Published by The Lawfare Institute
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In his June 1 remarks responding to the widespread protests and sporadic violence that have spread across the country following the murder of George Floyd, President Trump singled out Washington, D.C., for special treatment. With respect to the 50 states, Trump demanded that governors deploy law enforcement and National Guard forces to “dominate the streets” and threatened to send in the U.S. military if they did not comply—a step he has not yet taken. In Washington, D.C., however, Trump acted more directly, deploying what he described as “thousands and thousands of heavily armed soldiers, military personnel, and law enforcement officers to stop the rioting, looting, vandalism, assaults, and the wanton destruction of property.” True to the president’s word, a medley of National Guard soldiers, federal law enforcement personnel and local police began patrolling various parts of the city within hours.
One week of peaceful protests later, many of these forces are now withdrawing. But remaining in their wake are serious questions about the legal authority under which Trump deployed them in the first place. D.C. Mayor Muriel Bowser has openly questioned this authority. D.C. Attorney General Karl Racine submitted a detailed set of questions to Attorney General William Barr, Secretary of Defense Mark Esper and White House Chief of Staff Mark Meadows seeking clarification on the legal basis for these actions. But the administration has yet to provide a public explanation.
Any answers likely lie in the unique relationship between the nation’s capital and the federal government. Washington, D.C., is an independent city with its own municipal government, including an executive in the form of a mayor and a D.C. Council that functions as a legislature. But the Constitution gives Congress “exclusive legislation in all cases whatsoever” over the nation’s capital, meaning that Congress is the ultimate governing body for the city. While Congress has ceded much of that power over time to the capital’s local government through legislation—most notably through the Home Rule Act of 1973—Congress has retained several core functions for itself and the federal government. Many aspects of D.C. law were originally enacted by Congress and cannot be amended by the city’s own institutions. Others can be amended or added to by the D.C. Council, though many such changes are subject to a waiting period and possible reversal by Congress. As a result, while D.C. substantially governs itself, it does so under the oversight and authority of Congress and, where Congress has seen fit, the broader federal government.
Here, we examine several of the outstanding legal questions raised by Trump’s protest response through this lens of federal authority. Doing so highlights the extensive amount of authority that Congress has given the president over the nation’s capital, some of which directly authorizes the sorts of activities that Trump has undertaken. Yet it also points to certain limits on the president’s authority—limits that Trump’s actions appear to have pushed up against.
Who Controls the D.C. National Guard?
One of Trump’s first responses to the protests in Washington, D.C., was to activate 1,200 members of the D.C. National Guard and deploy them throughout the city. This was a level above and beyond the 500 troops that Bowser initially requested to aid D.C.’s police department in its law enforcement and crowd control efforts. So what gave Trump the authority to deploy the National Guard without the mayor’s signoff?
Members of state National Guard units are generally responsible to both their state governments and the federal government. These roles are often referred to as the National Guard’s “Title 32” and “Title 10” statuses, respectively, in reference to the parts of the U.S. Code that regulate these two capacities. Most of the time, members of a state National Guard operate under Title 32 authorities, pursuant to the direction and control of their state governors pursuant to state law. But Congress has authorized the president to call up state National Guard troops into federal service in certain circumstances, pursuant to its constitutional authority to “call forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” When the president does this, the National Guard troops he calls up operate under their latter “Title 10” status as part of the Army (or, in the case of the Air National Guard, the Air Force).
When operating in their Title 32 capacities, National Guard troops are not subject to the normal restrictions that limit military involvement in law enforcement, known as posse comitatus. But those restrictions do apply to National Guard units acting in their Title 10 capacity, just as posse comitatus applies to active-duty military troops. The only exception is if National Guard units are operating under a specific statutory authorization, such as the Insurrection Act. (For a more complete look at these issues, see this earlier analysis for Lawfare by Anderson and Michel Paradis.)
The District of Columbia, however, is in a different situation from the states. While Congress has authorized D.C. to maintain its own National Guard unit for many years, it has not given the mayor the control that a governor of a state would have over that state’s National Guard. Instead, § 49-409 of the D.C. Code—which was originally enacted by Congress in 1889—makes the president the commander in chief of the D.C. National Guard, in the same manner that governors are usually the commanders in chief of state National Guard units under state law. Presidents have since delegated this authority over the D.C. National Guard to the secretary of defense, who has delegated it onward to the secretary of the Army.
