In June 2020, former-President Donald Trump and then-U.S. Attorney General William Barr summoned a large force of National Guardsmen operating under Title 32 of the U.S. Code to Washington, D.C. to police mostly peaceful protests in the wake of George Floyd’s killing. They did so against the wishes of D.C.’s elected local government and without following the procedures established by Congress in the Insurrection Act. This unprecedented deployment was only possible because of loopholes in the Posse Comitatus Act, the law that normally bars the president from using the military as a domestic police force. Congress needs to address these loopholes so that future presidents cannot repeat this abuse.
Two proposals currently before the House Armed Services Committee would be a great start. The first is the District of Columbia National Guard Home Rule Act, which would reform the outdated command structure of the D.C. National Guard—and bring it in line with every other National Guard organization in the country—by transferring command of the D.C. National Guard from the president to D.C.’s mayor. The Act has been included in the text of the 2022 National Defense Authorization Act (NDAA), an annual appropriations bill that the Committee is now considering. The second proposal is an amendment to the NDAA that has been put forward by Representative Mikie Sherrill (D-NJ). This amendment would require the consent of both the sending and receiving jurisdiction whenever National Guardsmen operating under Title 32 are deployed across state lines.
The Brennan Center supports the District of Columbia National Guard Home Rule Act’s inclusion in the NDAA and urges the House Armed Services Committee to adopt Representative Sherrill’s proposed amendment to Title 32.