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  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 wounded, one 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.
IMAGE: Members of the National Guard assist police officers in dispersing protesters who are gathering at the U.S. Capitol Building on January 06, 2021 in Washington, DC. Pro-Trump protesters entered the U.S. Capitol building after mass demonstrations in the nation’s capital during a joint session of Congress to ratify President-elect Joe Biden’s 306-232 Electoral College win over President Donald Trump. (Photo by Tasos Katopodis/Getty Images)
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