Every other Tuesday, the team behind Civics 101 joins NHPR’s All Things Considered host Julia Furukawa to talk about how our democratic institutions actually work.
It’s been over a week since President Donald Trump deployed National Guard troops and federal agents to our nation’s capitol in the name of cracking down on crime in the city.
This comes two months after Trump deployed National Guard soldiers to Los Angeles, saying they were needed in response to protests against ICE.
Civics 101 host Hannah McCarthy spoke with Julia about the laws surrounding a president’s power to deploy the National Guard.
Transcript
Let’s start with what’s happening in Washington, D.C. What presidential powers did Trump use to deploy the National Guard there?
So the important thing to remember about Washington, D.C., is that it is not a state. It is under federal control. That means that President Trump has control over the D.C. National Guard in the same way that a governor has control over the National Guard of their state. Now under Title 32, the National Guard can be deployed for homeland defense in response to things like natural disasters and other emergencies with the approval of the president or the Secretary of Defense. Now, in this particular case, the president approved after declaring a crime emergency in Washington, D.C.
The president has since backed down from total control of the D.C. Metropolitan Police. But it's worth noting that he was authorized to seize control of the police in addition to the National Guard because of something called the District of Columbia Home Rule Act. Now this was a law that was passed in 1973 after decades of D.C. residents pushing for greater self-determination, and it provided for them to elect a mayor and district council. This act, however, still leaves legislation approval and control up to Congress, and specifically provides for the president to control the Metro Police in the case of emergencies. But that particular provision had never before been used by a president.
Trump also deployed the National Guard to Los Angeles in June. The legality of that is currently playing out in court. What’s the law at the center of the trial?
In terms of the authorization part of that, there is something called the Insurrection Act. This allows the president to deploy military forces, including the National Guard, to suppress insurrection or enforce federal law when states are not able to. Now, when Trump took control of and deployed California's National Guard, his justification was the protection of federal agents, specifically ICE agents conducting mass raids, and [the] protection of federal property amidst protests.
However, the Posse Comitatus Act — this is a one sentence provision designed to prevent military overreach — penalizes or punishes anybody who uses the military to conduct domestic law enforcement. In the lawsuit against the president, the question is actually whether or not the National Guard violated Posse Comitatus, specifically when they detained a citizen as they waited for the police to show up and arrest them. The question is not whether or not they were allowed to be there under Trump's control. The question is, did they arrest someone? Because that would mean that the military acted as domestic law enforcement, which is prohibited unless authorized by Congress or the Constitution.
Okay, back to Washington. D.C. is not a state. So what power do they have — if at all — if they want to remove the National Guard from the city?
The city cannot override the president's federalization and deployment of National Guard troops, at least not using any clear or simple legal mechanism. Trump does have even more control over the D.C. National Guard than he does the National Guards of the 50 states. The Justice Department has historically asserted that the D.C. National Guard can be used for domestic law enforcement without violating Posse Comitatus.
So basically, D.C. leadership can certainly complain. Maybe they can even resist. They can perhaps sue the president for his actions and leave it up for a judge to decide whether this is an overreach or a violation of Posse Comitatus. But on its face, this federalization is legal, even if it is considered by many to be extreme and unnecessary.