Moreover, under § 49-103 of the D.C. Code, if there is “a tumult, riot, mob, or a body of men acting together by force with attempt to commit a felony or to offer violence to persons or property, or by force or violence to break and resist the laws, or when such tumult, riot, or mob is threatened,” three officials can request help from the president as commander in chief to order the D.C. National Guard to respond: the city’s mayor; the U.S. marshal for D.C.; and the national capital service director, who is appointed by the president and sits in the Executive Office of the President. Once the president receives such a request, he may “order out so much and such portion of the militia as he may deem necessary to suppress the same,” suggesting that he is not limited to the level of support originally requested. Less clear is whether the president could deploy the National Guard without such a request in the first place.
While no court has squarely addressed the issue, the Justice Department has long maintained that members of the D.C. National Guard may be used in a Title 32 capacity in the same manner as state National Guard units. As such, troops are not subject to posse comitatus restrictions when in this status, and they may be used for various law enforcement purposes that would be off limits if they were federalized and put under Title 10. Alternatively, even if posse comitatus restrictions did apply, the Justice Department has argued that § 49-103 of the D.C. Code and other relevant provisions serve as statutory exceptions to posse comitatus restrictions. Either way, the outcome is the same: The president is in command of the D.C. National Guard and can use the guard for law enforcement purposes without regard for posse comitatus restrictions.
Who Controls the D.C. Police Department?
Before calling in the D.C. National Guard, Trump reportedly considered another drastic step to gain direct control of the response to protesters: seizing control of the local D.C. police department. According to reports, Bowser was successful in pushing back on these efforts, which she later described as “an affront to [D.C.’s] limited home rule and to the safety of the District of Columbia.” Less clear, however, is what legal grounds she might have had for challenging that decision if the Trump administration had moved forward.
The president’s authority to take control of the D.C. police department is set forth in Section 740 of the Home Rule Act, the very law that provides for D.C. autonomy and self-rule. Section 740 allows the president to order the D.C. mayor to place the city’s police force under presidential command whenever the president “determines that special conditions of an emergency nature exist which require the use of the Metropolitan Police force for federal purposes.” In such cases, the mayor is obligated to provide such services “as the President may deem necessary and appropriate.” Notably, the act makes no effort to define “emergency” or clarify what situations would justify federalizing the D.C. police.
After exercising this authority, the president has 48 hours to notify the House and Senate committees with oversight powers over D.C. of the reasons behind his decision and the “period of time” that he anticipates needing to command the city’s police force. Once he has notified Congress, the president has continued authority over the D.C. police for 30 days unless the emergency concludes or Congress passes a joint resolution terminating that authority—which would be subject to presidential veto. The House and Senate, however, can pass a joint resolution extending the 30-day period.
No prior president appears to have invoked Section 740, meaning that there would be no guiding precedent if Trump were to commandeer the D.C. police force. If Trump’s authority were to be challenged in federal court—as Bowser and Racine hinted in the midst of the crisis—the central issue would most likely be the interpretation of “special conditions of an emergency nature” within the context of the Home Rule Act. That said, as Congress did not define these terms but instead chose to make both the determination of whether such conditions exist and the appropriate response contingent on the president’s subjective evaluation of the circumstances, any such challenge would seem likely to face an uphill battle in court.
Can the President Deploy Federal Troops to D.C. Over the Mayor’s Objections?
The Trump administration also appears to have considered deploying active-duty military personnel to the streets of Washington, D.C. Trump reportedly favored this option but met with resistance from some of his senior military advisers. Nonetheless, for several days, the Defense Department did put several active-duty Army units totaling roughly 1,600 troops on alert in the broader D.C. area “as a prudent planning measure” in case they were needed to support local law enforcement within the city. Nor does the federal government appear to have consulted with Bowser on whether she was willing to consent to such a deployment.
Statutory posse comitatus restrictions generally prohibit deployment of active-duty military—or federalized National Guard troops acting in their Title 10 capacity—for the purposes of law enforcement unless expressly authorized by statute. An array of existing authorizations allow the military to provide various types of indirect support to law enforcement, ranging from intelligence to transportation services. But the only applicable statutory authorization that allows the president to use soldiers to arrest, detain, seize, or otherwise participate in law enforcement activities that risk a violent confrontation with civilians is the Insurrection Act.
