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Why DC’s Mayor Should Have Authority Over the DC National Guard

The delayed response to the assault on the Capitol vividly illustrates the need for reform.

This origin­ally appeared in Just Secur­ity.

The nation watched in horror Wednes­day as a mob of viol­ent Trump support­ers broke into the U.S. Capitol build­ing—climb­ing over barri­ers, scal­ing walls, break­ing windows—in an attempt to prevent members of Congress from perform­ing their consti­tu­tional role in the demo­cratic elect­oral process. For reas­ons that Congress must quickly get to the bottom of, the Capitol Police did not prevent the inva­sion and, for several hours, did not dispel the invaders. Pres­id­ent Trump remained silent, other than a quick video message in which a request to “go home” was sand­wiched between claims that the elec­tion had been “stolen” and warm praise of the insur­rec­tion­ists.

Ulti­mately, the D.C. National Guard was deployed, along with Guard forces from Virginia and Mary­land and rein­force­ments from the FBI and the Metro­pol­itan Police Depart­ment. But the D.C. Guard did not mobil­ize until signi­fic­antly after the assault on the Capitol began. The delayed deploy­ment raises ques­tions that high­light the prob­lem­atic legal struc­ture govern­ing the D.C. Guard—and vividly illus­trate the need for reform.

The Legal Frame­work: A Local Mili­tia Under Federal Control

There are fifty-four National Guard organ­iz­a­tions in the United States: one for each state as well as Puerto Rico, Guam, the U.S. Virgin Islands, and the District of Columbia. Of these, only the D.C. National Guard (DCNG) is never under local control. Instead, under § 49–409 of the D.C. Code—which was enacted by Congress and pred­ates the creation of D.C.’s local govern­ment—the pres­id­ent is at all times the DCNG’s commander-in-chief. By contrast, all other National Guard units report to their state or territ­orial governor unless and until they are feder­al­ized. Moreover, the DCNG is feder­ally funded, while other Guard units are state funded unless they are feder­al­ized or perform­ing a federal mission under Title 32.

Through Exec­ut­ive Order 11485—which also pred­ates the creation of D.C.’s local govern­ment—the pres­id­ent’s author­ity over the DCNG has been deleg­ated to the Secret­ary of Defense. In turn, this author­ity has been further deleg­ated by memor­andum to the Secret­ar­ies of the Army and Air Force for the D.C. Army National Guard and D.C. Air National Guard, respect­ively. The secret­ar­ies exer­cise this author­ity through the Command­ing General of the DCNG, who is appoin­ted by the pres­id­ent and fulfills the same role as the Adjut­ant General of a state National Guard organ­iz­a­tion.

In theory, even though it reports through a federal chain of command, the DCNG can oper­ate as a “mili­tia”—i.e., in non-federal status. In prac­tice, however, the distinc­tion is almost entirely semantic. Even in cases of purely local concern, neither the mayor nor any other D.C. offi­cial has the author­ity to call up the Guard. Exec­ut­ive Order 11485 author­izes the Secret­ary of Defense, “subject to the direc­tion of the Pres­id­ent as Commander-in-Chief,” to “order out the National Guard under title [49] of the District of Columbia Code to aid the civil author­it­ies of the District of Columbia.” As a matter of prac­tice, whenever the mayor “desires civil support from the DCNG,” she submits a request to the Command­ing General, who noti­fies the Secret­ary of the Army.

The legal author­ity for this assist­ance is bifurc­ated. In the event of riots or other civil unrest in the District, D.C. Code § 49–103 allows the mayor to ask the pres­id­ent, whose author­ity as commander in chief of the DCNG has been deleg­ated to the Secret­ary of the Army as described above, to deploy the DCNG to suppress the disturb­ance. For requests that do not involve riots or unrest, the Attor­ney General gener­ally cites the DCNG’s status as part of the “enrolled mili­tia” under D.C. Code § 49–404 as author­ity for the DCNG to provide assist­ance to civil author­it­ies. In either case, the DCNG is considered to be acting in a “mili­tia status” on behalf of the District; however, it remains under federal control.

Supple­ment­ing this legal frame­work for internal deploy­ment is the Emer­gency Manage­ment Assist­ance Compact (EMAC). EMAC is a Congres­sion­ally-rati­fied agree­ment among the fifty states, the District of Columbia, Puerto Rico, Guam, the U.S. Virgin Islands and the North­ern Mari­ana Islands that facil­it­ates deploy­ment of National Guard troops and other resources across juris­dic­tions to respond to natural disasters and other emer­gen­cies. The author­ity to request assist­ance from other states’ National Guard units under EMAC lies with the mayor of the District of Columbia rather than the pres­id­ent. However, deploy­ment of out-of-state Guard units on federal prop­erty requires Defense Depart­ment approval. Moreover, under Article XIII of EMAC, out-of-state Guard units are effect­ively subject to the PCA and cannot directly engage in core law enforce­ment activ­it­ies while deployed in the juris­dic­tion that reques­ted assist­ance.

The Prob­lems With Federal Control Over the D.C. Guard: Two Case Stud­ies

This bizarre legal frame­work leads to at least two major prob­lem­s—both of which have recently reared their heads.

