ment of the Guard, but it took over an hour for the exec­ut­ive branch to approve the request and over three hours for Guard forces to reach the Capitol. 

A simple fix to both prob­lems would be to align D.C. with every other state and territ­ory by trans­fer­ring control of its Guard forces from the pres­id­ent to D.C.’s mayor. This would allow the mayor to act quickly and flex­ibly to use the Guard for law enforce­ment purposes. The pres­id­ent could still assume command of the Guard by call­ing it into federal service, but the Guard would then be bound by the Posse Comit­atus Act and could be used for poli­cing purposes only as allowed by law.

Second, Congress should clarify that governors may not deploy their Guard units into other states or territ­or­ies without those juris­dic­tions’ consent. This limit­a­tion is argu­ably inher­ent in the Consti­tu­tion. Nonethe­less, Barr claimed that a law permit­ting National Guard units to oper­ate in “hybrid status”—namely, carry­ing out federal missions while remain­ing under state command and control—al­lows governors to deploy their Guard forces out of state even if the host state or territ­ory objects. 

This unpre­ced­en­ted inter­pret­a­tion not only threatens state sover­eignty; it further under­mines the prin­ciple of posse comit­atus. In hybrid status, Guard units are exempt from the Posse Comit­atus Act because they are oper­at­ing under state command. A key element of state command is the governor’s abil­ity to decline a given federal mission. If, however, any governor can send Guard forces into any other juris­dic­tion, the right to refuse becomes illus­ory. All the pres­id­ent would need is one will­ing governor in order to use Guard forces as a domestic police force anywhere in the coun­try. Last June, Pres­id­ent Trump found eleven.

Finally, Congress must ensure that the applic­ab­il­ity of posse comit­atus turns on the facts on the ground, not on legal nomen­clature. Out-of-state Guard troops in D.C. last June were exempt from the Posse Comit­atus Act because they were nomin­ally under the command and control of their governors. In prac­tice, though, Defense Depart­ment offi­cials confirmed that those out-of-state units repor­ted up through the D.C. National Guard’s chain of command—to the pres­id­ent. To ensure future pres­id­ents can’t use state governors as cover to wield the National Guard as federal police, Congress should clarify that the Posse Comit­atus Act applies in any situ­ation where National Guard units report up to the pres­id­ent or the pres­id­ent’s designee.

To be sure, there can be legit­im­ate reas­ons for the pres­id­ent to deploy troops domest­ic­ally, such as provid­ing disaster relief, repelling inva­sion, or enfor­cing civil rights laws. Congress has provided ample author­ity for the pres­id­ent to use the milit­ary for those purposes, and none of the above reforms would prevent a pres­id­ent from lawfully exer­cising those powers. Rather, these reforms would close danger­ous loop­holes to prevent the National Guard from being abused, misused, or dragged into partisan polit­ics.

As our demo­cracy comes under increas­ing strain, reforms are needed to harden our insti­tu­tions against future abuses. Ensur­ing that the pres­id­ent cannot use the National Guard as a federal police force on a whim must be a key part of that project.