There may be reasonable grounds for questioning whether the Insurrection Act can be applied to the District of Columbia in the same manner as it can be applied to other parts of the United States. The plain language of the Insurrection Act authorizes the president to deploy soldiers only to “a state,” a term that Congress expressly defines to include Guam and the U.S. Virgin Islands—but not Washington, D.C. (or other U.S. territories, including Puerto Rico). Past practice, however, has generally extended the Insurrection Act to the nation’s capital. Most notably, President Lyndon Johnson invoked the Insurrection Act without serious legal objection to send active-duty and federalized National Guard troops into D.C. to quell the riots that followed the 1968 assassination of Rev. Martin Luther King, Jr.
There is also reason to doubt whether the Insurrection Act is constitutional in so far as it authorizes the president to deploy U.S. troops in response to simple “domestic violence.” As law professor William Banks has argued, Article IV of the Constitution obligates the federal government to protect “every state ... against domestic Violence” but only “on Application of the Legislature, or of the Executive (when the Legislature cannot be convened).” The Insurrection Act’s authorization to use the military to address “domestic violence” even without that consent is arguably inconsistent with this constitutional requirement. Nonetheless, several presidents have done so, including Johnson in 1968 in relation to “domestic violence and disorder” in Illinois and the same in the Virgin Islands in 1989. Moreover, it’s not clear whether this constitutional requirement would apply to D.C., as it is not a state.
Regardless, if the president does deploy federal troops under the Insurrection Act or another statute in a manner consistent with the federal government’s constitutional authority, then the consent of the territory in which they are being deployed is not needed. That is true regardless of whether it’s a state or Washington, D.C. While one provision of the Insurrection Act is premised on a request for assistance from a state legislature, the others are specifically designed for use in situations where a state has not consented so as to restore the operation of the federal justice system, to help enforce civil rights, or to oppose efforts to obstruct the enforcement of federal law. These provisions were used in the 1950s and 1960s to enforce desegregation orders and protect civil rights advocates in the South, often over the vociferous objections of state officials. If these exercises of authority were valid over state objections, then similar actions could almost certainly be directed in D.C. without the consent of the city’s mayor.
In other words, the legality of many domestic deployments of active-duty forces hangs primarily on the statutes authorizing those deployments, not the consent of the states and other territories in which they are operating.
Can the Federal Government Deploy Armed Law Enforcement to D.C. Without the Mayor’s Permission?
One of the most controversial components of Trump’s response to the protests in D.C. has been his deployment of a diverse array of heavily armed federal law enforcement officers to patrol streets and high-profile areas around the city. Many officers have reportedly refused to identify themselves, adding further fuel to the debate raging around their presence in the capital.
The federal government has always enjoyed a unique law enforcement role in the city. For example, Washington, D.C., does not have a traditional District Attorney’s Office that prosecutes violations of local criminal law. Instead, the U.S. Attorney’s Office for D.C. prosecutes those offenses in addition to violations of federal criminal law. About 29 percent of the land in D.C. is federally owned, giving federal law enforcement officers primary jurisdiction over crimes taking place inside those boundaries. Moreover, the local D.C. police have entered into cooperative agreements with some of the 32 federal law enforcement agencies that operate within the city, which allow members of those agencies to make arrests for violations of federal and local law in expanded patrol areas outside of federal land. This provides federal law enforcement agencies with substantial jurisdiction in much of the city.
On top of the usual federal law enforcement presence in D.C., the Trump administration has also relied on wide-ranging statutory authority that provides generous latitude in reassigning federal law enforcement agents to new duties. For example, the Bureau of Prisons (BOP) explained that its agents were operating in D.C. under the direction of the U.S. Marshal Service (USMS), which had deputized the BOP personnel. As Robert Chesney has noted, the primary mission of the USMS is to protect the federal judiciary and track down fugitives. Under 28 U.S.C. § 561, however, the agency is authorized to “exercise such other functions as may be delegated by the Attorney General.” Adding to the scope of that broad power, the agency may deputize an array of law enforcement officers, including federal, state and local personnel “whenever the law enforcement needs of the U.S. Marshals Service so require.” Combined with the latitude the attorney general enjoys in deploying the USMS, the service’s ability to deputize law enforcement officers means that it can send armed agents from numerous federal agencies to D.C., even over the mayor’s objections. Once in the city, those deputized agents can perform whatever broad function that the attorney general has assigned to the USMS.
