DC National Guard Deployment Lawsuit Challenges Federal Authority

By Darius Spearman (africanelements)

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D.C. Challenges Federal Overreach

District of Columbia Attorney General Brian L. Schwalb filed a lawsuit on September 4 to stop the federal government’s deployment of National Guard troops in D.C. He argues this action creates an illegal military occupation (oag.dc.gov). Since August 11, nearly 2,300 National Guard troops have been deployed to D.C. These units, from seven different states, are under the command of the Department of Defense (weartv.com). The lawsuit was filed in the U.S. District Court for the District of Columbia (oag.dc.gov).

Many of these troops have been deputized by the U.S. Marshals Service. This deputization allows them to conduct law enforcement activities (weartv.com). The lawsuit claims this violates the long-standing prohibition against military involvement in local law enforcement. Attorney General Schwalb stated that the deployment is "unnecessary and unwanted," and "dangerous and harmful to the District and its residents" (weartv.com).

Understanding Legal Terms

The lawsuit alleges that the federal government is violating the Constitution and federal law. It claims the government is illegally using the military for law enforcement purposes (oag.dc.gov). The National Guard units in D.C. report through a military chain of command. This makes them subject to the Posse Comitatus Act and 10 U.S.C. 275 (oag.dc.gov). These laws generally prohibit federal military units from engaging in domestic law enforcement. The Posse Comitatus Act specifically prevents the use of the U.S. Army and Air Force for such purposes. While 10 U.S.C. 275 does not directly prohibit it, it outlines strict conditions for using federal troops to enforce federal law, usually requiring presidential authorization and specific circumstances (brennancenter.org).

Despite these prohibitions, National Guard units are in D.C. to address crime (weartv.com). They patrol neighborhoods with firearms and are authorized to conduct law enforcement activities. These activities include searches, seizures, and arrests (weartv.com). Historically, presidents have invoked the Insurrection Act to deploy the military for civil unrest. They would deploy either active-duty federal troops or federalized National Guard units (brennancenter.org). Section 502 of Title 32 of the United States Code details the training requirements for National Guard units (brennancenter.org).

National Guard Deployment in D.C. (August 2023)

Troops Deployed

2,300

States Represented

7

Data on National Guard deployment in D.C. as of August 2023. Source: weartv.com

D.C.'s Fight for Self-Governance

The lawsuit argues that the President deployed the National Guard without the consent of local D.C. leadership. This action violates the District's right to self-governance (weartv.com). More than 50 years ago, Congress granted D.C. the right to self-governance and control over local matters, including public safety (weartv.com). This was established through the Home Rule Act, formally known as the District of Columbia Self-Government and Governmental Reorganization Act of 1973. This act gave D.C. residents the power to elect a mayor and a 13-member Council, providing a degree of local autonomy after a century of direct congressional rule. However, Congress still retains ultimate authority over the District (brennancenter.org).

The Emergency Management Assistance Compact (EMAC), a federal law, grants the Mayor, not the President, the right to request National Guard support from other states (oag.dc.gov). EMAC is a national mutual aid agreement that allows states to share resources, including National Guard forces, during emergencies. It facilitates the deployment of aid across state lines. However, the D.C. Mayor's authority to request National Guard support under EMAC is complicated by the unique federal control over the D.C. National Guard (wusa9.com). The D.C. National Guard (DCNG) is unique among all 54 National Guard organizations because it is never under local control (brennancenter.org). The president is the commander-in-chief of the D.C. Guard and authorizes the secretary of defense to supervise and control the D.C. Guard while in its militia status (news-gazette.com).

Key Legal Terms Explained

Posse Comitatus Act

This act generally prohibits the use of the U.S. Army and Air Force for domestic law enforcement purposes, aiming to prevent military involvement in civilian affairs.

Home Rule Act (1973)

Formally the District of Columbia Self-Government and Governmental Reorganization Act, it granted D.C. residents the right to elect local officials, providing a degree of self-governance after a century of direct congressional rule.

Emergency Management Assistance Compact (EMAC)

A national mutual aid agreement allowing states to share resources, including National Guard forces, during emergencies. It facilitates aid deployment across state lines.

Definitions based on information from brennancenter.org, brennancenter.org, and wusa9.com.

Command and Control Issues

The lawsuit also claims that the federal government is illegally asserting command and control over out-of-state National Guard troops. These troops are in state militia status (oag.dc.gov). Unless called into active federal service, state National Guard troops must remain under state command and control (oag.dc.gov). The National Guard operates under a dual state-federal status. In their state militia status, they are typically commanded by the state governor. However, when federalized, they come under the command of the President of the United States. The D.C. National Guard is unique because it is always under federal control, even when not federalized for active duty (brennancenter.org).

The defendants are exercising command and control of out-of-state troops without calling them into federal service. This violates the Constitution and federal law (oag.dc.gov; oag.dc.gov). The deployment of unfederalized, out-of-state Guard troops into a nonconsenting jurisdiction would not be lawful if that jurisdiction were a state (brennancenter.org). This principle is central to the D.C. case. The D.C. Council fully supported the Mayor's request for National Guard deployment. They were "appalled that this fundamental request was denied" (wusa9.com).