First, it creates a major loop­hole in the Posse Comit­atus Act (PCA). The PCA embod­ies a long­stand­ing tradi­tion against milit­ary involve­ment in civil­ian affairs. It bars federal troops from parti­cip­at­ing in law enforce­ment func­tions absent an express author­iz­a­tion by Congress, such as the Insur­rec­tion Act. When National Guard troops are oper­at­ing in federal status, under the command and control of the pres­id­ent, they are subject to the PCA. In D.C., however, the Depart­ment of Justice has adop­ted the legal fiction that the DCNG may oper­ate in non-federal status even though it is always under the pres­id­ent’s command and control and is always feder­ally funded. That means the pres­id­ent can use the DCNG for law enforce­ment purposes without having to invoke the Insur­rec­tion Act or rely on any other stat­utory PCA excep­tion.

This prob­lem was on display last June, when National Guard forces from D.C. and 11 states were deployed in the nation’s capital in response to protests against police brutal­ity. Not only was the pres­id­ent able to use the DCNG for law enforce­ment purposes without an Insur­rec­tion Act invoc­a­tion or other PCA excep­tion; he effect­ively had the same power over the state Guard units. These units were nomin­ally under their governors’ command and control, but for coordin­a­tion purposes, they were report­ing through the DCNG chain of command—and that meant they were taking orders from the Secret­ary of the Army, who in turn acted under the direc­tion of the Secret­ary of Defense and the pres­id­ent. Func­tion­ally, this was the equi­val­ent of a large-scale feder­al­iz­a­tion of the Guard to perform a domestic poli­cing func­tion—ex­actly what the PCA was designed to prevent.

The second prob­lem is in some ways the flip side of the first. There are situ­ations in which the mayor of Wash­ing­ton, D.C. requires the use of the DCNG for the same purposes that any state governor might need Guard support, includ­ing assist­ance with natural disaster relief, public health crisis response, and—in cases where local law enforce­ment is over­whelmed—­keep­ing public order. Unlike every other exec­ut­ive head of a U.S. state or territ­ory, however, the mayor has no abil­ity to deploy the Guard for such purposes without the consent of the federal govern­ment, and without the pres­id­ent exer­cising ulti­mate command and control. At best, this system creates unne­ces­sary delay in situ­ations where time may be of the essence. At worst, it can inter­fere with effect­ive local response to emer­gency situ­ations and cost lives.

What happened yester­day is poten­tially a stark example. When the siege of the Capitol began, threat­en­ing the safety of D.C. resid­ents and creat­ing public disorder in the District, Mayor Muriel Bowser reques­ted full deploy­ment of the DCNG; she also reques­ted assist­ance from the governors of Virginia and Mary­land under EMAC. It is not clear yet exactly when she made this request, but depend­ing on that timing, it took anywhere from 30 minutes (as Depart­ment of Defense offi­cials have claimed) to two hours to secure approval.

The reas­ons for the delay are currently unclear, with conflict­ing reports adding to the confu­sion. Accord­ing to one AP article, the Depart­ment of Defense (DoD) asked the Capitol Police on Janu­ary 3 whether they would need National Guard support, and the Capitol Police declined. This suggests that DoD was ready and will­ing to approve DCNG deploy­ment. On the other hand, Mary­land Governor Larry Hogan stated that he asked for DoD approval to answer Mayor Bowser’s call for help, that his request was repeatedly denied at first, and that it took more than 90 minutes to secure approval. The New York Times cited one source as saying that Pres­id­ent Trump initially “rebuffed and resisted requests to mobil­ize the National Guard.” DoD offi­cials, however, have stated that they were merely being cautious about milit­ary involve­ment in elec­tion-related activ­it­ies.

Clearly, there is a need for a compre­hens­ive invest­ig­a­tion to estab­lish the relev­ant facts. Pending more inform­a­tion, however, what seems certain is that Pres­id­ent Trump was in no hurry to restore order. Under Exec­ut­ive Order 11485, the Defense Depart­ment may approve a mayoral request for DCNG deploy­ment “[s]ubject to the direc­tion of the Pres­id­ent as Commander-in-Chief.” Although DoD ulti­mately approved the request after consulta­tion with the Vice Pres­id­ent and others (reports that Pence himself “approved” the deploy­ment appear to be a misread­ing of his role), it 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. In the mean­time, insur­rec­tion­ists paraded through the Capitol, waving Confed­er­ate flags and help­ing them­selves to the contents of lawmakers’ desks and computers. At least 50 police officers were woundedone fatally, and a woman was shot and killed.

The Trump admin­is­tra­tion has illus­trated so many flaws in our legal systems, it is hard to know where to begin in seek­ing reforms. But after yester­day, control over the D.C. National Guard must be added to the list. As Steve Vladeck and others have argued, Congress should give the mayor of D.C. control over the DCNG absent feder­al­iz­a­tion—­something Congress can do without resolv­ing the separ­ate and more complic­ated issue of D.C. state­hood. Doing so would prevent the pres­id­ent both from misus­ing the DCNG as his own personal army, and from block­ing or delay­ing proper uses of the DCNG by the elec­ted leader of the District.