Nor is the BOP the only federal agency that can be assigned by the attorney general to law enforcement missions outside of its main mission. Another prominent example is the Drug Enforcement Administration (DEA). Tasked primarily with pursuing drug traffickers, under 21 U.S.C. § 878(a)(5), the DEA is also empowered to “perform such other law enforcement duties as the Attorney General may designate.” The agency cited that power in a memorandum that it sent to Deputy Attorney General Jeffrey Rosen, in which it requested that it be “designated to enforce any federal crime committed as a result of protests over the death of George Floyd” on a “nationwide basis” for 14 days. The Justice Department approved that request, and DEA supervisors in New York City quickly sent a team of elite agents to D.C. to “assist with security” related to the protests.
But the USMS and DEA are only two of the many federal agencies that have sent personnel to D.C. in the past week under the auspices of expansive statutory authorities. There is no way to pin down the exact legal basis for the various actions being undertaken by federal law enforcement in Washington, D.C. Doing so would require more specific knowledge of the activities undertaken by those various agencies and the locations where they operated, as well as internal agency delegations and legal interpretations that may not be available to the public. That said, the examples of the BOP and DEA underscore the flexibility that these authorities often provide the attorney general in using federal law enforcement officials, especially in a city like Washington, D.C., where the federal government is able to exercise widespread jurisdiction.
Can Other Governors Deploy Their National Guards to D.C. Without the Mayor’s Permission?
Finally, in addition to mobilizing the D.C. National Guard, the Trump administration made an unusual request this past week: Through a personal appeal by Secretary of Defense Esper, the administration asked individual state governors from around the country to voluntarily send state National Guard forces to assist military efforts in Washington, D.C. While some governors assented, several refused—in part because the request was opposed by Bowser, whose administration was reportedly examining “every legal question about the president’s authority to send troops” and had submitted a request to Trump administration officials requesting information on the legal authority under which state National Guard forces had been deployed. On June 5, Bowser wrote to each governor that had sent National Guard forces to Washington, D.C., and requested that they be removed, as they were brought into the city “without [her] knowledge and not at [her] request” and their presence had proved counterproductive. By June 7, the Defense Department announced that it was sending these outside National Guard units home.
Among other relevant authorities, the Constitution empowers Congress, not the president or the individual states, to “call forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” Congress has used this authority to enact statutes that allow the president to address civil unrest through different methods—most notably the Insurrection Act, which allows the president to federalize states’ National Guards and place them under his Title 10 authority in certain circumstances of civil unrest.
Yet the Trump administration is not using a statutory authority to call states’ National Guard forces to D.C. If it were, it would be able to require the states to contribute National Guard forces in their Title 10 capacity. Instead, by simply requesting that state governors voluntarily contribute forces, the president is leaving those forces in their Title 32 capacity, meaning they are not subject to posse comitatus restrictions. At the same time, however, Esper reportedly asked governors to place those forces “under the D.C. National Guard’s command and control,” placing them back under the president’s authority—rather than that of the various governors—due to the unique role of the D.C. National Guard. By doing so, the Trump administration has arguably emulated the effects of the Insurrection Act and related authorities while bypassing the various limitations and requirements that Congress deliberately chose to impose.
Is this end-run around the Insurrection Act legal? The only federal legal authority that seems directly relevant to this issue is the Emergency Management Assistance Compact (EMAC), an interstate compact that Washington, D.C., and certain other non-state U.S. territories also participate in. EMAC is intended primarily “to provide for mutual assistance between the states entering into this compact in managing any emergency disaster” and has been authorized by Congress and incorporated into the laws of all 50 states and the District of Columbia. Under EMAC, governors—or, in the case of D.C., the mayor—may declare an emergency and request needed assistance from each other, including the use of National Guard forces. This would allow Bowser—but not the president or the secretary of defense—to request the presence of National Guard troops in Washington, D.C., in certain circumstances.
EMAC also sets specific limits on the purposes for which it may be used, specifically in relation to the Insurrection Act and posse comitatus restrictions. Specifically, Article XIII of EMAC states:
Nothing in this compact shall authorize or permit the use of military force by the National Guard of a state at any place outside that state in any emergency for which the President is authorized by law to call into federal service the militia, or for any purpose for which the use of the Army or the Air Force would in the absence of express statutory authorization be prohibited under [posse comitatus restrictions].
This provision would seem to prohibit the use of National Guard forces in circumstances covered by the Insurrection Act or for purposes that would violate posse comitatus restrictions if pursued by active-duty personnel. Both restrictions would be a problem for some of the activities that state National Guard forces have been pursuing in Washington, D.C., in recent days.
The Trump administration may have legal arguments as to why Esper can make requests under EMAC, or why its use of state National Guard forces is neither redundant with the Insurrection Act nor prohibited by posse comitatus. The more likely explanation, however, is that Esper made his request for state National Guard forces outside of EMAC channels, on the theory that Congress did not intend for EMAC to be the exclusive means of making such requests. If so, this would mean that the state National Guard deployments to D.C. would not benefit from the many protections that EMAC provides to both participating states and deployed personnel, including its array of liability protections. This may make it easier for private plaintiffs to sue such personnel for damages. Perhaps states that have contributed National Guard forces to the effort in D.C. may find that decision to be more costly than initially expected if it results in litigation.
Meanwhile, absent any clear statutory authorization or prohibition, the question of whether the president can make such a request outside of the channels set out in EMAC falls within what Justice Robert Jackson once famously called “a zone of twilight in which [the president] and Congress may have concurrent authority, or in which its distribution is uncertain.” In such scenarios, the Supreme Court has often looked to past practice to determine the contours of the president’s authority. That said, we are unaware of any historical precedents for out-of-state National Guard troops being deployed to D.C. in their state capacity upon request from the president. To the contrary, Congress has enacted several statutes that authorize other actions to address comparable situations, several of which—specifically, the Insurrection Act and posse comitatus restrictions—the EMAC regime is careful to reinforce.
This arguably implies that Congress did not intend to permit the executive branch to pursue alternative means of addressing situations of civil unrest. And while some observers have argued that the courts should be especially deferential to the president’s use of the military in the context of foreign affairs and national security, such deference is far more difficult to justify where military personnel are being used for domestic law enforcement.
Together, these factors seem to weigh against the conclusion that Trump has the authority to bring outside National Guard forces into Washington, D.C., and place them under his command without complying with the requirements of the Insurrection Act and posse comitatus restrictions. Ultimately, however, the decision will be up to the courts, if and when the president’s actions are legally challenged.
How the judiciary might respond is unclear. At least some judges are likely to be hesitant to interfere in such a sensitive area too aggressively, particularly as the question arguably raises an array of separation of powers concerns. As a result, despite serious questions about the president’s legal authority, there may not currently be an effective legal mechanism for checking his actions in the short term—at least, absent further action from Congress.
Does It Have to Be This Way?
For or better or worse, Congress has given the president and other federal officials substantially more control over activities in Washington, D.C., than in the states. As a practical matter, this has allowed them to respond to the recent protests and civil unrest with an array of tactics that would not be available against similar civil unrest in the states. The legal basis for some are questionable. But others reflect long-standing statutes that simply give the president far more control over our nation’s capital than other parts of the country.
Yet what Congress has given, Congress can take away. Nearly all of the president’s authority over Washington, D.C., is provided by Congress, not the Constitution, and is thus subject to legislative regulation. Recognizing this, Rep. Eleanor Holmes Norton—who represents D.C. in the House of Representatives as a nonvoting delegate—has repeatedly introduced legislation that would remove some of the authorities Trump has relied on over the past week, including his command over the D.C. National Guard and authority to federalize the D.C. police. And while these measures have been unsuccessful so far, the past week’s experience may make members of Congress newly receptive to calls for greater D.C. independence.
Any such statutory independence, however, would be subject to the ongoing control of Congress and could be rolled back or superseded in the future. The only way for Washington, D.C., to gain the same level of legal protection as the states is to become one. City officials and activists in D.C. have advocated for statehood for many years and have been engaged in a multi-year process to draft a state constitution and other elements of a petition for statehood. Article IV of the Constitution gives Congress the authority to admit new states into the union, though—because D.C. used to be part of Maryland and, in some models for D.C. statehood, would incorporate small parts of Virginia when becoming a state—doing so may also require permission from those neighboring states’ legislatures.
In light of recent events, Democratic leaders in the House have recently recommitted to holding a vote on D.C. statehood by the end of the year. The move to statehood has also been endorsed by the Democratic candidate for president, Joe Biden, and appears to be viewed favorably by every Democratic member of the Senate. Perhaps Trump’s decision to flex the federal government’s unique authority over the capital could have an ironic result: accelerating the process that finally places D.C. on equal footing with the states.