Impact on D.C. Residents

Attorney General Schwalb emphasized that no American city should have the U.S. military policing its streets. This is especially true for out-of-state military not accountable to residents or trained in local law enforcement (weartv.com). He warned that while it is D.C. today, it could be any other city tomorrow. The lawsuit aims to end this "illegal federal overreach" (weartv.com). The President’s decision to deploy National Guard troops severely harms the District and its residents in several ways. It deprives the District of local autonomy granted under the Home Rule Act (weartv.com).

In addition, it threatens to undermine public safety by inflaming tensions and eroding trust between District residents and law enforcement (weartv.com). It involves large numbers of armed military personnel untrained in municipal policing patrolling D.C. streets (weartv.com). National Guard troops are primarily trained for military operations, including combat and disaster response. They are not trained for municipal policing. Their training emphasizes the use of force in a military context. This differs significantly from the de-escalation and community-oriented policing tactics required for civilian law enforcement. This difference matters legally because military personnel operating in a law enforcement capacity without proper training can lead to excessive force, civil rights violations, and a breakdown of trust. Practically, it can exacerbate tensions and lead to unintended consequences during civil unrest. The Guard’s June 2020 operation in D.C. was unprecedented; it was the first time Section 502(f) had been used for a federally requested deployment in response to civil unrest (brennancenter.org).

Furthermore, the deployment hurts the District's local economy. It drives away tourists and patrons of local businesses, especially in the restaurant and hospitality service industries (weartv.com). The D.C. Guard did not mobilize until significantly after the assault on the Capitol began. This highlights the problematic legal structure governing the D.C. Guard (brennancenter.org). This delay suggests potential harms to public safety. The lack of local control over the D.C. Guard and the denial of the Mayor's requests could erode public trust in local governance and federal responsiveness during crises.

Alleged Harms to D.C. and Its Residents

• 
  

  Deprives D.C. of local autonomy under the Home Rule Act.

  
  


• 
  

  Undermines public safety by eroding trust between residents and law enforcement.

  
  


• 
  

  Involves armed military personnel untrained in municipal policing.

  
  


• 
  

  Hurts the local economy by deterring tourists and patrons of businesses.

  
  

Allegations of harm to D.C. and its residents due to National Guard deployment. Source: weartv.com

Legal Precedents and Broader Concerns

This lawsuit follows a successful challenge to a similar National Guard deployment in California (wral.com). A federal judge ruled earlier that Trump and Defense Secretary Pete Hegseth violated federal law. They used the U.S. military for law enforcement activities in and around Los Angeles (wral.com). In June, Trump ordered 2,000 National Guard troops and hundreds of Marines into Los Angeles. This was done over the objection of California's Democratic Governor (wral.com). While the specific legal reasoning for the California ruling is not detailed, the broader context suggests that deploying unfederalized, out-of-state Guard troops into a nonconsenting jurisdiction would likely be unlawful if that jurisdiction were a state (brennancenter.org). This principle could be argued as a precedent for D.C.'s unique situation, given its lack of state-like control over its own Guard.

Other states' Attorneys General have also spoken out against the President's National Guard deployments. Washington Attorney General Nick Brown called the deployments "dangerous, illegal, and violate our founding principles" (atg.wa.gov). Brown stated that the President is taking Guard members away from their jobs and families "to create a military state in American cities and to bolster his image as an authoritarian who can do whatever he wants" (atg.wa.gov). He noted that multiple judges have found these actions unconstitutional. This includes a recent rebuke warning that Trump was "'creating a national police force with the President as its chief'" (atg.wa.gov). The federal government's defense would likely center on the President's ultimate authority over the D.C. National Guard (news-gazette.com).

Racial Justice and Community Relations

The discussion of National Guard deployments in D.C. also touches on issues of racial justice and community relations. D.C. is a predominantly African American city. The context of policing and civil unrest in such a city often raises concerns about disproportionate impact. There are also historical tensions between law enforcement and minority communities. The lack of local control over the D.C. National Guard could further exacerbate these concerns. Decisions about deployment are made by federal authorities rather than locally elected officials. This can lead to a feeling of disempowerment among residents.

The D.C. Council's strong support for the Mayor's request for National Guard deployment, and their dismay at its denial, underscores the importance of local consent. This is especially true in matters affecting public safety and community trust (wusa9.com). The unique federal oversight of the D.C. National Guard means that the formal process for consent is complicated. Unlike states where governors can consent to or deny deployment, the D.C. Mayor's request for the D.C. Guard must be approved by the President, through the Secretary of Defense. The lawsuit argues that this federal oversight bypasses the spirit of local autonomy and self-governance that D.C. seeks. This ongoing legal battle highlights the complex relationship between federal authority and local self-determination in the nation's capital.

ABOUT THE AUTHOR

Darius Spearman has been a professor of Black Studies at San Diego City College since 2007. He is the author of several books, including Between The Color Lines: A History of African Americans on the California Frontier Through 1890. You can visit Darius online at africanelements.org.