D.C. Sues Trump Administration for National Guard Deployment
Published by The Lawfare Institute
in Cooperation With
On Sept. 4, District of Columbia Attorney General Brian Schwalb filed a complaint in the U.S. District Court for the District of Columbia, alleging that the president’s mobilization and deployment of D.C. and out-of-state National Guard is unlawful. It claims the federal government violated the Administrative Procedure Act (APA) by acting contrary to statute and the Constitution and by acting arbitrarily and capriciously. It also claims that the federal government violated the separation of powers, the Take Care Clause, and the District Clause of the U.S. Constitution, and further that the federal government acted ultra vires.
The suit focuses on several aspects of the National Guard troops’ presence in the District: the legal basis on which they were called up, the scope of their duties and authorities, and the command and control structure in which they are operating.
With respect to the legal basis for mobilization, it alleges that the D.C. National Guard, despite being uniquely under the permanent command of the president, may only be activated under limited circumstances set forth in D.C. Code § 49-404. It further argues that deployment of both D.C. National Guard and out-of-state National Guard troops (including from Louisiana, Mississippi, Ohio, South Carolina, Tennessee, and West Virginia) requires the consent of D.C.’s mayor pursuant to the Home Rule Act and the Emergency Management Assistance Compact.
With respect to duties, the complaint argues that the authorities vested in the National Guard troops—namely, to conduct law enforcement functions—violate the Home Rule Act, the Posse Comitatus Act, and 10 U.S.C. § 275.
With respect to command and control, the complaint alleges that because out-of-state National Guard units are operating in Title 32 rather than Title 10 status, they can only be deployed at the mayor’s request and must remain under command and control of their respective governors rather than the president.
The suit also sets forth allegations about irreparable harm resulting from the National Guard’s presence and activities in the District. It seeks declarative relief, permanent and preliminary injunctions, a stay pursuant to 5 U.S.C. § 705, and vacatur pursuant to 5 U.S.C. § 706.
You can read the complaint here or below:
